SZCXY v Minister for Immigration

[2006] FMCA 684

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZCXY v MINISTER FOR IMMIGRATION [2006] FMCA 684

MIGRATION − Review of RRT decision − where Tribunal found applicant not to be credible on basis of inconsistent evidence − whether “Wednesbury unreasonableness” − whether Tribunal ignored relevant considerations in making its decision − whether jurisdictional error by not sending s.424A letter − whether applicant invited Tribunal to look at her entire DIMIA file for the purpose of review − whether reasonable time afforded to applicant to produce further evidence − whether bias on part of decision-maker − whether delegate’s decision-making period of 24 hours constitutes jurisdictional error.

Migration Act 1958, ss.9, 424A(3)(b), 422B
Federal Magistrates Court Rules 2001

Minister for Immigration v Eshetu (1999) 162 ALR 577
Minister for Immigration; Ex parte Applicant S106 v Minister for Immigration (2003) 198 ALR 59
Applicants S276 of 2002 v Minister for Immigration [2004] FCA 330
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
SZAKF v Minister for Immigration [2004] FCA 1719
Ex parte Durairajasingham (2000) 168 ALR 407
Ex parte S154/2002 (2003) 201 ALR 437
Applicant M189 of 2002 v Minister for Immigration [2004] FCAFC 131
SZEEU v Minister for Immigration [2006] FCAFC 2
M55vMinister for Immigration [2005] FCR 131
SZGGT v Minister for Immigration [2006] FCA 435

Applicant: SZCXY

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File number: SYG647 of 2004

Judgment of: Raphael FM

Hearing date: 1 May 2006

Date of last submission: 1 May 2006

Delivered at: Sydney

Delivered on: 1 May 2006

REPRESENTATION

For the Applicant: Applicant in person

Counsel for the Respondent: Mr T Wong

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $5,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG647 of 2004

SZCXY

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Thailand.  She arrived in Australia on 22  August 2000.  On 2 October 2000 she lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 3 October a delegate of the Minister refused to grant a protection visa and on 31 October 2003 the applicant applied for review of that decision.  On 17 November 2003 the Tribunal wrote to the applicant advising her that it had considered the material before it in relation to her application but was unable to make a decision in her favour on that information alone.  The Tribunal invited the applicant to a hearing which she attended together with an interpreter. On 22 January 2004 the Tribunal determined to affirm the decision not to grant a protection visa and handed down that decision on 17 February 2004. 

2. The applicant claimed, in her original application for protection, that she had worked in a jewellery store which was frequented by a prominent politician. This politician had introduced the applicant to his "She male", a man named Coco.  The applicant alleged that the politician was well known in Thai circles as corrupt and having links with criminal elements.  The applicant told a story of having been in a nightclub in the Suhkumvil area of Bangkok when she saw this Coco shoot a drug dealer.  The applicant knew it was Coco, although he was then dressed as a man.

3. She says their eyes met as he was running away and she realised that he knew that she had recognised him.  Thereafter, the applicant was contacted by the politician who asked to see her after work.  She made an arrangement to meet him in a shopping centre but did not attend because she feared for her life.  She stated that she had not worked since May 2002 and had been in hiding preparatory to an opportunity to leave the country which she eventually did when she came to Australia in August 2003.  The applicant believed that if she returned to Thailand she would be harmed by the politician or by Coco and that she would not obtain effective state protection because of the influence of the politician.

4. When the applicant appeared before the Tribunal a number of inconsistencies between the story which I have just adumbrated and the one that she then gave appeared, for example, she had nominated one address in Bangkok as her address from 2000 to 2003 but before the Tribunal she stated she had lived at separate addresses.  Her claims concerning her employment were somewhat different. Most importantly, although the applicant claimed to have been a witness to a murder, this murder was no longer said to have taken place in a nightclub but took place in an apartment. Further, whereas previously the applicant had said that she saw Coco shoot the drug dealer, at the hearing before the Tribunal, she said she was in another apartment when the shooting occurred and all she saw was Coco leaving the apartment in which the man was claimed to have been shot.

5. The Tribunal put to the applicant the inconsistencies between her two stories and told her that it was having difficulty accepting her claims.  The applicant made some attempt as seen in [CB 81] to explain away these inconsistencies and asked the Tribunal whether she could make some further claims.  The Tribunal noted that it had not received any further claims before it had made its decision which it did some weeks after the interview.

