SZBGF v Minister for Immigration

[2005] FMCA 117

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBGF v MINISTER FOR IMMIGRATION [2005] FMCA 117

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal under obligation to obtain or advise applicant to obtain a medical report – no lack of procedural fairness.

Migration Act 1958

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264
Prasad v Minister for Immigration & Ethnic Affairs (1985) 65 ALR 549
Luu v Renevier (1989) 19 ALR 39
Kioa v West (1985) 159 CLR 550
Re Minister for Immigration & Multicultural Affairs; Ex parte, Durairajasingham (2001) 68 ALR 407
NAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 76
Abebe v Commonwealth (1999) 197 CLR 510
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558-559

Applicant: SZBGF

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1653 of 2003

Delivered on: 8 February 2005

Delivered at: Sydney

Hearing date: 8 February 2005

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr T. Reilly

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed.

2. That the applicant pay the respondent's costs set in the amount of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1653 of 2003

SZBGF

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 14 January 2003, affirming a decision of the delegate of the respondent not to grant the applicant a protection visa.  The applicant, who is a citizen of Syria, arrived in Australia on 13 October 1997 and applied for a protection visa on 27 February 1998.  The application was refused.  He sought review by the Tribunal.  The Tribunal held a hearing on 11 August 1999.  On 28 October 1999 it wrote to the applicant inviting him to comment on country information relevant to his claims.  He provided such comment.  On 15 June 2000 the Tribunal gave the applicant an opportunity to provide further submissions in support of his application given the time since the hearing.  The Tribunal also put to the applicant its view of the consequences of a change in circumstances in Syria (that being the recent death of President Assad).  It does not appear that any further submissions or arguments were made by the applicant after that date. 

2. The applicant claimed to fear persecution in Syria for reason of his political opinion.  He made detailed claims to have been arrested and severely tortured on a number of occasions after criticising the government at a Baath Party meeting in 1992.  In particular he claimed that he had been detained between March and December 1992.  In a statutory declaration made in connection with this application he gave details of claimed mistreatment during this time and thereafter.  He claimed to have left Syria with government permission in 1993 to go to Cyprus and that he was expelled back to Syria in 1996 and that he was again detained and mistreated for some months.  He claimed that he had been granted a visa for Thailand in 1996 but did not wish to use it and that he had come to Australia in 1997.

3. In support of his application the applicant provided various documents to the Department and the Tribunal including a report prepared by a psychologist dated 15 February 1999.  Also in the bundle of relevant documents is a six-page hand-written document which was provided to the Tribunal.  That document appears to take issue with the decision of the delegate of the respondent, commenting on the delegate's conclusions and providing explanations on particular issues. 

4. In its reasons for decision, the Tribunal found that the applicant was not credible and had concocted his claims to support his claim for a protection visa.  The Tribunal gave a number of reasons for this conclusion, addressing particular aspects of the applicant’s claims and evidence.  In relation to the applicant's claims concerning the Baath Party it found that as his claimed motivation for joining the party was because of the advantages it gave him over other people, this raised serious doubts about his claims that he then spoke out against the favouritism and discrimination that existed in the party and the regime. 

5. The Tribunal also referred to a number of inconsistencies between the applicant's written claims about the dates of certain events and the travel dates recorded in his passport.  Such matters had also been noted in the decision of the delegate.  The applicant claimed he went to Cyprus in April 1993.  His passport stamps showed he did not go there until November 1993.  The Tribunal found it implausible that he would have overlooked the time that he went to Cyprus, given his claim that he would never forget the day that he was released from gaol in December 2002.  Similarly he claimed he returned to Cyprus in January 1996 and was gaoled immediately.  His passport showed he did not return until July 1996.  The Tribunal found the dates the applicant left for Cyprus and returned were not important to him because there was no major incident such as imprisonment or release from prison to which to link them. 

6. The Tribunal also had regard to other implausibilities in the applicant's account, such as his claim that the Syrian government assisted his departure on two occasions and allowed him to keep a passport despite the fact that it had allegedly incarcerated and mistreated him and regarded him as being opposed to it.  It also had regard to his failure to leave the country for or through Thailand (despite his claims of severe torture and despite his claims to fear ongoing problems in Syria).  It also found inconsistencies between the applicant's claims and the independent evidence, in particular in relation to the requirement to vote in Syrian elections.  The applicant had claimed that there were serious consequences as a result of his not voting in Syrian elections while he was in Cyprus.  However the Tribunal preferred, for reasons which it gave, independent evidence from a range of sources about the absence of compulsory voting either in Syria or overseas in Syrian elections and, given media reports that only 50 per cent of people voted, did not accept that the applicant’s failure to vote would be of such concern that the authorities would target him. 

