SZDTZ v Minister for Immigration and Anor
[2006] FMCA 1709
•13 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDTZ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1709 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicant is a citizen of Lebanon claiming fear of persecution – credibility – illogicality – irrationality – unwarranted assumptions – failure to take account of relevant material – implausibility – no duty to make further inquiries – taking account of irrelevant material – whether Tribunal failed to ask itself the right question – no reviewable error. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424, 424A
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32 cited
WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 437 cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 followed.
SZEEO v Minister for Immigration [2005] FMCA 1177 referred to.
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 [2003] 198 ALR 59 referred to.
NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 followed.
S635/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1162 referred to.
VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 referred to.
NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52 referred to.
M153 of 2004 & Ors v Minister for Immigration [2006] FMCA 42 referred to.
Win v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 105 FCR 212 followed
Minister for immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 followed.
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2002 [2003] FACFC 73 followed.
Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 followed.
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (2003) ALR 112 referred to.
| Applicant: | SZDTZ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 1051 of 2006 |
| Delivered on: | 13 November 2006 |
| Delivered at: | Sydney |
| Hearing date: | 9 October 2006 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitor for the Applicant: | Ray Turner |
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The title of the First Respondent is changed to Minister for Immigration and Multicultural Affairs.
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1051 of 2006
| SZDTZ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal signed on 2nd March and handed down on 14th March 2006. The Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the Applicant.
In his amended application, filed in Court on 9th October 2006, the Applicant seeks a declaration that the decision of the Tribunal was made in error of jurisdiction and is therefore null and void. He also seeks orders setting the Tribunal decision aside and remitting his application for review to the Tribunal for rehearing according to law.
Background
The Applicant is a citizen of Lebanon who arrived in Australia on
27th November 2000. He applied for a Protection (Class XA) visa on 20th February 2001 but it was refused on 29th March 2001. He sought a review of that decision form the Refugee Review Tribunal, which affirmed the delegate’s decision on 5th December 2002.
The Applicant sought judicial review of the Tribunal’s decision and on 6th October 2005, in the Federal Magistrates Court at Sydney, Smith FM ordered that writs of certiorari and mandamus issue.
The application was then listed for hearing before the Tribunal on
8th December 2005. The hearing was subsequently postponed to
11th January 2005.
The Refugee Review Tribunal hearing
The Applicant instructed Mr Ray Turner, solicitor, to act for him and appointed Mr Turner as his authorised recipient for correspondence. The Applicant completed the Response to Hearing Information and indicated in it that he wanted to attend the hearing. He asked the Tribunal to take evidence by telephone from witnesses in Lebanon.
The Tribunal wrote to the Applicant, care of Mr Turner, on
7th December 2005. The letter was expressed in terms of s.424A of the Migration Act and set out that the Tribunal had information that would, subject to any comments the Applicant might make, be the reason or part of the reason for deciding that the Applicant was not entitled to a protection visa. The letter referred to aspects of the Applicant’s evidence at the previous Tribunal hearing and contrasting country information, amongst other matters.
Mr Turner replied on the Applicant’s behalf that same day.
He submitted further evidence about the situation in Lebanon, comprising:
a)A report from Amnesty International dated December 2004; and
b)Statements by a priest and by two members of parliament.
Mr Turner wrote again to the Tribunal on 21st December 2005, replying to the matters raised in the Tribunal’s s.424A letter of
7th December. On 10th January 2006, Mr Turner forwarded two further statements to the Tribunal. One was from a former member of the Red Cross in Lebanon and the other was from a doctor at the Becherri Public Hospital.
The Applicant attended the Tribunal hearing on 11th January 2006.
He gave evidence with the assistance of an interpreter in the Arabic language. He was accompanied by Mr Turner.
The following day, Mr Turner forwarded a submission to the Tribunal to deal with matters raised at the hearing. The Tribunal handed down its decision on 14th March 2006.
The Refugee Review Tribunal decision
A copy of the Refugee Review Tribunal decision record appears at pages 101 to 121 of the Court Book. The Findings and Reasons are to be found at pages 116 to 121.
Whilst the Tribunal was satisfied that the Applicant may have sustained a gunshot wound in Lebanon in 2000, it was not satisfied about “who was responsible for the shooting – or why”.[1] The Tribunal went on to find the Applicant’s claims and evidence to be implausible, contradictory, internally inconsistent and inconsistent with the independent evidence, saying:
In fact, given the range of inconsistencies between the applicant’s written claims and his hearing with the Tribunal; inconsistencies that arose at the hearing, and the inherent implausibility in his claims and evidence, the Tribunal cannot be satisfied that the applicant has been truthful in his claims and evidence, and cannot be satisfied that he has any claim to have a well founded fear of persecution for a Convention reason.[2]
[1] Court Book at 117
[2] Court Book at 117
The Tribunal set out various issues on which it found the Applicant’s evidence to be wanting. The Tribunal made findings about the Applicant’s lack of credibility, indeed “mendacity”[3] and reliability as a witness and was not satisfied that the Applicant had a real chance of being persecuted for a Convention reason by the Syrian authorities in Lebanon in the foreseeable future.
