SZBXK v Minister for Immigration and Citizenship
[2007] FCA 1780
•19 November 2007
FEDERAL COURT OF AUSTRALIA
SZBXK v Minister for Immigration and Citizenship [2007] FCA 1780
SZBXK v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1709 OF 2007TRACEY J
19 NOVEMBER 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1709 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZBXK
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE OF ORDER:
19 NOVEMBER 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs fixed at $3,500.
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 1709 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZBXK
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
TRACEY J
DATE:
19 NOVEMBER 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BACKGROUND
This is an appeal against a judgment of a Federal Magistrate dated 8 August 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 December 2005: see [2007] FMCA 1451. The Tribunal had affirmed a decision of a delegate of the first respondent (“the delegate”) dated 4 March 2003 to refuse to grant the appellant a protection (class XA) visa.
The appellant is a citizen of the Ukraine who arrived in Australia on 5 November 2002. He entered Australia on a temporary business visa. On 29 November 2002, the appellant applied for a protection visa but that application was refused by the delegate on 4 March 2003. On 4 April 2003 the appellant applied for review of the delegate’s decision to refuse to grant the protection visa. The Tribunal had previously affirmed the delegate’s decision, but that decision was subsequently set aside by consent in the Federal Magistrates Court on 28 June 2005. The decision of the Tribunal on the rehearing is the subject of the present appeal.
REFUGEE REVIEW TRIBUNAL
The appellant claimed to have a well-founded fear of persecution on the basis of his actual or imputed political opinion. The appellant claimed that, through his work as a geologist, he became aware of the Ukrainian government’s policy of spending millions of dollars in developing ‘small gas-fields’. Due to lack of controls, the money spent on these projects was being collected by corrupt officials. He claimed that he advised the chairman of his company of what was occurring. One week later he was dismissed. The appellant gave evidence as to intimidatory conduct which had been directed against him by Ukrainian authorities.
The event that allegedly spurred his departure occurred on 26 August 2002 when several police and others burst into his apartment with a search warrant and found a gun. As a result he was arrested and taken to a police station where he was told that, unless he left the Ukraine, he would be detained. The appellant travelled to Russia, obtained a visa from the Australian embassy in Moscow, returned to the Ukraine for about a month, and then travelled to Australia.
The appellant also claimed that the information contained in his original business visa application was incorrect. The application indicated that the appellant was a “Director of Sports” who wished to come to Australia to cover the 2002 World Masters Games in Melbourne, and included documents supporting the claim. The appellant claimed that he had never worked as a journalist and had no knowledge of the documents being submitted. He said that such documents could easily be forged.
The Tribunal found that the appellant was not a credible witness. The Tribunal was not satisfied that a letter purporting to be from the Masters Games organisation was fabricated. The letter pre-dated the police raid. The Tribunal therefore concluded that the appellant had arranged to leave the Ukraine prior to the search of his apartment. The Tribunal had telephoned the Masters’ Games office on the number appearing on the letter but found that it was no longer in use. Further, it found that the appellant had returned from Russia to the Ukraine, despite having a passport and a visa for Australia. Relying on independent country evidence, the Tribunal did not accept the explanation that the appellant could not apply for asylum in Russia, and that he was able to return to the Ukraine for a short period because authorities had agreed to postpone his persecution while he made arrangements to leave for Australia.
For these reasons the Tribunal rejected the appellant’s claims about corruption and found that he lacked any political profile while employed by the gas company. The Tribunal found that he was never arrested, assaulted, had his house searched or had a false case made against him. The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.
FEDERAL MAGISTRATES COURT
The appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. The matter was commenced on 13 February 2006. The amended application, filed on 9 May 2006, contained the following grounds:
1.The Tribunal failed to comply with s 424A(1) of the Migration Act 1958 (Cth) (“the Act”); and
2.The Tribunal failed to obtain information to verify the documents in relation to the Masters Games and the decision lacked procedural fairness because the Tribunal’s finding on credibility was based on the subjective opinion of the presiding member of the Tribunal. The appellant cited the decision of SZFVL v Minister for Immigration [2005] FMCA 991 in support of this second ground.
The Federal Magistrate noted that both of the appellant’s grounds related to the Tribunal’s procedures in dealing with the Masters Games documentation. His Honour held that it was well settled that there is no duty upon a Tribunal to make its own enquiries. He noted that the duty to inquire, recognised in SZFVL, arises only “where it would be procedurally unfair for a presiding member to make an adverse credibility finding”. His Honour did not find that the Tribunal’s failure to inquire was procedurally unfair. The Federal Magistrate noted that the Tribunal mentioned in its reasons that it did attempt to call the Masters Games organisation using the telephone number on the letter but was unsuccessful in its attempt to make contact. His Honour also noted that an applicant is required to advance his or her own case, and questioned why the appellant did not make his own inquiries, particularly as the matter was raised in the letter sent to him pursuant to s 424A of the Act.
The Federal Magistrate recorded that the appellant had made an oral submission that amounted to an allegation that the Tribunal was biased, but his Honour found a lack of evidence to support the claim. His Honour could find no jurisdictional error and dismissed the application.