7. The Tribunal referred to a psychological report dated 15 February 1999.  It accepted the expertise of the psychologist and his analysis that the applicant suffered anxiety and depression.  However it did not accept that it was for the reasons given, noting that the psychologist had not examined the credibility of the applicant's account.  The Tribunal found that the applicant suffered the disorders that he had for reasons other than those claimed. 

8. In summary, the Tribunal found that the applicant had been able to hold a passport from 1991 to the time he left Syria.  He had been granted permission to exit the country on two occasions, had two places of work in Syria in his name and had been able to obtain visas to visit Cyprus, Thailand and Australia.  He had come to Australia using his own name and identity.  The Tribunal found his account of being gaoled in Syria to lack credibility, to be implausible and inconsistent with independent material before the Tribunal.  It rejected his claims to have come to the adverse concern of the Syrian authorities and to have suffered torture and persecution at their hands.  It found that the applicant had concocted an account for the sole purpose of supporting a claim for a protection visa and that he did not have a well-founded fear of persecution for a Convention reason. 

9. In these proceedings, the applicant relies on an amended application filed on 17 November 2003 which appears to raise three grounds, numbered 1, 2 and 1 (sic). The first two grounds are that the applicant was denied procedural fairness and that the Tribunal committed jurisdictional error of law by misinterpreting the definition of "persecution" in section 91R of the Migration Act 1958 and, as a result, asked itself the wrong question in purporting to determine whether Australia had protection obligations in respect of the applicant. The third ground is that the Tribunal finding as to the credibility of the applicant was not supported by any probative evidence and was so unreasonable that no reasonable Tribunal could have so found. There are particulars in the amended application addressed to the first of these grounds. From the particulars it is apparent that the applicant's claim is that he was denied procedural fairness in that the Tribunal did not advise him to obtain a medical report or otherwise address his willingness to provide such a report or have a medical check-up. In the handwritten document accompanying the response to hearing form the applicant stated:

   Because of my suffering I am so sick.  If you don't believe me I will go to a doctor for checkup.  My illnesses are as follows - nervous breakdowns, hysteria, memory loss, rheumatism by the cold in prison.  I visited a psychologist and an optomat (sic).  I am ready for any medical test.

10. He went on to claim that he still had scars on his body and was prepared to be examined ‘by your doctor’.  In the amended application it is claimed that the Tribunal proceeded, without notice to the applicant or advising him to obtain a medical report, to make a decision adverse to him based on its disbelief of his story.  It was contended that in this way the Tribunal denied the applicant the opportunity to present his case and be heard in relation to the Tribunal's concerns and in so doing denied him procedural fairness. 

11. However, on the material before me I am not satisfied that any lack of procedural fairness is established.  First, there is no transcript of the Tribunal hearing.  On the material before me no findings can be made about what the Tribunal did or did not advise the applicant to do in the course of the hearing.  This is not a case in which the court can infer what occurred in the hearing from the Tribunal reasons for decision: see NAOA v MIMIA [2004] FCAFC241 at [21] and compare the unusual circumstances considered in MIMIA v NAMW [2004] FCAFC 264 at [121] to [122].

12. More generally, it is for the applicant to make his claim for refugee status.  He had the assistance of a migration agent through the course of the Tribunal proceedings.  There was ample opportunity both before and after the Tribunal hearing for him to supplement his evidence in any way he wished.  This is reinforced not only by the time taken by the review, but also by the opportunity the Tribunal gave him after the hearing to make any further submissions or arguments.  There is nothing in the material before me to suggest that the applicant sought to provide any further medical evidence or that he was in any way hindered or discouraged from so doing by the Tribunal. 

13. The fact that the Tribunal did not respond in its reason for decision to his claims of willingness to undergo a medical test does not establish error in the manner contended.  The Tribunal in not obliged to make out the applicant's case for him if he does not take up the opportunity to do so himself.  It was not under an obligation to advise him to obtain a medical test.  Nor was it obliged to inform him that it would not be providing or obtaining a medical examination. 