[3] Court Book at 121
Application for judicial review
The Applicant commenced proceedings for review on 7th April 2006, naming the Minister as First Respondent and the Refugee Review Tribunal as Second Respondent. He filed an amended application in court on the day of the hearing.
In his amended application, the Applicant relies on the following grounds:
i)The Tribunal’s decision was illogical, irrational and based on unwarranted assumptions.
ii)The Tribunal failed to take account of relevant material.
iii)The Tribunal took account of irrelevant material.
iv)The Tribunal failed to ask itself the right question.
The Applicant’s solicitor, Mr Turner, submitted first of all that the Tribunal’s decision was irrational, illogical and based on an unwarranted assumption because of the Tribunal’s rejection of the Applicant’s claim to have been threatened and shot in the head by Syrian agents because of his opposition to Syrian workers in Lebanon. The Applicant had submitted a number of items of evidence that referred at least to the probability that the shooting was carried out by Syrian agents.
The Tribunal had dismissed this claim in these words:
Whilst the Tribunal is satisfied that the applicant may have sustained a gun shot wound in Lebanon in 2000, it cannot be satisfied about who was responsible for the shooting – or why.[4]
[4] Court Book at 117
The Applicant submitted that the Tribunal appeared to have dismissed all of this evidence because the Applicant’s testimony was:
i)implausible;
ii)contradictory
iii)internally inconsistent; and
iv)inconsistent with the independent evidence.
The Applicant went on to submit that, based on the evidence before the Tribunal, there was no probative evidence to support the Tribunal’s assertion that the Applicant’s evidence was implausible. He submitted that there was nothing contradictory and/or internally inconsistent in the applicant’s evidence. Further, the Applicant submitted that there was no inconsistency between the independent information cited by the Tribunal and the Applicant’s evidence.
Thus, the Applicant submitted that the dismissal of the Applicant’s evidence on the above bases is illogical, irrational, and/or based on unwarranted assumptions which amount to jurisdictional errors, relying on Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; WAGO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 437.
The Applicant’s second ground is that the Tribunal failed to take account of relevant material. The Applicant submitted various items of documentary evidence in support of his claims. The Tribunal found, however:
The Tribunal has found the applicant to be lacking in credibility with regard to his residence, his employment and his activities with the labour organisation. The Tribunal has further found his claims are in direct contradiction to the independent evidence. The Tribunal has further found his claims are in direct contradiction to the independent evidence. The Tribunal has found the applicant to have been untruthful to the tribunal and gives no weight to his claims.
In light of the applicant’s lack of reliability as a witness, it cannot rely on the documents submitted by him.[5]
[5] Court Book at 120.
The Applicant submitted that the Tribunal’s finding as to the Applicant’s credibility was misconceived. Mr Turner, on behalf of the Applicant, went on to submit that the Applicant’s evidence in regard to his employment and activities with the labour organisation was accepted as true. What was not accepted was that those activities led to an adverse interest by Syrian agents. A difference of opinion in relation to the consequences of actions does not amount to a lack of credibility.
Mr Turner put to the Court that a failure to accept a belief is not adverse to the credibility of the Applicant. The Tribunal had accepted the fact that he was shot. Therefore, it is submitted that the Applicant’s claims were not[6] in direct contradiction to the relevant independent evidence.
[6] Emphasis added
The Applicant’s third ground is that the Tribunal took account of irrelevant material. In support of this ground, Mr Turner submitted that the Tribunal found that the Applicant lacked credibility, inter alia, because of inconsistencies between the Applicant’s evidence and the independent evidence cited by the Tribunal. That evidence included this item from the Internet, set out at page 114 of the Court Book:
Becharri (variously Basharri, Becharreh, Becharre, Bcharre, Bsharie) is an overwhelmingly Maronite Christian area and the birthplace of many members of the Lebanese Forces (LF) including imprisoned former leader Samir Gaegea. The electoral lists for 2000 show that in the Bashirri sub-division 40,229 of 41,970 registered voters were Maronites. Whilst there are other minority groups in Bashirri they are of a negligible proportion and no evidence could be found in the sources consulted of overt tension between these groups: Libanote.com. North Lebanon: Voters Info: - accessed - 28/11/02.
Mr Turner pointed out, rightly, that the document concerned only contained voter numbers. Thus, he submitted the Tribunal fell into jurisdictional error by taking irrelevant material into account.
The Applicant’s fourth ground is that the Tribunal failed to ask itself the right question. The particulars of that ground are that by rejecting the Applicant’s application because he could modify his behaviour if he returned to Lebanon, the Tribunal failed to consider the real question that it had to decide, being whether the Applicant had a well-founded fear of persecution.
