SZAOO v Minister for Immigration - [2004] FMCA 245

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAOO v MINISTER FOR IMMIGRATION

[2004] FMCA 245

MIGRATION – Review of RRT decision – where applicant submitted documents to the Tribunal – where Tribunal suspected documents not genuine – where this finding had adverse impact on credibility of applicant – where Tribunal sent documents to DIMIA for document inspection – where despite taking this step, Tribunal reached its decision before receiving report – where report corroborated Tribunal’s concerns about documents – where applicant argued that Tribunal reached conclusions about documents based on understanding of production of computer generated documents in Australia and ignored fact that technology in applicant’s home country not as available or advanced – where applicant’s complaints essentially relate to findings of fact.

Federal Magistrates Court Rules 2001 Part 21 Rule 21.02(2)(a)

Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration (1998) 86 FCR 547
W148/OOA v Minister for Immigration [2001] 185 ALR 703
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth (1999) 197 CLR 510

Applicant:

SZAOO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 796 of 2003

Delivered on:

7 April 2004

Delivered at:

Sydney

Hearing date:

7 April 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 796 of 2003

SZAOO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in these proceedings is a citizen of Nigeria. He arrived in Australia on 7 October 2000. On 13 November 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 8 March 2001 a delegate of the Minister refused to grant a protection visa and on 16 March 2001 the applicant applied for review of that decision.
The Tribunal arranged for a hearing into the applicant's claims and this took place on 15 November 2002. At the hearing certain documentation was produced, some of which was the subject of analysis by the Department's document examination section. On 7 April 2003 the Tribunal determined to affirm the decision not to grant a protection visa and it handed down its decision on 29 April 2003.
The applicant now seeks review of the decision of the Tribunal. He filed an application with this court on 3 May 2003. The application stated in the section set aside for claims:
“ Information will be forwarded subject to legal advice ASAP.”
And in respect of the grounds of application, the following:

“Information will be forwarded subject to legal advice ASAP.”

No further particulars of the applicant’s claim have been received by the court or by the respondent notwithstanding that the applicant had the benefit of advice under the Minister's scheme and that orders were made at a hearing for directions before the Registrar that took place on 5 June 2003.
The applicant claimed to have a well-founded fear of persecution for the convention reasons of religion and political opinion. He lived in Benin City in Nigeria's southern Edo State. He had been an engineering student at the University of Benin up until June 2000. The applicant claimed that he was a prominent university student activist who had taken particular interest and was particularly concerned about proposals to introduce Sharia Law into Edo State. His opposition to this proposal brought him to the attention of a secret cult, in particular the secret cult known as the “Black Axe”, which he claimed operated in the University and in Benin.
At the hearing before the Tribunal the applicant also made claims relating to a meeting that had been arranged between himself and the State Governor, which he had made as President of his student group. The applicant had told the Tribunal that he had attended this meeting backed by a large crowd of students comprising between 500 and 2000 people. The applicant's involvement in this "courtesy call" was such as to arouse the ire of the Governor and those who supported him.
The applicant claimed that he was attacked on two occasions. The first attack was in June 2000 and the second was on or about 13 July 2000. There was some change in the applicant's story concerning the date of the second attack from 13 July to 15 July. He claimed that as a result of the later attack he was hospitalised.
There was considerable discussion between the Tribunal and the applicant concerning the passports which he held and which were used to enter this country. There was also a discussion concerning the manner in which the applicant left Nigeria through the airport and about the documentation which the applicant had provided in corroboration of his claims. This documentation included newspaper articles and letters from the University of Benin.
Some of the documentation was sent to the Department's document examining section but had not been the subject of any finding at the time the Tribunal commenced writing its decision. It would seem that the Tribunal had made certain findings in relation to the documents without any assistance from that section based upon matters which it had put to the applicant. The document examination section finally reported to the Tribunal very shortly before the decision was handed down. The report of the section is inconclusive but it makes comments which the Tribunal finds corroborate its own concerns about the documents. It does not seem that the report from the Document Examination Unit was ever sent to the applicant for comment but I do not think it could be seen that the report constituted:
“ Information that the Tribunal considers would be the reason or part of the reason for affirming the decision that is under review [Section 424A(a) Migration Act].”
I am of the view that the Tribunal had made up its mind regarding these documents before receipt of the report, which really takes the matter no further than the Tribunal had taken it.
The Tribunal concluded that it was not satisfied that the applicant was a victim of an assault by secret cult members arising out of is opposition to Sharia Law or of any opposition to the State Governor and that therefore it was not satisfied that he had a well founded fear of persecution for a convention reason. These conclusions were based upon findings that it made as to the credibility of the applicant. The Tribunal pointed out inconsistencies within the documents such as the use of different typefaces in a single document, the inconsistency of medical certificates with injuries said to have been sustained by the applicant, several cases of misspellings or different spellings of the applicant's name and differences in appearance within the newspaper articles, as reasons why the applicant's claims lacked credibility. These matters were discussed with the applicant at the hearing.
The applicant appeared before me today in person. He reminded the court that Nigeria was a country in which the availability of computers was not as common as that in Australia. He suggested that it was wrong for the Tribunal to have made findings which may have been based upon a knowledge or understanding of the production of computer generated documents in Australia and impose those findings upon the situation which existed in Nigeria. He said that the Tribunal should have looked at the documents on the basis of the standards which applied in Nigeria and not on the basis of the standards which applied in Australia.
It is understandable that an applicant may be frustrated by the methods that a Tribunal uses to come to its decision. There is evidence in this case that the applicant understood that the production of documents may not be enough and so he obtained other corroborative documents, including a letter from the newspaper company confirming the veracity of a newspaper article. The Tribunal noted that that document itself might have been a forgery. The problem that the applicant has with making these points is that they really trespass upon the prime duty of the Tribunal, which is to find and determine the facts. Finding and determining the facts often involves considerations of matters of credibility and these type of findings are findings for the Tribunal par excellence: Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at (67). No error in the decision of a Tribunal is demonstrated so long as its conclusions are open to it: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at [558-559]; W148/OOA v Minister for Immigration [2001] 185 ALR 703 at [64] to [69]. The Tribunal's findings were open to it for the reasons which it gives and include the country information to which it refers and the responses which the applicant gave to the questions put to him.
This court cannot review the merits of the Tribunal's decision or argue with it on a question of fact: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [272]. Even if the Tribunal made a wrong finding of fact this is not an error of law, let alone a jurisdictional error: Abebe v Commonwealth (1999) 197 CLR 510 at [137]. The applicant has not suggested any other reason why the decision of the Tribunal should be set aside for having been made improperly and upon a jurisdictional error.
In those circumstances, I am unable to grant review and I must dismiss this application, which I do. I order that the applicant pay the respondent's costs which I assess in the sum of $4,500 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 27 April 2004