14. This is not a case in which there was an obligation on the Tribunal to make further inquiries, either by way of obtaining a medical report or otherwise.  The circumstances in this case are not such as to bring the situation within the principles in Prasad v MIEA (1985) 65 ALR 549. It has not been established that to the knowledge of the decision maker there was readily available to him or her other factual matter likely to be of critical importance in relation to a central issue for determination which had not been obtained. Unlike the situation considered by the Full Court of the Federal Court in Luu v Renevier (1989) 19 ALR 39, there is nothing in the material before me to suggest that there was other material of a medical or similar nature in existence or available which the Tribunal had not obtained.

15. As to the applicant's claim that the Tribunal erred in not giving him notice of the manner in which it intended to proceed, as Mason J stated in Kioa v West (1985) 159 CLR 550 at 587, the applicant is entitled to support his application by such information and material as he thinks appropriate. He cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. No lack of procedural fairness is established in the manner contended.

16. Nor is the ground that the Tribunal misinterpreted the definition of persecution in section 91R of the Migration Act 1958 established. There is no particularisation of this claim. The applicant did not file written submissions, despite having been ordered to do so in the directions hearing. In oral submissions he took issue with the merits of the Tribunal decision. Merits review is not available in this court. His disagreement with the Tribunal findings of fact does not establish any jurisdictional error. It has not been established that the Tribunal misinterpreted the definition of persecution in the Migration Act.

17. Finally, the amended application contends that the Tribunal's findings as to the credibility of the applicant's claims was not supported by any probative evidence and was so unreasonable that no reasonable Tribunal could have so found.  There is no particularisation or elaboration of this claim, other than the applicant's disagreement with the Tribunal findings.  However it is apparent that the applicant was unsuccessful because of the view the Tribunal took of the facts, and in particular its finding that he was not credible and his claims concocted.  Such findings are matters of fact for the Tribunal, Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2001) 68 ALR 407 at [67] per McHugh J. So long as the Tribunal's credibility findings were open to it on the material before it, no error is demonstrated in such conclusions: Kopalapillai v MIMA (1998) 86 FCR 547 at 558-559. In this instance the findings were open to the Tribunal for the reasons that it gives, including the inconsistencies, implausibilities and country information to which it referred.

18. There was evidence which provided a basis for the Tribunal's findings in relation to the applicant's credibility.  This is not a case in which it has been established that the Tribunal decision was so unreasonable that no reasonable Tribunal could have so found.  See NAAP v MIMIA (2003) FCAFC 76 at [37] and [42]. The court cannot review the merits of the Tribunal and whatever the meaning is of unreasonableness as to jurisdiction it does not consist of a single erroneous finding of fact. (See NAAP and also see Abebe v Commonwealth (1999) 197 CLR 510 at [137]).

19. In oral submissions the applicant raised a number of issues.  However all of these took issue with the Tribunal's failure to believe his claims.    He restated that his claims were true.  As indicated, the Court cannot review the merits of the Tribunal's decision and these claims do not establish a jurisdictional error.  The applicant also reiterated that he was prepared to undergo a medical examination although he had not been able to afford the expense of a private doctor.  Again, this does not establish a jurisdictional error by the Tribunal.  Nor does the fact that the applicant had been willing to undergo a medical examination mean that the Tribunal was obliged to find that he was truthful in the manner that he contended.  As no jurisdictional error has been established the application must be dismissed. 

RECORDED    :    NOT TRANSCRIBED

1. The respondent filed a notice of objection to competency on 17 September 2003. As there is no jurisdictional error established in the Tribunal decision it follows that it is a privative clause decision within section 474 of the Migration Act, that the court lacks jurisdiction and that the notice of objection to competency should be upheld.

RECORDED    :    NOT TRANSCRIBED

1. The applicant has been unsuccessful and there is nothing in the material before me to warrant a departure from the general principle that an unsuccessful applicant should meet the costs of the respondent.  The respondent seeks costs in the sum of $5,000 on the basis that this matter is a little more involved than usual with a somewhat longer Tribunal decision and necessitating somewhat lengthier written submissions from counsel for the respondent albeit that they remain confined within two pages.  They do, however, address succinctly rather more issues than are sometimes raised in such matters.  I consider that in the circumstances of this case an appropriate amount for costs is the sum of $4,500. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  17 February 2005.