6. In the Tribunal's findings and reasons which are set out at [CB 82] it says:

   “The applicant's years and places of employment were contradictory at hearing and also with her application for a protection visa.  At hearing the applicant claimed that she was employed in a shop which exported orchids, the name of which she does not remember, from 1999 for four years and she was also employed in a bakery for two years from 2001 to 2002.  At hearing she also claims that after the murder which took place in 1999 she went to the country and did not work any more.  This also contradicts with her past employment details provided in her application for a protection visa in which she claims she worked in sales in Gems collection from 1997 to 2002.

   The applicant's address details prior to leaving Thailand were contradictory at hearing to those given in her application for a protection visa.  In her application for a protection visa, the applicant claims that she lived at the same address in Bangkok from 2000 to 2003; however, at hearing she claims she shifted address many times since 1999.”

7. The Tribunal also noted that the applicant's claims regarding the murder were completely different in her original application and in her statement to the Tribunal but noted that in one the shooting took place in a nightclub and in the other in an apartment.  In one she had witnessed the shooting and in the other she had not.  Because of these inconsistencies the Tribunal came to the conclusion that:

   “It did not find any of the applicant's claims to be credible and does not accept that she has suffered any form of past persecution in Thailand.  The Tribunal places no weight on any of the applicant's claims of past persecution.  Furthermore, the Tribunal is not satisfied that the applicant has ever been involved in or witnessed any activity in Thailand which would draw her to the attention of any potential persecutor.”

8. In her amended application to this court the applicant makes a number of claims of jurisdictional error.  Her first claim is that the finding that the applicant was not a target of a political revenge attack was not a finding that the Tribunal could reasonably have reached.  In the same section of the applicant's claims she also says that the finding that there was no persecution by persons in Thailand was a finding that the Tribunal could not reasonably have reached.  It is now fairly clear from the authorities that this allegation is essentially one of "Wednesbury unreasonableness". It can only be taken into account in matters of this nature where the unreasonableness goes to the exercise of the Tribunal's discretion (Minister for Immigration v Eshetu (1999) 162 ALR 577 at [145]; Minister for Immigration; Ex parte Applicant S106 v Minister for Immigration (2003) 198 ALR 59 at [34]; Applicants S276 of 2002 v Minister for Immigration [2004] FCA 330 at [32]). In this case it is really an argument as to the facts - a claim for impermissible merits review (see Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259).

9. The second claim made by the applicant is that the Tribunal had ignored relevant considerations in making its decision.  These are said to be firstly, that the Tribunal had not taken or adequately taken into consideration the applicant's claim that she was still sought out by persons wishing to do her harm for her knowledge of an incident involving a corrupt politician. This is the very matter that was considered by the Tribunal.  For the reasons that the Tribunal gave it did not accept that the incident ever took place. That is a matter entirely for the Tribunal being a decision as to the credibility of the applicant (see SZAKF v Minister for Immigration [2004] FCA 1719 as per Hely J at [26]; Ex parte Durairajasingham (2000) 168 ALR 407 as per McHugh J at [67]). The second matter is that the Tribunal had not taken into consideration the applicant's claim that she was a witness. This is essentially the same as the first matter and is an attack on the Tribunal's merits finding. The third matter raised by the applicant under this heading was that the Tribunal had not taken or adequately taken into consideration the fact that there may have been memory failure in recalling specific details because of trauma or persecution surrounding the events of the past. Interestingly, the Tribunal does not include the usual boilerplate paragraph relating to the way in which it should consider evidence given by protection visa applicants, but as Ms Wong says in her helpful written submissions there is no evidence before us that the applicant ever suggested to the Tribunal that one of the reasons for the inconsistencies between her two stories was memory failure arising out of trauma. It is difficult to ask the Tribunal to take something into account when that something is nowhere suggested by an applicant to be a relevant matter.

10. The fourth matter raised under paragraph 7 of the application is that the Tribunal had not taken or adequately taken into consideration that persons involved in the translation of the original application form may have misinterpreted and mistranslated material.  Once again this is an entirely new suggestion that was not put to the Tribunal at the hearing even though the Tribunal had raised the very question of inconsistencies with the applicant.  Before me today the applicant referred to the mistranslation relating to the nightclub.  I am no expert in Thai but it does seem to me that it would be difficult to mistranslate the story of a murder in an apartment block so that it becomes the story of a murder in a nightclub in a particular district of Bangkok.

11. In section 8 of the amended application the applicant says there was a constructive failure by the Tribunal to exercise jurisdiction and repeats the particulars contained in the first two sections (6 and 7) with which I have already dealt.  I do not think there is any necessity for me to deal further with those matters.

