SZAQH v Minister for Immigration
[2004] FMCA 408
•25 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAQH v MINISTER FOR IMMIGRATION | [2004] FMCA 408 |
| MIGRATION – Review of RRT decision – Where applicant claims a well-founded fear of persecution for Convention reason of political opinion – where the written application for protection did not include certain claims later mentioned at Tribunal hearing – where Tribunal unequivocal in its finding that the applicant was not a reliable witness – where applicant told tribunal his agent had advised him to be brief in his application – whether the Tribunal disbelieved this explanation or simply did not find it to be a reasonable excuse – whether Tribunal obligated to consider the ‘What if I am wrong?’ test even if certain of its decision – whether because the Tribunal did not make a finding that original claims were fabricated it failed to complete the task assigned to it – whether certain findings of the Tribunal unsupported by probative material or logical grounds – whether the Tribunal misled the applicant into believing it was satisfied as to his involvement in political activities. |
SRFB v MIMIA [2004] FCAFC 268
MIMA v Rajalingham (1999) 93 FCR 220
Australia Broadcasting Tribunal v Bond (1990) 170 CLR 321
R v Criminal Injuries Compensation Board Ex parte A (1999) 2 AC 30
Re MIMIA; Ex parte Applicants S134/2002 (2003) 77 ALJR 437
Re RRT; Ex parte Aala (2000) 204 CLR 82
Re MIMA; Ex parteDurairajasingham (2000) 168 ALR 407
Htun v MIMA [2001] FCA 1802
MIMA v Yusuf (2001) 180 ALR 1
Craig v SA (1995) 184 CLR 163 at 179
Abebe v Commonwealth (1999) 197 CLR 510
Re MIMA Ex parte Applicant S20/2002 (2003) 198 ALR 59
Kioa v West (1985) 159 CLR 550
Meadows & Anor v MIMA (1998) 90 FCR 370
NAAK of 2002 v MIMIA [2004] FCA 113
WAJY v MIMIA [2004] FCA 355
WACO v MIMIA [2003] FCAFC 171
Applicant A27 of 2002 v MIMIA [2004] FCA 355
Ex parte Applicant S154/2002 (2003) 201 ALR 437
Stead v State Government Insurance Commission (1986) 161 CLR 141
Re RRT; Ex parte Aala (2000) 204 CLR 82
NAAF v MIMIA [2003] FCAFC 52
| Applicant: | SZAQH |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 874 of 2003 |
| Delivered on: | 25 June 2004 |
| Delivered at: | Sydney |
| Hearing date: | 11 June 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Brett Slater Solicitors |
| Counsel for the Respondent: | Mr J A C Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Court declares that the decision of the Refugee Review Tribunal made on 3 April 2003 and handed down on 24 April 2003 is void and of no effect.
The application is referred back to the Tribunal for consideration and determination according to law.
Respondent to pay the applicant’s costs assessed in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ874 of 2003
| SZAQH |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Ukraine. He arrived in Australia on
16 May 2000. On 13 June 2000 he lodged an application for a protection (class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 23 June 2000 a delegate of the Minister refused to grant a protection visa and on 19 July 2000 the applicant applied for review of that decision. The Tribunal arranged a hearing of the applicant’s claim before it on 14 October 2002. On
3 April 2003 the Tribunal determined to affirm the decision not to grant a protection visa. It handed down that decision on 24 April 2003.
The applicant’s claim to have a well-founded fear of persecution for the convention reason of political opinion arises out of his opposition to the Kuchma Government in Ukraine. He claimed to have formed a group known as “The Ukrainian Union for the Rescue of Society” for whom he wrote a number of articles against the Kuchma administration, had them printed and disseminated by being placed on almost every pole in Ternopil. He also organised a meeting before the presidential election of November/December 1999. He claimed to have been detained, beaten by the police and men from the SBU before being released with a warning to stop his activities. He did not do so and during the second round of the elections he was even more active and was beaten up on election day. The applicant complained of further actions on the part of the police and SBU including a three day detention period and a period confined in a psychiatric hospital with a threat on his release that if he did not stop his activities he would be detained there for life. Although the applicant promised he would stop his activities he did not do so. On receipt of a warning from a friend who worked in the police station he left Ternopil and moved to Kiev where he was able to hide before coming to Australia to attend an exhibition.
At the hearing before a Tribunal the applicant expanded on his original statement giving more details of his political activity in respect of which the Tribunal commented at [CB 80]:
“The Tribunal put to the applicant that he had not informed the department at all about these incidents. He stated that he had not told the department as his agent told him that he does not need to go into details.”