APPEAL TO THIS COURT
The notice of appeal filed in this Court by the appellant on 27 August 2007 raises the following grounds of appeal:
·The Federal Magistrate failed to find that the Tribunal had made a jurisdictional error by failing to take into account evidence supporting the appellant’s credibility; and
·The Federal Magistrate failed to find that the Tribunal’s reasoning was so unreasonable as to lead to the conclusion that the Tribunal failed to address the appellant’s claims with an open mind
The appellant appeared in person at the hearing of his appeal. He had the assistance of an interpreter.
The appellant’s argument concentrated on the issue of whether the Tribunal had failed to comply with the obligation, imposed on it by s 424A of the Act, by not advising the appellant that an officer of the Tribunal had attempted to make inquiries of the staff of the World Masters Games organisation but had failed to make contact because the telephone number on the organisation’s letterhead was no longer in use. In written submissions the appellant put the point this way:
“I was not told nor given the opportunity to consider the fact that a Tribunal officer called the telephone number provided on the letterhead of the Worlds (sic) Masters Games organisers and Telstra informed the officer that the telephone number was no longer connected. Nor was I allowed to become aware that the Tribunal would regard the Telstra officer’s response as compelling evidence to conclude that ‘the applicant was not a witness of truth.’”
Counsel for the Minister contended that the information that a Tribunal officer had attempted, without success, to make contact with the World Masters Games organisation was not “information” of the kind comprehended by s 424A of the Act and that it had not been relied on by the Tribunal for the purpose of concluding that the appellant was not a witness of truth.
In my opinion a fair reading of the Tribunal’s reasons supports the Minister’s contention. The Tribunal said:
“Documents in the applicant’s Department (sic) file, provided in support of his business visa, indicate that on 6 August 2002 the World Masters organisation had sent, by facsimile, information to support his application for a business visa. When put to the applicant, by Tribunal ,1 he stated that he could not comment on the documents which supported his visa application because he had not provided them to the Embassy. When put to him by Section 424A letter by Tribunal 2, he stated that it is very easy to copy the letter and delete names and insert new details. It is clear that the applicant obtained the benefit of a business visa on the basis of information provided in that letter. That letter was provided by the applicant or someone on his behalf in order to obtain a visa.
The facsimile imprint, on 6 August 2002, leads me to conclude that the applicant’s details had been provided to the World Masters organisation sometime before 6 August 2002 and some twenty days prior to the events of 26 August 2002, the reason for the applicant’s flight from the Ukraine.
The applicant suggested that the Tribunal contact the World Masters Games organisers to request information whether the applicant’s name had been mentioned. A Tribunal officer called the telephone number provided on the letterhead of the World Masters Games organisation. Telstra informed the officer that the telephone number was no longer connected.
I am satisfied the letter from the World Masters Games was not a fabricated letter. I reject his explanation that someone had tampered with the document. I am satisfied that letter was one of the documents provided in order to obtain the visa.
I am satisfied that the applicant was making arrangements to leave the Ukraine on 6 August 2002, before the date of his claimed reason for flight from the Ukraine.
I am satisfied the applicant is not a witness of truth.”
The critical issue on which the appellant’s credibility turned was whether the events of 26 August 2002 were the catalyst for his departure from the Ukraine. Whether he was or was not to be believed on this point was a question, the answer to which did not depend on the authenticity of otherwise of the letter from the World Masters Games organisation. What was critical was that the letter had been sought and obtained at sometime prior to 6 August 2002. It mattered not whether it was the appellant or someone acting on behalf of the appellant who had obtained the letter. What was important was the fact that it had been sought well before 26 August 2002.
The appellant faces a further difficulty. The point which he presently seeks to raise was not advanced before the Federal Magistrate’s Court. As his amended application and the Federal Magistrate’s reasons indicate, s 424A of the Act was relied on but not for the purpose for which it was deployed before me. The Federal Magistrate records in his reasons (at [11]) that, before him, the applicant had argued “that the Tribunal fell into jurisdictional error by not making sufficient inquiries of the World Masters Games organisers notwithstanding his request that they did so and thereby contravened the section.”
An examination of the Tribunal’s file indicates that, in any event, the critical issue was squarely raised with the appellant. By letter dated 11 November 2005 the Tribunal advised him that:
“The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.
The information is as follows:
Your name was on a document from World Masters Games with an imprint of 6 August 2002 in your business visa application and a letter dated 30 July 2002. A document provided by the Lviv Television and Radio Company correctly provides your date of birth and passport number.
This information is relevant as it indicates you were in the process of preparing to leave the Ukraine prior to an incident of 26 August 2002 that you told Tribunal one …was the reason for your flight to Australia.”
The Tribunal thereby provided the appellant with the opportunity to comment on the point which led to the adverse credibility finding.
In my view the appellant has not established that the Tribunal committed any jurisdictional error or that the Federal Magistrate made any appellable error.
The appeal should be dismissed with costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate:
Dated: 19 November 2007
The appellant appeared in person Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Sparke Helmore Date of Hearing: 19 November 2007 Date of Judgment: 19 November 2007
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