The Tribunal’s finding was:
Finally, the Tribunal notes that the applicant is under no compulsion to be involved in the labour organisation – which he claims was the sole reason for the Syrian animosity towards him – when he returns to Lebanon.[7]
[7] Court Book at 119
Mr Turner put to the Court that there was no warrant for this conclusion and an applicant for protection is not required to modify his or her behaviour on return to his or her home country.
Conclusions
Ground 1 –Illogical, irrational and based on unwarranted assumptions.
To some extent, this ground appears to challenge the factual findings made by the Tribunal. It seems clear that the Tribunal considered the Applicant’s claims. It was a matter for the Tribunal whether or not the Applicant’s claims were “implausible”. A finding that a claim is implausible is essentially a finding as to whether the Applicant should be believed in his claim – a finding on credibility which is the function of the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]).
As to the complaint that the Tribunal’s decision was illogical or irrationality, I have previously held[8] that while some members of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S20/2002 [2003] 198 ALR 59 expressed some support for illogicality as a ground of review, the utility of illogicality is limited. In NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29] and [30] the Full Federal Court held there is nothing in the remarks of the High Court in S20 which would warrant a departure from the earlier line of decisions in the effect that illogical reasoning does not in itself constitute an error of law or jurisdictional error (followed by Moore J in S635/2002 v Minister for Immigration and Multicultural Affairs [2004] FCA 1162; see also VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286 at [16]-[19]; NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52; M153 of 2004 & Ors v Minister for Immigration [2006] FMCA 42).
[8] SZEOO v Minister for Immigration [2005] FMCA 1177 at [16]-[17]
Whether or not the decision was illogical or irrational, no jurisdictional error is demonstrated. I am unable to see that the Tribunal made any unwarranted assumption. The Applicant’s first ground of review fails.
Ground 2 – Failure to take account of relevant material.
The Applicant claims that the Tribunal dismissed the written evidence of the Applicant without taking any available steps to verify the documents. This is hardly a failure to take account of the evidence. The Tribunal not only referred to but quoted extensively from the Applicant’s post hearing submission[9] and compared the written claims with the Applicant’s evidence at the Tribunal.[10]
[9] See Court Book at 115 & 116
[10] See Court book at 117
There was no obligation on the Tribunal to take steps to verify the documents that the Applicant provided. There is clear authority that the Tribunal has no duty to make further inquiries about the Applicant’s documents (see Win v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 105 FCR 212 at [15], Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).
No jurisdictional error is shown and this ground of review fails.
Ground 3 – Taking account of irrelevant material.
The Applicant had submitted that the Tribunal found that the Applicant lacked credibility because of the inconsistencies between his evidence and the independent evidence of voter numbers in the Becharri area. As Mr Turner pointed out, evidence of voter numbers only shows the numbers of people eligible to vote. The information had been put to the Applicant in contradiction of his claim that Becharri was “overrun with foreign workers”[11].
[11] Court Book at 114
Quite clearly, the number of voters in the area has nothing to do with the Applicant’s claim that the area was overrun with seasonal Syrian labourers during the fruit picking and ski seasons, because they would not be on the electoral roll as they would be ineligible to vote. This is an obvious factual error, but that will not assist the Applicant (Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [137]) because there is no error of law, let alone an error of law, in the Tribunal making a wrong finding of fact. The finding by the Tribunal is illogical, but want of logic does not constitute an error of law or jurisdictional error (see [31] and [32] above).
Whilst the Applicant may well be aggrieved by the Tribunal’s obvious error, it does not constitute a jurisdictional error. The Applicant’s third ground of review fails.
Ground 4 – Failure to ask the right question.
The Applicant contends that by rejecting the application because the Applicant could modify his behaviour if he returned to Lebanon, the Tribunal failed to consider the real question that it had to decided, whether the Applicant had a well-founded fear of persecution.
I am not satisfied that this is a case where the Tribunal did fail to ask the right question. The question of modifying one’s behaviour was considered by McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112 at [43]:
The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a Tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality.
This is not the case here. The Tribunal noted that the Applicant had not for the six years whilst he has been in Australia been involved in any activities critical of the Syrian presence in Lebanon or been involved in any activities advocating the departure of migrant Syrian labour from Lebanon[12], which suggested that he had no compelling or on-going interest in those activities. Consequently, the Tribunal formed the view that the Applicant would not become involved in those activities if he were to return to Lebanon.
[12] See Court Book at 119
In my view, the principal reason why the Tribunal rejected the Applicant’s claims was the strongly adverse view that it took of his credibility. The Tribunal referred to the Applicant’s “mendacity” on essential aspects of his claim and found that his claims of harm and threats of harm were “a fabrication”.[13]
[13] See Court Book at 121
Credibility findings are findings of fact and are the function of the primary decision maker (Durairajasingham (supra) at [67]).
The Applicant has not made out a jurisdictional error on the part of the Tribunal. The decision is a privative clause decision and is not, therefore, subject to certiorari or declaration in any court (Migration Act, s.474(1)).
The application will be dismissed with costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 21 November 2006
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