The applicant also spoke about his detention in the psychiatric institution, which he said was between the first and second round of elections. The Tribunal stated at [CB 81]:
“The Tribunal put to him that he had told the department the incident in relation to the psychiatric hospital had occurred after the election of Kuchma. He responded that in his original applications stating that this occurred after the election is just a typing mistake, as there was no point after Kuchma was elected.”
The applicant told the Tribunal that he had a collection of antique motorcycles stolen and that the police refused to investigate. The Tribunal commenced its findings and reasons at [CB 82]. At [CB 83] it stated:
“Except for the theft of his antique motor bikes, I am not satisfied that any of the applicant’s claims are plausible. The applicant’s purpose for a visit to Australia as stated in his business visa application was to attend the Techno Furniture Exhibition at Darling Harbour. Documents attesting to the genuineness of the visit and the bona fides of his company were provided to the department. He agreed that he came to attend an exhibition stating his director had sent him. I reject his explanation that it was also an opportunity to flee. “It was killing two birds with one stone.” The independent evidence does not support his claims as discussed below. I am satisfied that the applicant came to Australia to attend an exhibition and did not flee the Ukraine for fear of persecution.”
The Tribunal reinforced the views it expressed in the extracts cited above in the three following paragraphs found at [CB 84]:
“The applicant initially claimed to the Department in his protection visa application that he was placed in a psychiatric hospital by the SBU after the Kuchma election, yet at hearing stated that this incident had occurred before the second round of the election. When this inconsistency was put to the applicant he stated that this was a typing error. When it was put to the applicant that the claimed events such as travelling around in a mini bus with an amplifier, being attacked by a group of people in his mini bus and the militia refusing to assist him was not information placed before the Department. He explained that his adviser told him he did not need to go into details. I reject this explanation. I am of the view that it is implausible that a refugee claimant would omit explaining fully the reason for his flight at the first available opportunity. Such a course of action might well have resulted in a favourable outcome rather than incurring cost and delay appealing to the Tribunal. Furthermore, the applicant’s adviser is a registered migration agent. I am of the view that the applicant, after reading the delegate’s decision fabricated these new claims in order to enhance his claim to refugee status.
Therefore I am satisfied that the applicant did not form his own political group or wrote about his political views in either pamphlets or posters or articles. I am also not satisfied that he travelled around publicly expressing his views or that he attended any opposition meetings. It follows that I am not satisfied he was detained, harassed, assaulted or arrested by the police or the SBU for his political views or that he was taken away for psychiatric assessment. I am also satisfied that he did not contact the media. I am not satisfied he had any political views. I am satisfied nothing happened to him in the Ukraine. I am satisfied he did not flee the Ukraine in fear of persecution after hiding in another town, but left in order to attend a furniture exhibition.
As the applicant had no political profile I am not satisfied his bikes were stolen for a Convention reason. I am satisfied the applicant fabricated his claims in order to enhance his claim to refugee status.”
Finally the Tribunal came to these conclusions:
“ I have considered whether the applicant has a real chance of being harmed if he returns to the Ukraine. As I have found the applicant has not been harassed or harmed for a Convention reason in the Ukraine, I am therefore not satisfied that the applicant has a well-founded fear of Convention-based persecution on his return to the Ukraine.
I do not accept that there has been any serious mistreatment or any concerted or systematic harassment of the applicant for reason of his membership of an unregistered political party of 30 persons nor for his involvement in its activities. I am satisfied that the chance that harm, let alone harm amounting to persecution, will befall the applicant in the reasonably foreseeable future for reasons relating to his political affiliations is remote.”
When the matter came on for hearing before me the applicant was represented. A further amended application was filed and evidence in the form of an affidavit of Ms J Jones annexing a transcript of the proceedings before the Tribunal was admitted as well as an affidavit of the applicant dated 7 June 2004. The applicant was cross-examined. The applicant in oral examination deposed to the fact that his migration agent told him that he only had to put in the most important information in the forms accompanying his application and to be brief. He was told that if he was asked questions he could then reply in detail. He also stated that whilst the Tribunal expressed concern that he had not been exact about the time when he had been taken to Kiev the Tribunal did not ever tell him that it did not believe his explanation. The applicant confirmed that the migration agent was in the room when this conversation occurred and stated that if the Tribunal had raised a question about the instructions given to him by the migration agent the agent could have answered them and he would have called the agent to provide those answers. Under cross-examination the applicant complained that he believed the Tribunal was biased against him and that the tribunal member had already formed an opinion about him, that she interrupted him and stopped him and told him that she wasn’t interested in his evidence. He said that she only wanted to know what had happened to him.
In his helpful written submissions Mr Zipser who appeared for the applicant identified four issues upon which he then expanded to indicate how the Tribunal fell into jurisdictional error. These issues are as follows:
1.Whether the Tribunal erred in dealing with the variations between the applicant’s claims stated in his protection visa application and his claims stated to the Tribunal, giving rise to jurisdictional error; (“the Varied Claims issue”)
2. Whether the Tribunal, in dismissing the applicant’s original claims set out in his protection visa application, fell into jurisdictional error; (“the Original Claims issue”)
3. Whether the Tribunal, having told the applicant that it was “not particularly interested in [the applicant’s] political party and ideology”, ignored relevant material and dissuaded the applicant from giving relevant evidence, giving rise to jurisdictional error. (“the Political Party issue”)
4. Whether the Tribunal, in dealing with the issue of the applicant’s business visa, contravened s.424A Migration Act 1958, giving rise to jurisdictional error. (“the s.424A issue”)
The varied claims issue
This issue centres around the Tribunal’s rejection of the applicant’s statement that “his adviser told him he did not need to go into details” and the finding that any claims not contained in the applicant’s original protection visa application were fabricated. Mr Zipser argues that if the Tribunal had a concern about the truth of the statement concerning the adviser it was something which should have been put to the applicant. I am of the view that this submission proceeds from an incorrect reading of the Tribunal’s decision. At [CB 84.1] the Tribunal refers to the claims and the inconsistency and states:
“When it was put to the applicant that [certain claims] was not information placed before the department. He explained that his adviser told him that he did not need to go into details. I reject this explanation.”
Mr Zipser has proceeded on the basis that these words meant that the Tribunal did not believe that the adviser had given that advice. This leads him to the unfairness claim because the adviser was at all times in the room and could have been asked. But I think that what the Tribunal meant by this phrase was that whilst it might have accepted that the advice was given it did not think that it was a sufficient explanation for the failure by the applicant to provide that additional information. The Tribunal was of the view that any applicant to whom the stated events had occurred would have pointed them out whatever his adviser might have said. Indeed, the inquisitorial function of the Tribunal means that the Tribunal is not obligated to accept explanations by applicant’s for any inconsistencies in their claim for protection. As Mansfield J said in SRFB v MIMIA [2004] FCAFC 268 at [48]:
“It was a matter for the Tribunal to determine what weight it gave to that inconsistency in the light of the explanation which was proffered, and whether it accepted the explanation. Its failure to accept the explanation demonstrates neither jurisdictional error on its part, not an error of law. It is for the Tribunal to determine the merits of the claim. Indeed, it is not clearly demonstrated that the Tribunal’s refusal to accept the explanation was itself a wrong finding of fact: see A-G (NSW) v Quin (1990) 170 CLR 1 at 35-36.”
The applicant also complains that the statement “it is implausible that a refugee claimant would omit explaining fully the reason for his flight at the first available opportunity” is manifestly unreasonable and then proceeds to provide the court with six examples of reasons why the omission might have taken place. He then argues that the Tribunal should have speculated as to the possibility that the applicant’s explanation was true. He cites as authority for what is in effect the “What if I am wrong?” test: MIMA v Rajalingham (1999) 93 FCR 220 at [63] and [66]. The “What if I am wrong?” test is only required to be adopted by a Tribunal which has some doubt as to a matter, not to a Tribunal that is firm in its views. Even if I am wrong about the proper reading of the Tribunal’s decision in regard to this aspect of the matter, it could not be said that the Tribunal has expressed any doubt. Therefore the application of the “What if I am wrong?” test is irrelevant.
The applicant then argues that the statement contains an inference of fact that was not supported by some probative material or logical grounds, that there was a material error of fact and that the Tribunal had not exercised its power reasonably. Citing as authority Australia Broadcasting Tribunal v Bond (1990) 170 CLR 321; R v Criminal Injuries Compensation Board Ex parte A (1999) 2 AC 30; Re MIMIA Ex parte Applicants S134/2002 (2003) 77 ALJR 437 at [35] and ReRRT; Ex parte Aala (2000) 204 CLR 82 at [40]. In my view the statement is a finding of fact in relation to credibility which had a basis in the evidence given. To utilise the words of McHugh J in Re MIMA; Ex parteDurairajasingham (2000) 168 ALR 407 at [67] “a finding on credibility … is the function of the primary decision-maker par excellence.” Many other Tribunals may have come to a different conclusion. Many persons of reason and compassion looking into the process from outside may feel that the finding erred on the side of harshness. But that does not make it a finding in error, let alone a finding in jurisdictional error. The Courts are constantly faced with decisions of the Tribunal with which they would personally not agree but it is the strength of our system of judicial review that the Courts apply law and not emotions to these situations.
Original claims issue
The applicant set out a number of claims in his protection visa application which is found at [CB 25] – [CB 26]. At the hearing before the Tribunal on 18 October 2002 he repeated those claims and made certain new claims. The iteration of his claims is found at [CB 80] The new claims which he made are that:
a)In April or May 1999 he went to meetings organised by a variety of opposition parties. On one occasion he was grabbed by the hair from the microphone [CB 80]
b)On an occasion when he was travelling in a bus with amplifiers a group of strangers attacked the bus and all the glass was broken. He complained about the incident to the militia. They laughed and called him an idiot. [CB 80]
The Tribunal analysed these claims at [CB 84] where after the recitation of its views concerning the information from the adviser it says:
“I am of the view that the applicant, after reading the delegate’s decision fabricated these new claims in order to enhance his claim to refugee status. Therefore I am satisfied that the applicant did not form his own political group or wrote about his political views in either pamphlets or posters or articles.
I am also not satisfied that he travelled around publicly expressing his views or that he attended any opposition meetings. It follows I am not satisfied that he was detained, harassed, assaulted or arrested by the police or the SBU for his political views or that he was taken away for psychiatric assessment.”I accept Mr Zipser’s submission that these reasons for decision indicate that while the Tribunal made a finding (and gave reasons for the finding) that the applicant fabricated the new claims the Tribunal did not make a finding that the applicant fabricated the original claims in his protection visa application or provide reasons. Therefore the Tribunal has overlooked this very important aspect of the matter and has failed to complete the task upon which it embarked: Htun v MIMA [2001] FCA 1802 at [42] per Allsop J. This is of course a jurisdictional error: MIMA v Yusuf (2001) 180 ALR 1at [82] – [83]; Craig v SA (1995) 184 CLR 163 at 179; Abebe v Commonwealth (1999) 197 CLR 510 at [59]. Mr Zipser also argues that the finding is a finding of fact upon which a decision is based and which is unsupported by probative material; ABT v Bond (1991) 70 CLR 321 at 367. He would also consider it a statement where the conclusion does not follow the premise as a matter of rational deduction involving serious illogicality of reasoning: Re MIMA Ex parte Applicant S20/2002 (2003) 198 ALR 59 per Kirby J at [109]. If I am wrong in my finding that the Tribunal did not complete its task because it is said that the Tribunal did come to a conclusion about the original claims, namely that they were fabricated, then I would accept Mr Zipser’s argument that such a finding was based upon a manifest illogicality and that the conclusion did not follow the premise as a matter of rational deduction.
The political party issue
The applicant claimed to have a well-founded fear of persecution for the Convention reason of political opinion. He sought to establish the connection with political opinion by giving evidence of the formation of a political party. The transcript reveals that discussion about the political party commenced at T-3 after he had been asked what the reason was that made him flee the Ukraine leaving his wife and daughter behind. The applicant says
Applicant : I was wanted by many people before I started to get involved in political activities but it is dangerous and whether you belong to the opposition party or the party of power whenever you get involved and whenever you express criticism or disapproval of the existing government you would get into trouble and you would have problems because all political activity was very strictly controlled.
Tribunal: Sir you have tell me what happened to you. You haven’t told me what happened to you. What happened? You understand some English I notice.
The applicant then continues and there is a discussion about his small political party on T-4. On T-5
Applicant: So we started with making a declaration of the Ukrainian Union of Saving the Society and I personally believe that it is necessary to save the society in the Ukraine because the whole society has been contaminated and people stop seeing the difference between good and evil.
Tribunal: But what happened to you?
The applicant continues to talk about his political party and what it did. On T-6 the following exchange takes place:
Tribunal: So you attended these meetings and then there was Kuchma’s election, is that right? And then Kuchma won the election.
Applicant: I haven’t finished my story. So we started taking part in the other party’s meetings and later on we started to organise our own meetings.
Tribunal: I know sir, because remember, don’t forget you have written and told the Department what happened and I have already read your story. So I am trying to ask you questions to focus on certain parts of your story that I have difficulty with.
The transcript continues with a discussion about the Kuchma election process when at T-7 the Tribunal says:
Tribunal: Ok did anything happen to you between the first round and the second round?
Applicant: Yes, Kuchma and … and I had a problem because I had a very poor knowledge of electoral law. Ok, when I say poor knowledge of law … we were supporting Marchuk in the first round so in the second round we have nobody to support.