12. In section 9 of the amended application the applicant states that the Tribunal has denied the applicant natural justice or procedural fairness. It claimed that the Tribunal made the decision without allowing the applicant an opportunity to address adverse allegations made against her by the Tribunal. In this regard I am not clear as to exactly what the adverse allegations are. It seems to me that the applicant has confused conclusions of the Tribunal, which it is not obliged to discuss with an applicant, with an adverse comment arising out of her evidence which it may be obliged to discuss with her and which in this case it did (see Ex parte S154/2002 (2003) 201 ALR 437 at [48] and [54]; Applicant M189 of 2002 v Minister for Immigration [2004] FCAFC 131).

13. But there is a more important issue here which is taken up by Ms Wong in her written submissions and that is the possibility that the Tribunal fell into jurisdictional error in the manner discussed in cases such as SZEEU v Minister for Immigration [2006] FCAFC 2 by not sending the applicant a s.424A letter advising her of matters which might be the reason or part of the reason for affirming the decision under review. In this case the letter would be expected to refer to the inconsistencies between the original statement and the story given by the applicant to the Tribunal. Because these matters have been the subject of very many cases in both this court and the Federal Court I will merely say that the law now appears to be that a jurisdictional error will have occurred unless it can be argued that the information concerned is information given by the applicant to the Tribunal for the purposes of the Tribunal hearing and thus falls within the exception found in s.424A(3)(b) of the Migration Act 1958 (the “Act”).

14. Ms Wong refers for this aspect of the matter to M55v Minister for Immigration [2005] FCR 131 but she would have found more assistance from SZGGT v Minister for Immigration [2006] FCA 435, a recent decision of his Honour Rares J in which these matters are discussed in some considerable detail, as one would expect from his Honour. It is to be remembered that in this case the applicant, in her application to the Tribunal at section D wrote:

    “I would be very happy for the Tribunal to have a closer look at my DIMIA file and help with my refugee case.  I believe that if I am forced back to Thailand that great danger awaits me.  Would you please help me?

    Thank you.”  [CB 63]

    After referring at [43] to M55 Rares J says at [44]:

    “Attention needs to be paid in each case to what section 424A(3)(b) identifies as the information ‘that the applicant gave for the purpose’ of the application for review. Of course, there will be cases where the applicant puts forward everything in the departmental file provided originally by him or her to the delegate. But such a result flows from the facts of the individual case.”

15. In SZGGT Rares J actually found that the matters which the Tribunal had considered to be inconsistent were not put by the applicant to the Tribunal although some other matters were. It seems to me in this case that the wording of the applicant that I have extracted indicates that the applicant was putting the entire file before the Tribunal and that included her statement. I would thus accept the argument run by Ms Wong that s.424A(3)(b) comes into play in relation to this particular matter and the applicant cannot claim the benefit of an SZEEU jurisdictional error. It is also generally accepted now that s.422B of the Act excludes other forms of lack of procedural fairness at the Tribunal hearing but there can be no suggestion that the Tribunal in this case did not fairly put to the applicant the problems of the inconsistencies in any event.

16. Another claim made under s.9 of the amended application relating to lack of procedural fairness and denial of natural justice was that after agreeing to allow the applicant to produce further documentary or oral evidence the Tribunal made the decision without giving the applicant a reasonable time in which to do so. It is correct that there was no agreement between the Tribunal and the applicant as to how long the applicant would have to produce this information but it is also true that the decision was not handed down for nearly two months after the hearing and had the applicant produced any relevant information during that time the Tribunal would have been bound to take it into account. There is no evidence before me of any such information and the applicant has had since 2004 to bring such information to the attention of the court.

17. The applicant alleges bias but in her particulars of this allegation she makes reference to the two matters which I have just discussed and adds a third, namely the 24 hour period that it took the delegate to make his decision.  I do not propose to discuss the first two matters again as I have made it clear that there was no jurisdictional error and I am also satisfied that the Tribunal provided procedural fairness to the applicant by raising with her those inconsistencies which it later found to be the reason why it did not believe her story.  In regard to the complaint about the speed with which the delegate dealt with her application I accept Ms Wong's submission that this is an irrelevancy because the Tribunal was tasked with making its own decision about the applicant's claims and it did so.

18. Finally, the applicant repeats her claims regarding the time for delivery of further information.  I would repeat my views on that matter which were expressed in relation to the claim of lack of procedural fairness.

19. For all these reasons I am unable to find that the Tribunal made a jurisdictional error in the manner in which it came to its decision in this case. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $5,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: