SZAMW v Minister for Immigration
[2008] FMCA 861
•30 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAMW v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 861 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether breach of s.425(1) of the Act – procedural fairness – merits review not function of judicial review – whether Tribunal properly considered applicant’s explanation for corroborative evidence from his uncle – weight to be accorded to uncle’s evidence. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 425, 474 |
| SZGTZ v Minister for Immigration & Anor [2007] FMCA 1898 SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Abebe v The Commonwealth of Australia (1999) 197 CLR 510 Lee v Minister for Immigration & Multicultural affairs & Indigenous Affairs [2005] FCA 464 |
| Applicant: | SZAMW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 930 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing date: | 23 June 2008 |
| Date of Last Submission: | 23 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 30 June 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr T. Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application filed on 9 April 2008 and the amended application filed on 23 June 2008 are dismissed.
The Applicant to pay the First Respondent’s costs fixed in the sum of $5,000 payable within five (5) months of the date of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 930 of 2008
| SZAMW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 13 March 2008 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.
Background
The applicant was born on 15 February 1978. He claims to be a national of Sri Lanka, of Tamil ethnicity, and of Muslim faith.
The applicant arrived in Australia on 17 February 2001 on a Sri Lankan passport issued in his own name.
The applicant lodged an application for a protection visa on 6 March 2001 on the basis that he feared persecution by reason of his imputed political opinion with the Liberation Tigers of Tamil Eelam (LTTE) (Court Book (CB) 1-28).
On 31 May 2001 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Refugees Convention (see Legislative framework).
The applicant sought review of the delegate's decision and the Tribunal, differently constituted, (the first Tribunal), affirmed the delegate's decision on 17 March 2003. The applicant sought review of the first Tribunal's decision by the Federal Magistrates Court and on
1 June 2004, Raphael FM set aside the decision and by consent remitted the matter to the Tribunal to be determined according to law.
The Tribunal, differently constituted, (the second Tribunal), affirmed the delegate's decision on 20 May 2005. The applicant sought review of the second Tribunal's decision by the Federal Magistrates Court and on 27 April 2006, Emmett FM set aside the decision and by consent remitted the matter to the Tribunal to be determined according to law.
The Tribunal, differently constituted, (the third Tribunal) affirmed the delegate's decision on 24 July 2006. The applicant sought review of the third Tribunal's decision by the Federal Magistrates Court and on 23 November 2007, Raphael FM set aside the decision and remitted the matter to the Tribunal to be determined according to law: SZGTZ v Minister for Immigration & Anor [2007] FMCA 1898.
The matter came before the present Tribunal pursuant to the Order of the Federal Court.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (the Convention).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 8 February 2008, the Tribunal sent a letter to the applicant inviting him to appear before it to give oral evidence and present arguments.
The Tribunal held a hearing on 7 February 2008 (CB 328-329) which was adjourned because of the interpreter’s illness (CB 391.7) to 15 February 2008 (CB 336-337).
The applicant’s claims and evidence
The applicant claimed that in October 1999, he and his room-mate, Muraly, were stopped at a checkpoint in Wellawatte, Sri Lanka. The army and police personnel asked for their National Identity Cards. Muraly was hit and kicked and the applicant was asked to enter the jeep. They were questioned and taken to the police station where they were hit, kicked and questioned on various matters, including about the LTTE and various bombings in and around Colombo. The applicant was detained for six days without food or access to proper toilet facilities. He suffered a lot but was not allowed to see a doctor.
The applicant was released on 29 October 1999 after his uncle paid a bribe, but he was arrested again two days later and told that Muraly’s friend was a member of the LTTE. As a result, his uncle was told that the authorities might arrest and kill the applicant at any time. The applicant then left Sri Lanka for Hong Kong on 17 December 1999 where he lived for 14 months before coming to Australia in February 2001. He claimed that the police in Sri Lanka were visiting his house and asking about his whereabouts, and that his brother had recently been arrested.
The applicant claimed that he would be tortured and killed if he were to return to Sri Lanka for reason of being a suspected LTTE supporter.
The Tribunal’s findings and reasons (CB 398-404)
I accept that the first respondent accurately summarises the Tribunal's Findings and Reasons as follows:
·the Tribunal found that the applicant was not credible and his claims untrue, rejecting his claim to suffer from memory loss, and finding that the applicant’s knowledge of Muraly [his flatmate] and his friends Rajah and Suresh was incongruent with the Applicant’s claims that he knew them for several months; that his claimed periods of arrest were inconsistent with independent county information concerning the seriousness with which suspected LTTE activity was regarded by the Sri Lankan authorities in 1999; and that his failure to claim refugee status in Hong Kong raised serious doubts as to the veracity of his claims.
·the Tribunal did not place weight on material the applicant had obtained from family members, including a letter from his uncle in 2006 which sought to set out in detail a conversation the uncle had with the Officer in Charge of police in 1999, noting a number of difficulties with this evidence. In the result the Tribunal did not accept the Applicant’s claim to have been arrested in 1999 on suspicion of LTTE-involvement, and found that his claimed fears of such harm in future were not well founded, and that there was no Convention related reason why he could not return to Sri Lanka.
In conclusion, the Tribunal found that:
In essence, for reasons of credibility as discussed above and in consideration of the evidence as a whole, the Tribunal does not accept that the applicant was arrested on either occasion, detained or ill treated by reason of any political opinion actual or imputed or by reason of his religion, or as a Tamil speaking Muslim from Sri Lanka or any other Convention related reason, or that the authorities have gone to his home in Sri Lanka or that they have taken his younger brother, a that he has political profile that would be of any interest to the Sri Lankan authorities, or that they have any continued adverse interest in him, or that he would be harmed by the Karuna group for his claimed imputed association with the LTTE or any other reason, or that he would suffer any future LTTE-affiliated harm for reasons of his religion or being a Tamil-speaking Muslim, or that he would engage in any future activities that would bring him to the adverse attention of the Sri Lankan authorities.
… the Tribunal does not accept that the applicant has suffered any Convention-related harm or that there is a real chance of such harm occurring to him in the reasonably foreseeable future.
There is no Convention related reason as to why this applicant cannot return to Sri Lanka … the Tribunal has considered his case very carefully and has decided that Australia does not owe him a protection.
… the Tribunal is not satisfied that the applicant had suffered any Convention-related harm, nor is the Tribunal satisfied that there is a real chance of such harm occurring to the applicant in the reasonably foreseeable future.
Therefore, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention-related reason.
The proceedings before this Court
The applicant filed the application in this Court on 9 April 2008 setting out 2 grounds of review of the Tribunal’s decision. The applicant filed an amended application in Court on 23 June 2008 setting out 2 grounds of review.
The applicant appeared in person at the hearing before the Court on
23 June 2008with the assistance of a Tamil interpreter. Mr Reilly of counsel appeared for the first respondent.
The applicant was invited to say anything he wished to in support of the grounds and amended grounds of application, and generally, after each ground was translated for him. Both parties filed written submissions in this matter.
Grounds of application
Ground 1 of the application
Ground 1 of the application states that:
The Refugee Review Tribunal erred in law with that error being a jurisdictional error as the Tribunal failed to understand and apply the well-founded fear test in the Applicant’s case.
The applicant has not provided any particulars as to how he says the Tribunal failed to understand and apply the well founded fear test.
I accept the submission by the first respondent that in the absence of particulars, this ground is meaningless.
In any event, I do not detect any error of law in this regard based on a fair reading of the Tribunal decision.
Accordingly, Ground 1 of the application must fail.
Ground 2 of the application
Ground 2 of the application states that:
The Refugee Review Tribunal failed to raise issues that were relevant to the case of the Applicant.
Again, without particulars it is difficult to discern what issues the Tribunal is said to have failed to raise that are alleged to be relevant to the applicant’s case. The applicant has also not provided the Court with the transcript of the Tribunal hearing which might have assisted in this matter.
In any event, I am satisfied that the Tribunal complied with its statutory obligations under s.425(1) of the Act by identifying to the applicant the determinative issues in this case, and giving him the opportunity to give evidence and make submissions thereon in accordance with the principles in SZBEL v Minister for Immigration and Multicultural Affairs [2006] HCA 63 at [33]–[48], (and see also amended ground 2 below). The procedure adopted by the Tribunal clearly confirms that the applicant was given sufficient opportunity to present his case. Beyond this, as observed in SZBEL at [47]-[48], procedural fairness does not require the Tribunal to disclose its mental processes and subjective appraisals, including its disbelief of an applicant’s claims and his lack of credibility, in reaching its decision.
The procedural fairness requirements in Part 7 Division 4 deal in this regard only with the process of decision-making, not the merits of the decision. As relevantly stated in SZBEL at [25]:
what is required by procedural fairness is a fair hearing, not a fair outcome… It is, therefore, not to the point to ask whether the Tribunal's factual conclusions were right. The relevant question is about the Tribunal's processes, not its actual decision.
Merely because the applicant disagrees with the Tribunal’s adverse finding of credibility does not amount to an error of law. The Tribunal’s finding in this regard is a finding of fact par excellence and not open to review by this Court: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). It is not the function of this Court to engage in impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]). Moreover, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137].
I further accept the submission by the first respondent that:
… given that the Applicant had been rejected by the Tribunal on three previous occasions this was clearly a case where everything he said was in issue: SZBEL at [47]. Moreover SZBEL does not require the Tribunal to identify the significance of its questions: MIAC v Applicant A125 of 2003 (2007) 163 FCR 285 (FC) at [88-89], or give a running commentary on the Applicant’s evidence: SZBEL at [4].
Accordingly, I detect no breach of s.425(1) of the Act in this case. I am satisfied that the applicant was accorded procedural fairness by the Tribunal in compliance with the principles set out in SZBEL.
Overall, I consider that a fair reading of the Tribunal decision makes it clear that the Tribunal understood the nature of, and set out a detailed and closely reasoned analysis of, the applicant's claims; explored those claims with him at both the hearing and adjourned hearing; identified the determinative issues and gave him sufficient opportunity to give evidence and make submissions on those issues at the hearing and adjourned hearing; and closely noted the applicant's responses. The Tribunal further had regard to independent country evidence, including that provided by the applicant; and then made findings based on all the evidence and material before it.
I consider that its findings of fact, in particular as to the applicant’s adverse credibility, were open to it on the evidence and material before it; that it provided well-articulated and detailed reasons for rejecting the applicant’s claims; that it applied the correct law to those findings; and reached its conclusion that the applicant was not a person to whom Australia has protection obligations, based on those findings. In these circumstances, I am satisfied that the Tribunal complied with the statutory regime in the making of its decision and performed the task required of it in accordance with law.
Accordingly, Ground 2 of the application is not made out.
Grounds of amended application
Ground 1 of the amended application
Ground 1 of the amended application states that:
The Second Respondent (the Tribunal) denied the applicant procedural fairness.
Particulars:
a. The Tribunal found that it was ‘of the view that it is odd that his uncle would provide in depth details in 2006 about a conversation he has had with the OIC in October 1999.’ (CB at 402) but failed to consider the explanation for this which was provided by the applicant’s advisor (CB at 204) and as set out in the applicant’s Statutory Declaration sworn on 30 January 2008 in paragraphs 7,8 and 9 (CB at 209).
The applicant, in his written submissions, also argued that:
if the tribunal had considered the explanation provided it would have changed its mind and believed the applicant's evidence.
At the earlier Tribunal hearing on 17 July 2006, the applicant provided a letter from his maternal uncle, dated 11 July 2006, which sought to corroborate the applicant’s alleged arrest in October 1999 and which provided a detailed account of a conversation the uncle had with the Officer in Charge of Police at that time (OIC) (CB 385-386).
The question raised under this ground is whether the Tribunal properly considered the explanation given by the applicant in his statutory declaration of 30 January 2008, and the explanation provided in the submission by the applicant's adviser of 4 February 2008, regarding the concerns raised in the earlier 2006 Tribunal decision concerning the uncle's ability, in 2006, to recall the details of a conversation he had with the OIC back in 1999.
As stated earlier, the applicant has not provided a transcript of the Tribunal hearing.
The Tribunal set out (at CB 387), the applicant’s claims in his statutory declaration of 30 January 2008, (being prior to the Tribunal hearing of 7 and 15 February 2008) in regard to the letter from his uncle, as follows:
·At his last Tribunal hearing [in 2006], he provided two letters, from his uncle and mother. In the Decision the Tribunal said that it did not believe that his uncle could remember with such accuracy everything the police had said to him when he came to the police station where the applicant was jailed. The applicant does not know how his uncle wrote those things as he was in Australia, but when the applicant was arrested and jailed, it was a big issue for his family; everyone was worried about him. “I know that after all the things he did to try to get me released he told the story many times to our family and friends. I think that maybe he wrote the letter the same way he would tell the story to our friends and family”.
·The applicant asked the uncle to write what had happened to him like a dialogue. The applicant’s lawyer at that time was Mr Goldsmith. He advised the applicant that if he could get any evidence from his family in Sri Lanka, it would be best if it was written like a dialogue. When he asked his uncle if he could write a letter explaining what had happened when he was arrested in 1999, he asked him to do his letter this way; “I did not tell him what to write, only that it should be like a dialogue so it could be like the way Mr Goldsmith told me”.
The applicant’s statutory declaration also makes clear that the applicant was aware, even before the Tribunal hearing, that one of the determinative issues in this case was the veracity of the content of the letter from the uncle.
