SZCDC v Minister for Immigration

[2006] FMCA 288

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCDC v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 288

MIGRATION – RRT decision – Sri Lankan claiming to have witnessed political murder – did not attend Tribunal hearing – disbelieved by Tribunal – no error found.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91R, 91R(1), 426A, 426A(1), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119
VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407

Applicant: SZCDC

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2697 of 2003

Judgment of: Smith FM

Hearing date: 20 February 2006

Delivered at: Sydney

Delivered on: 20 February 2006

REPRESENTATION

Counsel for the Applicant: Mr J M Patel

Counsel for the First Respondent: Ms S McNaughton

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent. 

2. The application is dismissed. 

3. The applicant must pay the first respondent’s costs in the sum of $4,400. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2697 of 2003

SZCDC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 9 December 2003 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 October 2003 and handed down on 12 November 2003.  The Tribunal affirmed the decision of a delegate which refused to grant a protection visa to the applicant. 

2. Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth) but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the amending Act and Acts Interpretation Act 1901 (Cth), s.8).

3. The Court’s jurisdiction under s.483A is the same as the Federal Court jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Part 8 of the Migration Act, which have the effect that I do not have power to set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claim should be believed, nor whether he qualifies for a protection visa.

4. The present applicant arrived in Australia on a one month temporary business visa in May 2003.  His application for a protection visa was lodged on 18 June 2003 with the assistance of an agent, Mrs Chandrani Buddhipala. 

5. In his application the applicant said he was a young man aged 20, a national of Sri Lanka of Sinhalese ethnicity.  A statement attached to his visa said: 

   My family had been active supporters of the PA government.  …  

   my father was also a very powerful businessman and had the backing of the Government in every thing he did.  However, at the same time he became very unpopular among the UNP supporters.  I took part in all his activities and worked together with my father. 

6. The applicant claimed to have participated in a campaign supporting the PA government.  He said: “on the General Election day, an incident took place which changed our lives”.  He claimed to have been a witness with his cousin to a murder, in which two people were shot by supporters of the UNP.  He claimed that: “the election ended and the New UNP government was formed.  We knew that we would have problems as the UNP supporters began to harass the PA supporters and take revenge from them”.  He claimed to have been questioned by the police who had information that he had witnessed the murder.  His cousin was also questioned, and: 

   during this period we both received threatening calls, threatening to kill us if we gave evidence against them.  Last year in August 2002, my father was informed that the police were investigating about the shooting incident and that we would be called to courts to give evidence.  My father began to worry about the safety of my life because he knew that we would be asked to give evidence against the UNP thugs. 

7. After the applicant was questioned again in January 2003, his father “planned secretly to find a way to get me out of the country.  Then we had an opportunity to visit Australia for an athletic meet in Darwin since I was an athlete of my school and I had performed very well”.  The applicant then came to Australia and sought protection. 

8. A delegate refused the visa application on 4 August 2003.  In his or her reasons the delegate said: 

   The harm that he claims to fear is not due to his race, religion, nationality, political opinion nor membership of a particular social group.  His claims are based on fear that he may be harmed if he testifies.  This is harm based on his possible future actions, and having been witness to a crime, and is not Convention related.  Despite the fact that he was involved in politics, he does not fear politically motivated harm, rather he fears harm due to having witnessed the crime, ie murder. 

9. The applicant lodged an application for review by the Refugee Review Tribunal on 25 August 2003 assisted again by Mrs Buddhipala.  No further supporting material nor information was given to the Tribunal with the application, nor subsequently.  The application just said: “the delegate didn’t consider my personal circumstances”. 

10. By letter dated 15 September 2003 sent both to the applicant at his residential address and to his agent, the applicant was invited to attend a hearing by the Tribunal on 17 October 2003.  The letter clearly informed him: 

    The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.  … 

    If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice. 

11. The applicant was asked to complete a “Response to Hearing Invitation” form, and he did so, indicating that he wished to attend the hearing. 

12. In its statement of reasons the Tribunal said: 

    On 9/10/03 the Applicant and the Applicant’s adviser both advised the Tribunal that the Applicant wanted to give oral evidence.  However, the Applicant did not attend the hearing or contact the Tribunal to explain his failure to attend.  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the Applicant to appear before it. 

13. In none of the documents filed in this Court by the applicant is it contended that the Tribunal did not have power to proceed under s.426A(1), nor that the Tribunal’s discretion to so proceed miscarried. It is nowhere contended that the Tribunal was aware of any circumstances concerning the applicant’s non‑attendance which should have caused it to consider rescheduling a hearing or taking other action before deciding the matter.

14. At the commencement of today’s hearing, the applicant’s counsel informed the Court from the bar table that he had been instructed that the applicant did not attend the hearing because he was so advised by his agent, and he sought to call his client to give oral evidence to this effect.  However, no application was made to amend the grounds of appeal to raise any ground of judicial review to which that fact or circumstance would be relevant.  The proceeding had been on foot since 2003 and no evidence by way of affidavit has been filed.  It was not submitted that the applicant’s explanation for his non‑attendance was known to the Tribunal.  Due to its apparent irrelevance, I refused the request to permit the foreshadowed oral evidence to be led. 

15. Moreover, had a ground been sought to be raised based on the foreshadowed evidence, it would have failed, since there is clear authority that the Tribunal’s power to proceed under s.426A(1), if properly invoked, is unaffected by considerations of unfairness arising from circumstances of which the Tribunal is unaware, even in cases where an applicant lacked actual notice of the hearing – something which was not contended in the present case (c.f. VNAA v Minister for Immigration& Multicultural & Indigenous Affairs (2004) 136 FCR 407 at [16] applied in Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [12]).

16. The Tribunal’s reasons for affirming the delegate’s decision were brief.  Under the heading “Findings and Reasons”, the Tribunal referred to authority that “it remains for the Applicant to satisfy the Tribunal that all of the statutory elements are made out”.  It then assessed the claims made by the applicant in his written statement accompanying his visa application as follows:  

    Although the Applicant claimed in his statement attached to his primary visa application that his family (and particularly his father) were active supporters of the PA government, the Applicant did not claim that either he or his father were members of the PA; or that his businessman father (who continues to reside at the same address in Sri Lanka where the Applicant grew up) has ever suffered persecution in Sri Lanka because of his political opinions; or that he (the Applicant) has ever suffered serious harm in Sri Lanka amounting to persecution as defined in s.91R(1) of the Act.  Neither is it entirely clear (from the Applicant’s statements attached to his primary visa application) exactly whom he allegedly fears will persecute him in Sri Lanka, or why the authorities are unable or unwilling to protect him.  I find his story lacks credibility.  

    In the absence of any corroborative evidence to the Tribunal (either written or oral) from the Applicant, I am not satisfied that he was ever a member of the PA; or had any political profile at all (even as a supporter of PA); or that he was ever a witness to the murder of two UNP supporters on the day of the last General Election in Sri Lanka; or, as he waited for over two years after this alleged occurrence to depart from Sri Lanka (to attend an athletics meeting in Darwin in May 2003), he has a genuine fear of persecution in Sri Lanka for any reason at all.  In short, I am satisfied that his claims are a complete fabrication.  (Tribunal’s emphasis) 

    In summary, I am satisfied that the Applicant has never suffered persecution in Sri Lanka for a Convention‑related reason, and does not have a well‑founded fear of so suffering in the reasonably foreseeable future. 

17. The grounds of review which were ultimately formulated on behalf of the applicant in his counsel’s written submission were three: 

    21.Ground 1:  The Tribunal made its finding on the basis that the claims are complete fabrication (CB 070).  The Tribunal failed to give reasons for its belief.  It is submitted the Tribunal concluded that since the applicant did not attend the hearing and as there was no evidence to corroborate his claims it could not reach any conclusion but that all his claims were fabricated. 

    22.It is submitted the Tribunal erred in concluding that the applicant could not succeed unless his claims were supported by other corroborative evidence. 

    23.It is submitted that the Tribunal erred in concluding that the failure to attend the scheduled hearing could not be construed as any thing other than the Applicant’s claims had been fabricated.  The Tribunal erred in not giving any benefit of doubt to the applicant in respect of any of the claims made by him.  It is submitted that the conclusion was unreasonable and unfair. 

    24.Ground 2: The Tribunal’s decision that the applicant never suffered persecution is a wrong interpretation and application of Section 91R(1) of the Migration Act. It is submitted that it is not necessary for the applicant to establish that the applicant should have in fact suffered the harm he fears. The Applicant is required to have reason to fear persecution. It is not necessary to show that in fact he has suffered persecution.

    25.Ground 3:  The RRT made a jurisdictional error in that it failed to determine the applicant’s application in accordance with correct law and in accordance with its mandate in as much as the RRT misconstrued and misapplied the definition and notion of “persecution” and “well founded fear of persecution” for the purpose of the Convention. 

    26.The RRT misunderstood and misapplied the notion of persecution and well founded fear for the purpose of the Convention.  It is submitted that the Tribunal erred in concluding that neither the applicant nor his father were members of the political party and inferred that in law he could not claim that he could claim to have suffered political persecution. 

