SZBPH v Minister for Immigration

[2005] FMCA 796

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBPH v MINISTER FOR IMMIGRATION [2005] FMCA 796

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in rejecting credibility of the applicant. 

Migration Act 1958, s.425

Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai vMinisterfor Immigration & Multicultural Affairs (1998) 86 FCR 547
W148/00Av Ministerfor Immigration & Multicultural Affairs (2001) 185 ALR 703
Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287
WAEE vMinister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94

Applicant: SZBPH

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 2091 of 2003

Judgment of: Barnes FM

Hearing date: 6 June 2005

Delivered at: Sydney

Delivered on: 6 June 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms S McNaughton

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application is dismissed. 

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2091 of 2003

SZBPH

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 11 September 2003, affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant, a citizen of Mongolia, arrived in Australia on 16 February 2002.  She sought a protection visa.  The application was refused.  She sought review by the Tribunal.  She attended a Tribunal hearing. 

2. The original claims made by the applicant are set out in her protection visa application.  Initially, she made general claims to fear persecution in the future by reason of her political opinion as a member of the opposition Mongolian Democratic Party (MDP) and as a critic of the Government. 

3. She claimed that she had been prevented by the Mongolian Peoples Revolutionary Party (the MPRP) from expressing her political views openly and that she would not be protected by the Mongolian authorities.  In a letter from her migration agent to the Department in response to an invitation to comment on material it was stated that she had not been subjected to persecution prior to the year 2000. 

4. The Tribunal noted that the applicant’s application for Tribunal review received on 7 June 2002 repeated her original claims to fear persecution for political opinion as a member of the MDP and added what it described as unsupported generalisations which were contrary to independent information.  The Tribunal reasons for decision recorded the difficulties the Tribunal had with these initial claims, including the absence of any evidence from the applicant of MDP membership or familiarity with the party, the fact that claims did not sit with independent evidence, were vague and unsupported and were also contrary to the evidence from the applicant's passport about her movements.    

5. Some time after the application for review by the Tribunal was lodged, the applicant made quite different detailed and specific claims about past activities and past repercussions including a claim that she had been convicted in a 1999 criminal case.  Most of these claims were made in a statement provided by her under cover of letter of 11 July 2003 from her new migration agent which was accompanied by a bundle of supporting documentation.  In this material the applicant claimed that she had experienced specific instances of past persecution over specific political activities including mistreatment, arrest, detention, trial and conviction.  The Tribunal described as ‘remarkable’ that her substantive claims had ‘mutated’ into a detailed history of specific activities she claimed to have undertaken and a highly specific account of past repercussions and punishment all orchestrated by the MPRP. 

6. The Tribunal went on to describe the evidence given by the applicant at the Tribunal hearing.  This account is the only evidence before the court of what occurred in the Tribunal hearing.  The Tribunal recorded in some detail the concern it had with the change and increase in detail in the applicant's claims.  It set out critical issues and concerns that it put to the applicant in the hearing, in particular its concerns relating to the fabrication of two newspapers provided by the applicant.  It also recorded that the applicant provided an explanation for an acknowledged fabrication of a 1998 newspaper being that her sister, who had sent her an edition of what was purportedly a September 1998 newspaper, had advised that she had been unable to find an actual copy of the September 1998 edition (that allegedly included an article by the applicant and her photograph) and had had the item made up instead to show the Tribunal how the article would have looked in newspaper form. 

7. The Tribunal found that this was a highly disingenuous explanation that had been withheld until the Tribunal started to present adverse observations to the applicant at the hearing.  The Tribunal found that two newspaper articles and the editions in which they were placed amounted to fabricated evidence.  The applicant herself had admitted this in the hearing.  However the Tribunal went on to consider whether they were merely falsified evidence of true facts. 

8. In that context, the Tribunal addressed difficulties that it had with the applicant’s claim to have received a summons from MPRP and a document in relation to a 1999 court case which she provided headed ‘Sentencing Resolution Verdict’.  It had regard to matters such as the fact that the MPRP was not in government at the time it allegedly ‘summonsed’ her, to her claims that others allegedly involved in publication of the article had not experienced repercussions and to the fact that (for reasons which it gave) the supposed court document looked like a poorly conceived fabrication.  The Tribunal also had regard to the applicant's frequent movements between Mongolia and Russia and her explanations in that respect in considering her claims about the past.  The Tribunal found a number of implausibilities, discrepancies, vague, unsupported and inconsistent aspects in the applicant's evidence. 

