SZBVM v Minister for Immigration & Citizenship

[2007] FCA 332

FEDERAL COURT OF AUSTRALIA

SZBVM v Minister for Immigration and Citizenship [2007] FCA 332

MIGRATION LAW – Meaning of “information” – Failure by one applicant to reply to Tribunal questions not information for another applicant – Discretion of the Tribunal – Migration Act 1958 (Cth), ss 424A(1), 424A(3)(b), 427.

Migration Act 1958 (Cth), ss 424A(1), 424A(3)(b), 427.

ApplicantS301/2003 v the Minister for Immigration and Multicultural Affairs [2006] FCAFC 155, cited
WAGP of 2002 v Minister for Immigration & Multicultural Affairs (2002) 124 FCR 276, cited

SZBVM & SZBVN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1990 OF 2006

TAMBERLIN J
19 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1990 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBVM & SZBVN
Appellants

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	19 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1990 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBVM & SZBVN
Appellants

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE:	19 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a Federal Magistrate’s Court judgment dismissing an application for review of a decision of the Refugee Review Tribunal made on 7 March 2006 which affirmed a decision of a delegate to refuse to grant a protection visa.   The appellants are husband and wife.  Only the appellant wife made substantive claims for the visa.

2. The appellant claims to fear persecution in Russia because of race. She claimed to be of Chechen ancestry and appearance and said that for this reason she had been detained and beaten on occasions between 1994 and 2002.  The Tribunal found that the claims were neither plausible nor credible after giving detailed reasons.  The Tribunal did not accept that she was of Chechen background and decided that her application should be considered on the basis that she is of Russian nationality.

3. The credibility issue turned, in important respects, on the applicant’s assertions that visa stamps for travel to the Maldives and Panama had been entered without her knowledge and consent in her passport or that of her husband by a travel agent.  She said that they have never travelled to these places.  When she was asked by the Tribunal about the name of the travel agency in Moscow she could not remember the name and said that her husband would probably know because it was in his notebook.  No further evidence concerning this notebook was provided to the Tribunal from either the applicant or her husband.  The husband did not attend the hearing to support her case because she said he ‘had to go to work’.

4. On 6 January 2006 the Tribunal wrote two letters to the applicant seeking information and further evidence to support her claims.  The letters noted that, according to country information, visas were sometimes deliberately forged.  She was requested to provide a Statutory Declaration from her partner verifying that is what happened to their passports.  No declaration was provided.  There was no reason to believe that she did not communicate with her husband.

5. On 17 January 2006, the appellant’s representative replied by referring to articles and to the web, and in particular to statements that there were often false visas stamped on passports in Russia.  Importantly, however, no evidence was provided by her husband as requested.

6. On the hearing the appellant said again that she and her husband had not travelled abroad and that the visas were false.  The Tribunal raised the issue with her and said that the applicant’s husband had not provided any statement or support for the claims that the visas were false and that this was contrary to her assertion.

7. The applicant asked if the Tribunal would itself check the visa stamps in the passport.  The Tribunal declined to make its own enquiries and stated that the passport was very strong evidence.  The Tribunal refused to contact foreign countries to itself verify her case because this would be tantamount to advising countries of the fact she was a refugee applicant and the Tribunal did not want to disclose that fact.  The Tribunal not unreasonably state that she and her husband could make any necessary inquiries.

8. The Tribunal in reaching its conclusion relied heavily on the fact that the applicant’s husband did not produce any evidence to corroborate her claim that the visas, although regular on their face were false, despite having been invited to do so.  The Tribunal found that the applicant’s husband did not support the applicant’s claims although it accepted that false visas could be entered in passports for the aim of achieving refugee status or to travel to Australia.  It considered the decisive factor was the fact that he was “not prepared” to provide evidence although he had been informed of its request.  The Tribunal then found the applicant’s husband could not or would not substantiate the applicant’s claim and therefore it did not consider it should make any further investigation or refer the matter for verification of the visa nor was it prepared to make inquiries with the Document Examination Unit as that would not resolve the question whether the visas had actually been used for travel or whether they were placed at a later stage for the purpose of deception.

9. Because of its finding that the passport visa stamps had not been shown to be false, the Tribunal found that the applicant in fact had travelled to the Republic of Panama and the Maldives in early 2001.  Consequently the applicant was found not to be a credible witness and her evidence was rejected.

10. Having found that the applicant, contrary to her assertion, had travelled to Spain, Italy, France, Finland and Sweden during the period she claimed she was persecuted and did not seek protection, but returned to Russia, the Tribunal found the applicant did not have a genuine fear of persecution.

    APPEAL

11. The appellant raised three grounds. The first is that the Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (Cth) when it did not inform the applicant wife of particulars of the absence of corroborating information from her husband’s protection visa application on which it relied, or give her any opportunity to comment on it or appreciate its relevance.

12. The appellant contends that she should have been informed that the failure of her husband to provide a Statutory Declaration or any information to corroborate her case would be used adversely to her case.

13. The absence of a response by her husband in my opinion was not ‘information’ but rather an observation and part of the reasoning process about the deficiency in the evidence before the Tribunal: see WAGP of 2002 v Minister for Immigration & Multicultural Affairs (2002) 124 FCR 276 at [26]-[29].

14. A failure to deal with or raise the matter in a protection visa application is not ‘information’: ApplicantS301/2003 v the Minister for Immigration and Multicultural Affairs [2006] FCAFC 155 at [19]. The reference in the present case to non-provision of a statement when an applicant is specifically asked to do so, given the close relationship between the parties, can properly be treated as part of an appropriate reasoning process to reach the conclusion made in this case on her credibility. The absence of the corroboration is a fact and is not information. It has been used as a step in the reasoning process and not as information. The fact is that the request was not met. It was open on this material for the Tribunal to form the view that the appellant must have been aware of the fact that it was not provided.

15. Accordingly, the challenge made under s 424A must fail. It is thus not necessary to deal with the second ground of appeal, namely whether s 424A(3)(b) applies to information given by the husband. This issue raises a question as to whether the applications of the applicant and her husband should be treated as a joint application or as separate applications. There are different views in the Court on this aspect and, because it is not necessary for me to determine this question, I do not make any decision on this part.

16. The third ground of appeal relates to an asserted duty of the Tribunal to make inquiries under s 427. The reason why the Tribunal did not make inquiries in this case are set out in the reasons and I can see no error in them. The reasoning is to the effect that the husband had been specifically requested to provide information and a Statutory Declaration as to passports and visas, and yet for no apparent reason failed to do so, notwithstanding that he was aware of the request. The Tribunal could properly consider that before it made any investigation of its own it should be persuaded that the appellant had provided all relevant evidence at her disposal or at least explain why it is not provided. There is no general obligation on the Tribunal to make further inquiries and in my view the circumstances of this case were not such as to generate an obligation on the Tribunal to make further investigations in the absence of any indication that such enquiries would be futile.

17. On the state of the evidence before the Tribunal it was open to it to find that the husband was not prepared to corroborate the wife’s case, and given that lack of co-operation, I can see no error in the Tribunal’s reasoning to the effect that the visas were valid.  I have not been referred to any appellable error in the reasons of the Federal Magistrate given the approach taken by the Tribunal on the findings open to it.

18. Accordingly, this appeal is dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:        19 March 2007

Counsel for the Applicant:	Darren Jenkins
Solicitor for the Applicant:	None
Counsel for the First Respondent:	Tim Reilly
Solicitor for the First Respondent:	Blake Dawson Waldron
Date of Hearing:	5 March 2007
Date of Judgment:	19 March 2007