SZDUX v Minister for Immigration
[2005] FMCA 575
•11 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDUX v MINISTER FOR IMMIGRATION | [2005] FMCA 575 |
| MIGRATION – Review of Refugee Review Tribunal decision – citizen of Malaysia – Indian ethnicity – Tribunal’s reliance on applicant’s oral testimony rather than his statutory declarations – weight to be given to evidence – illogicality and Wednesbury unreasonableness – opportunity to comment on adverse information – Tribunal’s reasons – duty to inquire – real dispute with findings of fact – no reviewable legal error – privative clause decision – application dismissed with costs. |
| Migration Act 1958 (Cth), ss.422B, 424(1), 424A, 430(1)(c), 430(1)(d) |
| Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 Minister for Aboriginal Affairs vPeko-Wallsend Ltd (1986) 162 CLR 24 |
| Applicant: | SZDUX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 1791 of 2004 |
| Judgment of: | Mowbray FM |
| Hearing date: | 11 April 2005 |
| Delivered at: | Sydney |
| Delivered on: | 11 April 2005 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Mr G Johnson |
| Solicitors for the Respondent: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
The applicant pay the respondent’s costs and disbursements of and incidental to the application fixed in the sum of $5,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1791 of 2004
| SZDUX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript. It relates to a decision of the Refugee Review Tribunal (the Tribunal) which was made on 13 May 2004 and handed down on 3 June 2004.
The applicant is a citizen of Malaysia who arrived in Australia on 7 December 2003. On 20 January 2004 he applied for a protection visa which was refused by a delegate of the Minister on 21 January 2004. On 11 February 2004 the applicant lodged a review application with the Tribunal. He provided a supporting statutory declaration on
17 March 2004. He attended a hearing of the Tribunal on 20 April 2004, prior to which he provided further submissions including reports from a number of independent agencies.
Claims before the Department and the Tribunal
The applicant’s claims before the delegate and the Tribunal are summarised in paragraph 12 of the respondent’s submissions:
The applicant’s claims included that: his father was a member of the (pro-Mahatir) Malaysian Indian Congress Party (“MICP”); on 14 January 2001, members of the (opposition; pro-Anwar) Pan-Malaysian Islamic Party (“PAS”); there were clashes between the two groups or between Malays and Indians in area where they lived and PAS members attacked their home; complaint to the police produced no action against the attackers; the applicant and his father encountered difficulties with the police including being charged, sentenced (gaol) for creating a “religious problem” and ill-treated; they moved (to a place near Kuala Lumpur); in November 2002, a factory where the applicant worked as a security guard was attacked and resultant harm included the owner being killed; the applicant was then under threat as an actual or prospective witness; he moved to Singapore with the help of his company and was even there pursued / threatened. There were other matters put and the claims were not always consistent throughout what the applicant advanced. The Tribunal summarised all of the claims and the evidence at CB120-125 and proceeded, from CB125, to set out its findings and reasons.
Tribunal consideration
The important elements in the Tribunal’s consideration and decision are set out in the respondent’s submissions:
13.The Tribunal found the applicant’s original written claims to be inconsistent with his latest statutory declaration and oral evidence. The Tribunal found the applicant’s oral evidence more reliable, as it was able to clarify points and put flaws in the applicant’s argument to him for comment (CB125.4). Further, with respect to the statutory declaration, the Tribunal found it the least reliable source of evidence, as it was written after the primary decision, appeared to be a deliberate attempt to introduce a Convention nexus by assigning political motives to assailants involved in what was originally presented as a criminal act and arguments put forward in the statutory declaration were not sustained at the hearing (CB125.6).
14.The Tribunal accepted there may have been racial, religious or even political (often intertwined) tensions between the minority Indian community and the majority Malays. It also accepted that there was an incident in January 2001, on the occasion of a Hindu festival, and that the applicant and his father were then questioned by the police, but it rejected a claim that the applicant was ever formally charged, sentenced and imprisoned (CB125.8) – noting that the applicant could not have passed the subsequent checks necessary to become employed as a security guard if that claim had been correct and that the claim was not sustained at the hearing (although the applicant said that he had been detained while the police were making the inquiries).
15.The Tribunal accepted that the applicant’s family had moved away to a town on the outskirts of Kuala Lumpur and that his father had no further political problems after making the move. It also noted the applicant made no claims of involvement in any political parties or movements after that move (CB126.1).
16The Tribunal rejected a number of claims not pressed at the hearing that PAS activists had been searching for him and threatening him (according to the statutory declaration, in retribution for the internment of nine of their comrades following the 2001 incident) and that the persons responsible for the incident at the Kuala Lumpur factory in 2002 were PAS activists (CB126.2-126.4).
17.The Tribunal noted that, at the hearing, the applicant stated that the assailants were members of the KMM (a militant Islamic group proscribed in Malaysia), (CB126.5). The Tribunal said that the applicant did not explain how he knew this and rejected a claim by the applicant that people telephoning him had identified themselves as KMM, as the Tribunal found it implausible that they would do so in view of the draconian treatment which any KMM associate may receive in Malaysia (CB126.7).
18.The Tribunal then dealt with claims by the applicant at the hearing that he was threatened because he was a witness in a Court case and gave multiple reasons for rejecting that claim, namely that: the applicant did not report the threat to the police; he claimed to have immediately left Malaysia on a date that the Tribunal found to be impossible, given that his Singaporean documentation showed that both he and his passport were in Singapore that day; the fact that he had a Singaporean work permit for which he had applied in October 2000 and the implausibility of the applicant’s claim that it had been lodged by a friend in his absence (given the strictness of procedure in Singapore); the implausibility of the sponsoring company, which the applicant had worked for in Malaysia and which he said (and the Tribunal accepted) helped him to obtain employment in Singapore, assisting the applicant to avoid his duty as a witness if discharging that duty would assist in bringing to justice person/s responsible for the death of the company’s owner (CB126.8-127.3).
19.The Tribunal then made findings establishing two alternative bases for its decision, each independent of the above findings as to the applicant’s claim that he faced harm as a (prospective) witness.
20.First, the Tribunal was satisfied that the Malaysian authorities would provide effective protection, to protect the applicant as a prosecution witness, if they were informed of any threat made to a witness (CB127.5).
21.Additionally, the Tribunal found that, in any case, threats from persons whom one may incriminate as a witness would not, without more, amount to persecution for a Convention reason (CB127.6).
22.The Tribunal totally rejected claims by the applicant to the effect that persons had turned up in Singapore to threaten him (CB127.7-127.9).
23.Ultimately the Tribunal found the applicant’s testimony to be unsatisfactory, referring to discrepancies between his written and oral accounts, unsatisfactory explanations when questioned, the implausibility of parts of his claims and the contradiction of parts of his claims by independent evidence including his own passport and Singaporean work permit, both of which the Tribunal accepted as reliable (CB128.1).
24.For those reasons, the Tribunal was not satisfied that any harm the applicant had suffered in the past amounted to persecution for a Convention reason, or that there was any more than a remote chance that the applicant would so suffer upon return to Malaysia (CB128.2).
Consideration
The applicant filed his original application in the Court on 10 June 2004. He followed this up with an amended application on 19 October 2004. He filed a further amended application on 24 March 2005.
I asked the applicant at the hearing whether the amended application of 24 March 2005 superseded the earlier two applications. He said that it did and asked me to consider his application on the basis of the four grounds set out in this second amended application. He also indicated that he wished the Court to consider an affidavit attached to the original application as well as his outline of submissions filed on 24 March 2005.
First ground
Ground one in the applicant’s further amended application asserts:
(1) The Tribunal made a serious Jurisdictional Error by making the following conclusion contrary to facts and all the information constructively available on file thus refuting the credibility of the applicant openly
The particulars refer to the finding of the Tribunal that the oral testimony of the applicant was more reliable than that contained in the statutory declaration of 17 March 2004. As Mr Johnson put to the Court, it seems that the applicant’s main concern was that the Tribunal rejected this second statutory declaration.
The applicant commented in the amended application:
The Tribunal has made a grave error and misconception about the reasons adduced by the applicant in his original Statutory Declaration and factually enlarged by his second Statutory Declaration which statements were refuted by the Tribunal point-blankly as unreliable. This is a serious credibility doubt formed on the evidence submitted by the applicant to the Tribunal and such a harsh yardstick of rejection of the applicant’s written testimony by the tribunal is procedurally unfair and amounts to a jurisdictional error committed by the Tribunal.
At Court Book page 125 the Tribunal gave reasons why it relied on the applicant’s oral testimony in preference to his latest statutory declaration. It said that the original written testimony was inconsistent with the latest statutory declaration and with his oral testimony. It found the oral testimony more reliable as the applicant was on oath and the Tribunal was able to clarify points and put to the applicant flaws in his argument for comment.
In asserting that the latest statutory declaration was the least reliable source of evidence, the Tribunal noted that it was written after the delegate’s primary decision. It formed the view that it appeared to be a deliberate attempt to introduce a Convention nexus by assigning political motives to the assailants “in what was originally presented as a criminal act”.
The Tribunal also noted that the applicant had put forward arguments in his statutory declaration that he did not pursue at the hearing. For example, he referred to PAS activists who had been searching for him and threatening him since the incident in January 2001. This issue was not pressed at the hearing.
Furthermore the applicant had claimed in his statutory declaration that the persons responsible for the factory incident in November 2002 were PAS activists. At the hearing he stated they were members of the KMM (a militant Islamic group proscribed in Malaysia).
As Mr Johnson noted the weight given to various aspects of the evidence is entirely a matter for the Tribunal (Minister for Aboriginal Affairs vPeko-Wallsend Ltd (1986) 162 CLR 24). Furthermore in Re theMinister for Immigration & Multicultural Affairs; Ex parteDurairajasingham (2000) 168 ALR 407 McHugh J made clear that findings on credibility were a function of the decision maker par excellence.
The first ground must be rejected. There is no basis on which the Tribunal’s preference for the oral evidence over the written evidence in this particular matter can be seen as procedurally unfair or that it could amount to a form of jurisdictional error.
Second ground
Ground two states:
The Tribunal was Wednesbury Unreasonable in holding that the applicant was not able to provide certain information, thus holding against him:
The basis for this claim is in the last paragraph at Court Book page 125 where the Tribunal accepted that there may have been racial, religious and even political tensions between the Indian community and the majority Malays. It also accepted that an incident occurred in
January 2001 and that the applicant and his father were questioned by the police in the wake of that incident. However, it rejected the applicant’s claim that he was formally charged, sentenced and imprisoned. The applicant said that this finding was “a highly unreasonable finding made by the Tribunal”.
The applicant also stated:
This was a harsh yardstick adopted by the Tribunal for critically rejecting outright a Statutory Declaration which was a part and parcel of the original 866 application that was considered by the Delegate. Hence this was a severe attack on the credibility of the applicant’s initial written testimony and therefore amounts to a jurisdictional error made by the Tribunal.
At Court Book page 125 the Tribunal provided its reasons for rejecting the claim that the applicant had been charged, sentenced and imprisoned:
It is implausible that he was so charged, as he subsequently was employed as a security guard, which indicates some sort of police and character checks – if not in Malaysia, then certainly in Singapore, where he was also accredited as a security guard. In any case, the applicant did not sustain this claim at hearing, but noted that he had been informally detained while the police were making their inquiries. He has no police record or charges against him.
As the respondent submitted this was a perfectly acceptable, reasonable and far from illogical basis for rejecting the applicant’s claim on this issue.
To some extent this ground is merely an attempt to further criticise the decision of the Tribunal to rely on the applicant’s oral testimony instead of his statutory declarations. I have already noted that this does not amount to jurisdictional error.
The particulars for this ground do not suggest that the Tribunal was illogical in its reasoning. They come nowhere near justifying a finding of Wednesbury unreasonableness (see Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223). The second ground must be rejected.
Third ground
Ground three states:
3. The Tribunal was ‘procedurally unfair’ and failed to comply with sec. 424A of the Migration Act, making a serious jurisdictional error…
The particulars refer to Court Book page 127:
The Tribunal has no [reason to] doubt that the Malaysian authorities would act properly to protect witnesses for the prosecution if they were informed of any threat made to any such witnesses. There is no reason to conclude that the applicant cannot access effective state protection in the particular situation in which he found himself.
The applicant relied on s.424A of the Migration Act 1958 (Cth) (the Act) which requires that certain information must be given to an applicant for comment if that information would be the reason or part of the reason for affirming the decision under review. However, information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member is excluded from this obligation.
There is no suggestion that in reaching this conclusion which is adverse to the applicant, the Tribunal was relying on any particular piece of information that was specific to him. Even if the Tribunal had general information about whether the Malaysian authorities would protect witnesses, it need not disclose it. Section 422B in this respect excludes any obligation to accord procedural fairness at common law.
To the extent that the applicant’s comments under this ground suggest that he is again complaining about the rejection of his statutory declarations, my earlier comments are applicable. As Mr Johnson has submitted the fact that the Tribunal rejected some of the evidence provided in the statutory declaration does not mean that it did not consider those statutory declarations. They obviously were and the Tribunal was entitled to reach conclusions as to the credibility of the claims within those statutory declarations.
For completeness I note Mr Johnson’s submission that the Tribunal reached the alternative and independent conclusion that threats from persons who might incriminate a witness would not without more evidence amount to persecution for a Convention reason. This would also provide an answer to the claims made by the applicant.
Fourth ground
Ground four provides that the Tribunal made further jurisdictional error by breaching ss.430(1)(c) and (d) of the Act in relation to the Tribunal’s conclusions set out in the first paragraph at Court Book page 128. These conclusions concern the generally unsatisfactory nature of the applicant’s testimony. There were unexplained discrepancies between his written and oral evidence. The Tribunal found parts of his testimony implausible and it noticed contradictions between significant parts of his testimony and his documentary evidence.
Section 430 of the Act places an obligation on the Tribunal to prepare a written statement outlining reasons for its decision. Subsections 430(1)(c) and (d) require the Tribunal to include in that statement findings on any material questions of fact and reference to the evidence or any other material on which the findings of fact were based.
It is hard to discern how the Tribunal’s conclusions on the unsatisfactory nature of the applicant’s evidence could amount to a breach of those provisions in s.430. The Tribunal’s written reasons for its decision do set out its findings on material questions of fact and refer to the relevant evidence.
It seems to me that what the applicant is really concerned about is that the Tribunal reached conclusions with which he was unhappy, having rejected some of his evidence, particularly from his statutory declarations. The Tribunal stated that some of this evidence was not pressed at the oral hearing. The applicant has not sought to adduce evidence in the form of a transcript of the hearing to suggest otherwise.
Hence I must also reject ground four in the amended application.
Other grounds
Mr Johnson has also referred me to the affidavit filed on 10 June 2004 which sets out a number of other grounds which he has described as “wide and unparticularised allegations”. I agree with him that in the form that they have been put to the Court, they do not provide a basis for a finding of jurisdictional error.
For completeness I refer to his submissions on paragraph 6(5) of that affidavit which asserts a failure to perform a duty imposed by s.424(1) of the Act. That subsection provides that in conducting a review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making its decision on the review.
The important points to note are firstly that I have not been directed to any information obtained by the Tribunal to which it has failed to have regard. Secondly this particular provision imposes no duty on the Tribunal to conduct inquiries.
As the respondent has said in its submissions at paragraph 34:
It is only if the Tribunal chooses – notwithstanding its lack of obligation – to exercise the power conferred the first sentence of section 424(1), that the duty imposed by the second sentence of that sub-section arises. Here, there is no evidence the Tribunal did exercise the said power and no question of breach can arise.
I agree with that submission.
Conclusions
I indicated to the applicant at the hearing that on my reading of his amended application of 24 March 2004 and the accompanying outline of submissions, he would be unlikely to succeed as it did not appear that any jurisdictional error could be established from that material.
I invited the applicant to put to me anything that might further assist me in identifying a legal error. He indicated he did not want to say anything more, apart from at one stage requesting an adjournment as he did not understand the law.
I said to him that I was not prepared to adjourn the matter, given that he had plenty of time to make submissions to this Court. Indeed the applicant has filed not only an application, but two amended applications and an outline of submissions. It was too late to seek a further adjournment at the hearing.
In these circumstances the applicant said he had nothing further to say.
It is apparent to me that the applicant’s real dispute is with the weight that the Tribunal gave to various pieces of evidence and with the findings of fact of the Tribunal. These are matters for the Tribunal and not matters with which, in the ordinary course of events, I could interfere.
The respondent’s counsel submitted that the application must be dismissed, as no reviewable legal error had been disclosed. I agree.
The findings made by the Tribunal were reasonably open to it on the material before it. I am not satisfied that it made any legal error going to jurisdiction in coming to its decision.
I find that the decision of the Tribunal is a privative clause decision, having regard to the authority of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. In addition, the decision of the Tribunal was a bona fide attempt to exercise its powers. It clearly related to the subject matter of the Act and related to the powers conferred on the Tribunal.
In the circumstances, the application must be dismissed.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Zhan Chiam
Date: 17 June 2005
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