SZBXK v Minister for Immigration & Anor
[2007] FMCA 1451
•8 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBXK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1451 |
| MIGRATION – Review of decision of RRT – whether Tribunal should have made further enquiries at the request of the applicant. |
| Migration Act 1958, ss.424A, 4241(a) |
| SZFVL v Minister for Immigration [2005] FMCA 991 SZATG v Minister for Immigration [2004] FCA 1595 VCAK of 2002 v Minister for Immigration [2004] FCA 459 Dranichnikov v Minister for Immigration (2003) 197 ALR 389 |
| Applicant: | SZBXK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG448 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 8 August 2007 |
| Date of last submission: | 8 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 8 August 2007 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondent: | Ms A Mitchelmore |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $3,900.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 448 of 2006
| SZBXK |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of the Ukraine. He arrived in Australia on 5 November 2002. On 29 November 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 4 March 2003 the delegate of the Minister refused to grant a protection visa and on 7 April 2003 the applicant applied for review of that decision. The Refugee Review Tribunal held a hearing into the applicant’s claims and on 29 October 2003 affirmed the decision of the delegate.
On 17 November 2003 the applicant filed an application for review of that decision with the Federal Magistrates Court. On 28 June 2005 Scarlett FM, by consent, quashed the decision of the Tribunal and referred the matter back to it to determine according to law. The matter was reassigned to another member of the Tribunal. On 9 September 2005 the second Tribunal held a hearing which the applicant attended. On 19 October 2005 the applicant provided a written submission to the Tribunal. On 11 November 2005 the Tribunal sent to the applicant a letter pursuant to s.424A of the Migration Act 1958 (the Act”). On 21 November 2005 the applicant submitted further information to the Tribunal in response to that letter. On 21 December 2005 the Tribunal determined to affirm the decision of the delegate and handed that decision down on 17 January 2006.
The grounds upon which the applicant claims to be a person to whom Australia owes protection obligations are succinctly explained by the Tribunal at [CB 240].
“The applicant claims he fears state agents and the Ukranian government is complicit in the harm that occurred to him. The government is unwilling to provide protection. The applicant claims to fear persecution in Ukraine because of his activities in attempting to expose wasteful expenditure on unprofitable projects in a state-owned gas exploration company. He was sacked from his job, and arrested and fined following a protest strike, he wrote protest letters to the authorities and the Governor, he was severely bashed, hospitalised. He departed Ukraine and went to Poland for a day. He was forced to leave the country by the police who threatened him with a trumped up charge of possession of a firearm if he did not leave. The applicant left Ukraine and went to Russia. He returned to the Ukraine as the police had postponed a fabricated case against him. A few weeks later he departed Ukraine to Australia.”
The Tribunal also sets out at [CB 241-242] a short chronology which I do not believe it is necessary to repeat in these reasons. The method by which the applicant obtained a visa to travel to Australia was to utilise the services of an agent to obtain him a short-stay business visa to act as a journalist covering a sporting activity known as the World Masters Games. The relevant documents relating to that application are contained in the green book commencing at [CB 1] and concluding at [CB 9]. The applicant was found by the Tribunal not to be a journalist but to be what it describes as a geologist working for a gas extraction company.
The Tribunal in its findings and reasons concluded that it could not accept the applicant as a witness of truth and as a result of that finding could not accept that he was a person who effected the protests against the state for waste of resources that he had claimed nor that he had been persecuted in the manner which he had described. The facts which underpin the Tribunal’s failure to accept the applicant as a credible historian were twofold. The first related to the application for the short-stay business visa. The Tribunal pointed out to the applicant that he had maintained that the major reason for him deciding to leave the Ukraine was a police search conducted of his home on 26 August 2002. The applicant told the tribunal that during the course of this search a firearm was planted and then found by the police. He was warned, at that time, to leave the country and it was suggested to him that the criminal case that would be brought consequent upon the finding of the firearm would be held over so that he may take the opportunity to accept the police advice and leave Ukraine.