9. While the Tribunal found the evidence of publication of articles damaging to the MPRP was fraudulent, it stated that it had looked for consistent and reliable evidence of the applicant's claims about being subjected to court action and about having to flee to Russia and then to Australia.  However it found all of that evidence to be “highly flawed, brought down by inconsistency and further instances of document fraud”.  It found the only entirely reliable document before it was the applicant's passport, which persuaded it to find that the Mongolian authorities had no interest in her at all, let alone any that was of relevance to the Refugees Convention.  The Tribunal dismissed as a fabrication the claims introduced through the applicant's second adviser.  It also dealt with the claims which had been made by the applicant to the Department in her original application (as repeated in the review application).  It did not accept such claims which it found to be vague and undermined by independent information and the evidence from the applicant of her stable existence in Mongolia. 

10. The Tribunal did not accept that the applicant was a credible witness and it was not satisfied that she faced a real chance of Convention-related persecution in Mongolia.  Her fear of such persecution was not well-founded. 

11. The applicant sought review of the Tribunal decision by application filed in this court on 8 October 2003.  The grounds relied on in that application are that the Tribunal made an error “in understanding the ‘correct test’ to apply (effectuality of state protection) and in applying the definition of ‘well-founded fear’”.  In oral submissions and in a written document tendered at the start of the hearing the applicant made quite different claims to which I will return. 

12. Dealing first with the grounds in the written application: there is no basis for either of the claimed grounds of review.  Neither ground is particularised and neither ground establishes a jurisdictional error.  The Tribunal rejected the applicant's claims as lacking in credibility.  Credibility findings by the Tribunal where such findings are reasonably open on the evidence before it are properly the function of the decision-maker and generally not susceptible to judicial review.  See Minister for Immigration & Multicultural Affairs, Ex parte Durairajasingham (2000) 168 ALR 407 at 67 per McHugh J.

13. In this instance the Tribunal findings were open to it on the material before it for the reasons that it gave.  See Kopalapillai vMinisterfor Immigration & Multicultural Affairs (1998) 86 FCR 547, W148/00Av Ministerfor Immigration & Multicultural Affairs (2001) 185 ALR 703 and Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287. The Tribunal was not required to address specifically the ‘effectuality’ of state protection, having rejected the claims of the applicant as a fabrication. Nor has it been demonstrated (or is it apparent) that the Tribunal made an error in applying the definition of well-founded fear.

14. Given the Tribunal findings in relation to the lack of credibility of the applicant and the fabrication of the claims that she made then, as Wilcox and Madgwick JJ in Sellamuthu vMinister for Immigration & Multicultural Affairs (1999) 90 FCR 287 at [24]:

    “upon legally proper rejection of the credibility of an applicant in such a case there will be no basis for requiring that the RRT do no more than forthwith reject the claim for refugee status.” 

15. At the start of the hearing the applicant handed up a written submission.  It claimed first that everything she told the Tribunal at the hearing was true.  Of itself such a claim seeks merits review which is not available in this court.  The submission takes issue with the Tribunal consideration of the newspaper articles and the newspapers in which they were said to appear which the applicant had provided to the Tribunal.  The submission claims that the applicant asked her family to send an original article that she “had no idea that they could not find an original and they decided to collage it to copy the real one” and that if she knew that they did not find an original one she would never have submitted a collaged newspaper.  She claimed that she “was sure that it was submitting the real original newspaper”.  

16. There are a number of points to note about this claim.  First, the applicant’s claimed lack of knowledge about the collage is contrary to what the Tribunal records occurred in the Tribunal hearing.  The Tribunal recorded that when difficulties with the document were drawn to the applicant’s attention she acknowledged that her sister had advised her that she had been unable to find an actual copy of the September 1998 edition and had had the item made up to show the Tribunal how the article would have looked in newspaper form. 