The Tribunal also summarised (at CB 389) the written submissions by the applicant's adviser of 4 February 2008 regarding the content of the uncle’s letter, as follows:
The significance of the letter from the uncle is the substance of the statement. The letter confirms the claimed arrests and detention; the statement should be accepted as setting out what happened, “while acknowledging that he could not have remembered thee conversations he had verbatim. The substance of the statement should not be dismissed simply because of a perception that his uncle could not have recounted the conversations he had word-for-word.”
At the hearing on 15 February 2008, the Tribunal raised directly with the applicant the issue of the content of the uncle's letter, and gave him an opportunity to reply to the following concerns of the Tribunal:
The Tribunal asked the applicant if he had ever asked his uncle for any documents in support and the applicant stated that he asked his uncle to provide a document in “dialect”. The Tribunal referred to a statement provided by his uncle… essentially referring to the applicant’s arrest in October 1999 and providing a detailed account of an alleged conversation that the uncle had had with the OIC. The Tribunal indicated to the applicant that it was aware that there had been concerns about the fact that the statement is very detailed and recounts in minor details a conversation that the uncle had had with the OIC. The Tribunal indicated that it was odd indeed that his uncle would provide in depth details in 2006 about a conversation he has had with the OIC in October 1999. The applicant stated that the things that had happened to him are big issues for the family and as such the uncle had remembered every word. The Tribunal indicated that it would further consider the weight that it would place on that document (CB 393).
In its Findings and Reasons, the Tribunal made the following findings regarding the contents of the uncle's letter:
The Tribunal referred to the statement provided by his uncle located at Folios 25 – 29 of RRT File No. 0603955157, essentially referring to the applicant’s arrest in October 1999 and providing a detailed account of an alleged conversation that the uncle had had with the OIC. The Tribunal is of the view that it is odd that his uncle would provide in depth details in 2006 about a conversation he has had with the OIC in October 1999. The applicant stated that the things that had happened to him are big issues for the family and as such the uncle had remembered every word. The Tribunal is not persuaded. Given those concerns, the credibility issues and in consideration of the evidence as a whole, the Tribunal has decided not to place weight on that document (CB 402).
Taking these matters into account, I am satisfied that the Tribunal properly identified and considered the explanation given by the applicant in his statutory declaration of 30 January 2008, and the explanation provided in the submission by the applicant's adviser of 4 February 2008 regarding the uncle's alleged ability to recall, in 2006, the details of a conversation he had with the OIC back in 1999, as set out in the uncle's letter.
I am satisfied that it was open to the Tribunal to reach the conclusion that it did in this regard on all the evidence before it and to place no weight on the contents of the uncle’s letter. As relevantly observed in Lee v Minister for Immigration & Multicultural affairs & Indigenous Affairs [2005] FCA 464 at [27]:
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.
The applicant is in effect seeking that the Court engage in impermissible merits review. I accept the submission by the first respondent in this regard that:
[The Tribunal] can hardly be said not to have taken the [explanation] into account, as opposed to not accepting it (transcript, p 8).
Accordingly, for the reasons stated above, Ground 1 of the amended application is rejected.
Ground 2 of the amended application
Ground 2 of the amended application states that:
The Tribunal failed to comply with s.425 of the Migration Act 1958 (being the previous legislation).
Particulars:
Failure to consider the matters set out in particular a of ground 1 above.
Section 425 of the Act requires the Tribunal to invite an applicant to appear before it to give evidence and present arguments “relating to the issues arising in relation to the decision under review.”
As indicated under amended ground 1 above, the applicant’s statutory declaration of 30 January 2008 makes it clear that he was aware that one of the determinative issues in this case was the veracity of the contents of his uncle’s letter.
Further, as indicated above, the Tribunal, at the hearing on 15 February 2008, raised directly with the applicant the issue of the contents of his uncle's letter in compliance with its statutory obligations under s.425(1) of the Act. As relevantly observed by the High Court in SZBEL at [47]:
But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
I consider that a fair reading of the Tribunal decision demonstrates that the Tribunal identified to the applicant its concerns regarding the contents of his uncle's letter, gave him an opportunity to respond and explain why the contents of that letter should be accepted, and indicated to the applicant that it would further consider the weight that it would attribute to the contents of that letter. I thus accept the submission by the first respondent that:
the issue [of the contents of the uncle's letter] was specifically addressed during the hearing and therefore there cannot possibly be a breach of Section 425 on that issue (transcript, p 9).
Accordingly, Ground 2 of the amended application is rejected.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application and the amended application before this Court are dismissed.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 30 June 2008
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