The Tribunal raised with the applicant it’s concern that the documentation relating to the application for the short-stay business visa appeared to indicate that the visa had been applied for some time before 26 August and it made particular reference to a facsimile document and coversheet found at [CB 6 and 7] purporting to be a copy of a letter written by the media and communications officer of the World Masters Games to the visa officer at the Australian Embassy in the Ukraine. The fax cover sheet and the fax imprints on those documents indicate that the documents were prepared and sent on 6 August 2002. The Tribunal concluded that the applicant had clearly made up his mind to leave the Ukraine before the alleged incident on 26 August and therefore did not find his story concerning what occurred on that date to be credible.
The applicant told the Tribunal nothing whatsoever to do with the application for the short-stay business visa. He said that it was put in on his behalf by an agent. Interestingly, the document which is found relevantly at [CB 4] is not signed. I am also puzzled by the fact that the letter was written to the visa officer at the Australian Embassy in the Ukraine. But it would appear that there is no Australian Embassy in the Ukraine because the applicant had to go and get his visa from the Australian Embassy in Moscow. This was not a matter raised before me and does not appear to have been pointed out to the Tribunal by the applicant.
During the course of the hearing the applicant asked the Tribunal to make inquiries of the World Masters Games organisation to confirm his story that his name had been placed in the letter by some other person and that in fact the letter was not genuine. The Tribunal took up the applicant’s suggestion to the extent of telephoning the organisation at the number found on the letter. The Tribunal was told that the telephone number was no longer in use [CB 243]. The Tribunal concluded:
“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 the 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.”
The second matter which gave the Tribunal reason to conclude that the applicant was not a credible witness was that he left the Ukraine in order to obtain his visa from the Australian Embassy in Moscow upon a date after 26 August 2002 yet he returned to the Ukraine and remained there for approximately one month before departing for Australia from the Ukraine. This, incidentally, raises another interesting question that was not discussed with the Tribunal and that is that the applicant appears to have applied for a visa in order to cover an event that was alleged to commence on 2 October 2002 and conclude on 18 October 2002 [CB 1] and yet did not leave until approximately one month after the event concluded.
During the course of the Tribunal hearing the failure to leave as soon as possible after 26 August 2002 was discussed with the applicant at some length. The applicant had told the Tribunal that he could not possibly have settled in Russia because he did not believe that the Russians would protect him. The Tribunal’s grounds for not accepting the applicant’s evidence in relation to this matter was not that it did not accept that he would receive no protection in Russia if he should ask that country for asylum, but rather that he returned from Russia when he had no need to do so because he was capable of travelling from Moscow to Australia and had the passport and the visa with him at the time.
On 9 May 2006 the applicant filed with this court an amended application which makes an allegation of a failure by the Tribunal to comply with s.424(1)(a) of the Act. But in fact his claim is somewhat different. The applicant argues that the Tribunal fell into jurisdictional error by not making sufficient enquiries of the World Masters Games organisers notwithstanding his request that they did so. He argues that it would have been very simple for the Tribunal to have made such enquiries and if that had been done an important part of his story would have been corroborated, namely, that the documents found in the court book allegedly derived from the World Masters Games were not documents that had originally contained his name. The applicant referred to the decision of this court in SZFVL v Minister for Immigration [2005] FMCA 991 where Driver FM had said:
“The presiding member had available to him the power to obtain a medical assessment which would also have corrected the mistake. The presiding member chose not to exercise that power. The presiding member probably deterred the applicant from introducing his own medical evidence by leading the applicant at the hearing to believe that his claim of torture had been accepted. In the circumstances, and notwithstanding the invitation to comment made after the hearing, it was procedurally unfair for the presiding member to make an adverse credibility finding based only upon the subjective opinion of the presiding member.”