    27.The Tribunal erred in failing to grasp the implication of imputed beliefs and what the applicant had witnessed and whether or not any reasonable person in the applicant’s shoes would entertain such fear of persecution as claimed by the applicant. 

18. In his oral submissions, Mr Patel accepted that grounds 2 and 3 could not succeed, in circumstances where the Tribunal’s reasoning turned upon a rejection of the credibility of the history presented by the applicant. He accepted that it was not necessary for the Tribunal to engage in analysis of the extent to which that history showed the past suffering of “persecution” within the Convention definition at s.91R.

19. Ground 1 therefore became the focus of his oral submissions, and he developed arguments additional to those in the written submission.  He argued that the Tribunal followed simplistic reasoning by thinking that the mere fact that the applicant did not attend his hearing necessarily resulted in the rejection of his claims.  It was submitted that the Tribunal unreasonably failed to investigate why the applicant did not attend, and that the Tribunal failed to consider possible reasons for his non‑attendance other than a consciousness of untruthful claims.  It was also submitted that the Tribunal had not considered whether it was left in doubt as to the truth of the claims. 

20. I do not accept any of the arguments presented seeking to establish jurisdictional error in the reasoning followed by the Tribunal.  The Tribunal’s reasoning emerges clearly, although it is necessary to undertake a contextual analysis to understand the Tribunal’s last sentence in its last full paragraph, where it concluded: “in short, I am satisfied that his claims are a complete fabrication”. 

21. In my opinion, a proper understanding of the Tribunal’s reasoning is that it has followed the pathway: 

    i)identifying substantial problems with the history which had been presented in the written statement by the applicant, in particular, insofar as it might attempt to show a political complexion for the applicant’s fears;

    ii)a factual conclusion by the Tribunal that “his story lacks credibility” as presented in the written statement;

    iii)an opinion that the Tribunal could not be satisfied as to the truth of some key claims made in the written statement “in the absence of any corroborative evidence to the Tribunal (either written or oral) from the Applicant”;

    iv)a finding that overall “I am satisfied that his claims are a complete fabrication”; and

    v)a conclusion showing a positive satisfaction “that the Applicant has never suffered persecution in Sri Lanka for a Convention‑related reason, and does not have a well‑founded fear of so suffering in the reasonably foreseeable future”. 

22. I consider that it is better to read the Tribunal’s fourth point, not as a restatement of its previous point as to the absence of corroboration in relation to key elements, but as an independently stated conclusion of fact from the overall nature of the evidence and the circumstances in which it had been presented.  Its reference to “in short” thus has the meaning of “in conclusion” rather than “that is”.  I do not consider that the Tribunal has illogically converted an opinion that it was not satisfied into a positive finding of “fabrication”.  Rather, the latter finding was a further conclusion. 

23. In my opinion, the Tribunal’s factual conclusions were open to it on the evidence.  I do not consider that the Tribunal’s determination was “irrational, illogical and not based on findings or inferences of facts supported on logical grounds” (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]).

24. I reject the submission that the Tribunal did not address the particular claims made by the applicant, but followed simplistic reasoning based solely on the non‑attendance of the applicant at the hearing.  Plainly, its reasoning I have extracted above did much more than that.  Indeed, I do not consider the Tribunal has given any particular significance to the non‑attendance by the applicant at the hearing, other than noting that the Tribunal was not given any corroborative evidence of key elements in the claims, in circumstances where the applicant had been put on notice that the Tribunal had not been satisfied on the material before it. 

25. I was referred to no authority in support of the proposition that the Tribunal had a duty to investigate the reasons for the applicant’s non‑attendance at the hearing, or to consider expressly various hypotheses consistent with the truth of the claims rather than their lack of truth.  On my understanding of authorities, the Tribunal is under no such duty (see, for example, Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] and NBGZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 119 at [48] and [56]).

26. Nor, in my opinion was the Tribunal under any duty to show in its reasons that it did consider the hypothesis that it might be wrong in rejecting the truth of the claimed history.  The Tribunal’s reasons show that it was left in no doubt that the claims were “a complete fabrication”, and in those circumstances it was under no duty to ask itself “what if I am wrong?” (see Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 231‑233). Other Tribunals might have been left in a state of lack of uncertainty as to the truth of the applicant’s claims and whether he met the Convention definition, but this Tribunal has arrived at firm findings of fact which rejected the applicant’s claims. As I have indicated, I consider it was open to it to do that as a matter of law.

27. For the above reasons, I am not persuaded by the arguments presented to me that the Tribunal’s decision was affected by jurisdictional error. It therefore is a privative clause decision for which relief is barred under s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding twenty‑seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  7 March 2006