17. More relevantly while the Tribunal found that the applicant had provided fabricated evidence, it went to consider whether it was false evidence of true facts.  No error is established by this complaint. 

18. The applicant also contended that she had submitted a lot of other documents which were not looked at by the Tribunal.  In oral submissions she clarified that she was referring to the bundle of supporting documentation submitted with her statement provided on

    
    

    11 July 2003.  She raised an issue as to whether or not the Tribunal had erred in failing either to look at or ask her questions about the articles and other documents that she had provided. 

19. First, it is clear that as the Full Court of the Federal Court said in WAEE vMinister for Immigration & Multicultural Affairs [2003] FCAFC 184 at [46]:

    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.  Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.

20. Also see MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at 27 to 28. In this instance the Tribunal dealt with the aspects or integers of the applicant's claims.

21. The applicant referred in particular to a document which was provided as Attachment 9 and an accompanying translation headed ‘Sentencing Resolution Verdict’.  This document relates to the applicant's claims in relation to involvement in a court case.  However, not only did the Tribunal deal with this claim, it also addressed specifically this documentation headed ‘Sentencing Resolution Verdict’ in its reasons for decision.  The Tribunal set out the applicant's claims in relation to receiving a summons from MPRP headquarters and a government department, noted the problems it had because the MPRP was not the government at the relevant time and would not have had jurisdiction to issue a summons against the applicant (or anyone else) and found her claims in this respect to be improbable for reasons that it gave. 

22. It addressed her claim that she was fined a significant amount in a court action and the documents she submitted in support of that claim. 

    
    

    It described difficulties with the document in attachment 9 including the absence of reference to any other party to litigation.  It found the document looked very much like a poorly conceived fabrication. 

23. In these circumstances it cannot be said that the Tribunal failed to look at or to have regard to such documentation.  It concluded that all of the evidence the applicant had provided was highly flawed, brought down by inconsistency and further instances of document fraud. 

24. Insofar as the applicant's claim is that the Tribunal did not raise such documents or issues with her at the hearing (or indeed any concerns that the Tribunal had about fabrication) the evidentiary basis for such a claim is not established.  There is no transcript of the Tribunal hearing before the court.  This is not a case in which it should be inferred that such matters were not raised.  No jurisdictional error is established in the Tribunal treatment of the documentation provided by the applicant. 

25. The applicant also submitted that the Tribunal was unfair to her, rude and intimidated her and that that was why she could not explain herself clearly.  Again, the factual basis for such a claim is not established in the absence of a transcript of the Tribunal hearing.  Moreover, the Tribunal is an inquisitorial body and must necessarily put critical issues to the applicant and raise its concerns with her. 

26. The applicant referred specifically to an error the Tribunal made in the hearing, mistaking one or two of the entry stamps in her passport for exit stamps and vice versa, which the Tribunal member later admitted were his mistakes. This is consistent with the Tribunal reasons for decision which refer to a misunderstanding in the hearing and the correction of this misperception. The Tribunal went on to deal with the application on the basis of the correct version of the applicant's passport and entry and exit stamps finding, however, that this did nothing to allay its concerns at the apparent ‘fearlessness with which the applicant had used her passport since supposedly evading justice in February 1999.’ After considering the applicant's evidence about her trips to and from Russia and the fact that her passport had been extended some four times, the Tribunal found on the basis of her passport that the authorities in Mongolia had no interest in the applicant let alone any that was relevant to the Convention. No procedural unfairness, failure to comply with section 425 of the Migration Act 1958 (Cth) or other jurisdictional error has been established on the material before the court.

27. Finally, the applicant contended that it was not her fault that she inadvertently submitted a collaged newspaper and that she appeared as a liar which she was not.  However, as I indicated to the applicant, this is not a re-hearing.  The Tribunal findings in relation to the applicant's credibility were open to it on the material before it for the reasons that it gave and no jurisdictional error has been established.  Accordingly, the application must be dismissed. 

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  It is appropriate that she meet the costs of the respondent.  The amount of $4,500 which is sought is appropriate in light of the nature of this and other similar matters. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  23 June 2005