It is well settled now that there is no duty upon the Tribunal to make it’s own enquiries. Notwithstanding s.427(1)(d). As Hely J said in SZATG v Minister for Immigration [2004] FCA 1595 at [22]
Section 427(1)(d) of the Act empowers the RRT to require the Secretary to arrange for any investigation that the RRT thinks necessary with respect to the review, and to give the RRT a report of that investigation. However, s 427 confers a power on the RRT, but does not impose any duty or obligation on the RRT to exercise that power: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [43] (Gummow and Hayne JJ).
See also VCAK of 2002 v Minister for Immigration [2004] FCA 459 per Crennan J at 27.
The applicant’s reliance upon the finding in SZFVL clearly points out the difficulty which he has in substantiating his claim that the Tribunal’s failure to take the matter further than the telephone conversation with Telstra founds a jurisdictional error. As Driver FM says:
“The duty to inquire arises where it would be procedurally unfair for a presiding member to make an adverse credibility finding.”
To my mind it could not be said that the Tribunal’s failure to inquire would be procedurally unfair, in this case, particularly as it did do something at the request of the applicant. It must also, of course, never be forgotten that the applicant, whilst not having any onus, is required to advance his own case and to do that which is necessary to allow the member to come to the state of satisfaction required by the Act. As Kirby J said in Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at [78]:
“The function of the tribunal, as of the delegate, is to respond to the case that the applicant advances.”
It seems to me there was no reason why, if the applicant was so certain that this document was not genuine and that enquiries of the World Masters Games would establish this, that he did not, himself, contact the organisation particularly when the matter was raised in the s.424A letter dated 11 November 2005. The response to that letter was yet another request by the applicant for the Tribunal to make it’s own enquiries rather than he, by making the enquiries himself, attempting to establish the credibility of his allegation.
Before me today the applicant stated that he had insisted that the Tribunal get in touch with the organisers and offered to make a formal request. It is not entirely clear whether the formal request was to be made to the organisers or to the Tribunal. The difficulty I have with that submission is that there is no transcript available from which I can take the matter any further. In any event, The tribunal did try and contact the organisation but was unable to do so.
The second point made by the applicant was that the Tribunal could easily have found the current telephone number of the organisation, which he says at all times existed and still exists, and could then have made the further enquiries. I accept that it was possible for the Tribunal to have undertaken more enquiries than it did. But if the Tribunal was not obliged to make enquiries and if a failure to make enquiries does not constitute a jurisdictional error in the circumstances of this particular case then the failure to make further enquiries than it actually did would not assist the applicant.
The third point the applicant made was that the Tribunal should have made those further enquiries because the evidence which it had before it clearly indicated that the documents were not authentic. The first limb of that argument was said to be that the fact that the telephone number was not connected indicated that the telephone number on the letter was not genuine. It is to be remembered that the response to the Tribunal’s telephone call did not reveal that there was never any telephone number associated with this organisation that matched the one on the letter but merely that the telephone number that was telephoned was no longer in use. I do not believe that that response indicates that the letter was not genuine.
The second limb raised by the applicant was that the Tribunal had accepted that he was a geologist. The applicant argued before me that if the Tribunal had accepted that he was a geologist it must also have accepted that he was not a journalist and if he was not a journalist then the letter was false. I cannot accept this argument. There is no reason whatsoever why the applicant could not have made a false application for a business visa to Australia using an agent to claim that he was a journalist. This court frequently sees applications for visas of all types that are false in many material particulars.
At the heel of the hunt the applicant told me that he did not believe that the Tribunal had addressed his claims with an open mind. This is an allegation of either ostensible or actual bias. The authorities make it clear that such an allegation must be clearly made and strictly proved. It cannot be done by an oral allegation pointing to no evidence or no matters found on the face of the Tribunal’s decision itself.
I am satisfied that, in this case, the Tribunal reached its decision without falling into any of the traps that identify jurisdictional error. The application shall be dismissed. The applicant shall pay the first respondent’s costs which I assess in the sum of $3,900.00.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date:
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