Tribunal: I am not particularly interested in your political party and ideology. I am more interested in what happened to you and I would like you to tell me if anything happened to you between the first and the second round. You see, sir, I understand that you are part of an opposition party and I understand that in the Ukraine there are many opposition parties and I can give you I can tell you all the names of them and I do understand what they stand for. What I would like to know sir is what happened to you personally.
These discussions must be put in the context of the Tribunal’s finding at [CB 84] :
“Therefore I am satisfied that the applicant did not form his own political group or wrote about his political views in either pamphlets or posters or articles. I am also not satisfied that he travelled around publicly expressing his views or that he attended any opposition meetings.”
The applicant argues that the excerpts that I have set out from the transcript would have indicated to any reasonable applicant in his position that the Tribunal did not have any concerns about the veracity of his claims concerning the political party. The Tribunal never put to the applicant that it did not believe those claims although it made it quite clear that it did not necessarily accept their sequelae, the mistreatment.
It hardly needs to be said that given the potentially serious and irrevocable consequences of a decision relating to the granting of a protection visa the Courts have insisted that the RRT act fairly when making decisions. Central to this is the duty of Tribunal to afford applicants an opportunity to address the Tribunal on critical matters on which their case may turn: Kioa v West (1985) 159 CLR 550 at 587; Meadows & Anor v MIMA (1998) 90 FCR 370 at 383 per von Doussa J and 387 per Merkel J; NAAK of 2002 v MIMIA [2004] FCA 113 at [30]-[34]; WAJY v MIMIA [2004] FCA 355 at [36]-[37]. As the Full Court stated in WACO v MIMIA [2003] FCAFC 171 at [33]:
“The Tribunal is under a duty to raise [with an applicant] plainly and unambiguously the critical issues on which his or her application might depend so that he or she may have an opportunity of being heard on them.”
This sentiment was echoed by Lander J in Applicant A27 of 2002 v MIMIA [2004] FCA 355 where his Honour gave consideration to the duty of the Tribunal to alert an applicant of critical matters. His Honour said at [58]:
“Because of the nature of the proceeding, it must put the applicant on notice of the critical issues which are raised on the application. That is necessary because there is no contradictor and no contradictory oral evidence. That does not mean that the Tribunal is bound to put everything to an applicant in the same manner as a party might in an adversarial proceeding: Abebe v Commonwealth of Australia (1999) 197 CLR 510 per Callinan J at [295]. Where it is clear that facts are in dispute and the applicant has addressed those facts, the RRT does not need to warn or advise the applicant that the RRT may make an adverse finding on those facts. However, where the applicant may not be aware that the RRT might make an adverse finding critical to the applicant’s case and therefore might not address the finding by way of evidence or submissions, it usually would be appropriate for the RRT to advise the applicant of the possibility of such a finding.”
I am of the view that in telling the applicant that it was not interested in his political party and ideology [T-7] the Tribunal misled the applicant into believing that the Tribunal accepted his evidence about his political activities. Given that the applicant’s claim for protection rested solely on events arising out of his purported political activity this was a matter which ought to have been squarely put to the applicant. The Tribunal’s concerns related to the applicant directly and were matters on which the applicant could have given further explanation had he been given the opportunity. As Lander J opined in Applicant A27 at [66]:
“The duty [on the tribunal] is to act fairly. Fairness dictates that the applicant have the chance of persuading the decision-maker to a finding before any finding is made.”
Instead, the Tribunal used language which a reasonable person in the applicant’s position would construe as an acceptance of at least part of the claims put forward in support of his application for protection and in so doing failed to accord the applicant procedural fairness.
In addition to the aforementioned authority, I note the obiter comment of Gummow and Heydon JJ in Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [31] where their Honours opined that a finding of a denial of procedural fairness is open in circumstances where the Tribunal has expressly indicated to an applicant that it is unnecessary for them to further expand on a claim, providing that such a statement occurs in isolation and is not later subject to further comment and discussion. This is so in the present case.
For the reasons given above I am satisfied that the Tribunal when coming to its conclusions in this case fell into jurisdictional error. I do not believe that it could be said that the failure of the Tribunal to observe principles of procedural fairness did not deny the applicant the opportunity of a successful outcome: Stead v State Government Insurance Commission (1986) 161 CLR 141; Re RRT; Ex parte Aala (2000) 204 CLR 82; NAAF v MIMIA [2003] FCAFC 52. I must therefore declare that the finding of the Tribunal to be invalid and of no effect. The respondent must pay the applicant’s costs which I assess in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 25 June 2004
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