SZDYI v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1507

FEDERAL COURT OF AUSTRALIA

SZDYI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1507

MIGRATION – absence of reference to relevant fact in findings – whether jurisdictional error

Migration Act 1958 (Cth)

SZDYI v Minister for Immigration & Anor [2005] FMCA 971 affirmed
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited
Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 cited

SZDYI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1325 OF 2005

GYLES J

26 OCTOBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1325 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDYI
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

26 OCTOBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1The appeal be dismissed. 

2The appellant pay the costs of the respondents.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1325 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDYI
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	GYLES J
DATE:	26 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals against a decision of Smith FM (SZDYI v Minister for Immigration & Anor [2005] FMCA 971) dismissing an application seeking judicial review of a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal’s decision affirmed the decision of a delegate of the first respondent not to grant a protection visa to the appellant pursuant to the Migration Act 1958 (Cth) (the Act). Counsel for the first respondent summarised the proceedings before the Tribunal, in my opinion appropriately for present purposes, as follows.

   TRIBUNAL

2. The appellant is a national of Cambodia.  She claimed to fear persecution in Cambodia arising from her husband’s political activities as a member of the FUNCINPEC party.  In particular, she claimed that her husband had acted as a spy for FUNCINPEC and that, as a result, his political opponents sought to harm the appellant’s family.  The appellant claimed that this vendetta led to the disappearance of one of her daughters, the death of her son, and injury to another daughter.  A detailed summary of the evidence before the Tribunal, and how that evidence evolved, is included in the Tribunal’s decision.

3. The Tribunal expressed serious concern over the appellant’s credibility because, at times, her oral evidence about key issues did not make sense and was implausible.  The Tribunal’s concern in relation to the appellant’s credibility was also based upon substantial changes to the claims she advanced.

4. The Tribunal accepted that the appellant’s husband had been a member of FUNCINPEC and was assaulted in 1993 as a result of his political activities.  However, the Tribunal did not accept that the appellant’s husband had acted as a spy for the party or that his family had been targeted for revenge by his political opponents.

5. In the alternative, the Tribunal assessed the appellant’s case on the assumption that her husband had acted as a spy, as she claimed.  Even on this assumption, the Tribunal was not satisfied that there was a real chance that the appellant would be persecuted.  The Tribunal noted that the appellant had not been harmed in 1997 following her husband’s departure from Cambodia and that this was at a time of tension between FUNCINPEC and its political opponents.  The Tribunal also referred to country information which showed that, since that time, FUNCINPEC had become a coalition partner in the Cambodian government and that ordinary members of the party were not at risk of persecution.

6. The Tribunal accepted that one of the appellant’s daughters had disappeared, or lost contact with the family, that her son had been killed, and that another daughter had broken her wrist when she was run off the road.  The Tribunal was not satisfied that these incidents occurred as a result of the political activities of the appellant’s husband.  The Tribunal noted that these incidents occurred long after the appellant’s husband had left Cambodia and referred to the lack of information connecting these incidents to his political activities.

   FEDERAL MAGISTRATES COURT

7. The first ground of review advanced on behalf of the appellant was as follows:

   ‘The Tribunal ignored or failed to take into account the significance of the fact that the applicant obtained a false passport in order to leave Cambodia, giving rise to jurisdictional error.’

8. That ground was based upon the absence of specific reference to the appellant’s use of a false passport in the section of the Tribunal’s decision under the heading ‘Findings and Reasons’.  In circumstances where a consideration of this issue was apparent from the Tribunal’s summary of the questions asked of the appellant during the hearing as outlined in the ‘Claims and Evidence’ portion of the reasons, Smith FM was not prepared to infer that the Tribunal had failed to take into account the appellant’s evidence concerning the false passport.  Further, the learned Federal Magistrate held that this discrete part of the appellant’s evidence was not a relevant consideration going to jurisdiction.  Other grounds were also argued which it is unnecessary to recite.

   APPEAL

9. The appeal to this Court is limited to a ground that the Federal Magistrates Court erred in rejecting the first contention before that Court relating to the false passport.  The other grounds in the notice of appeal were not pressed. 

10. In order to deal with the arguments presented on appeal it is necessary to go in a little more detail to the circumstance and the reasons of the Tribunal.  In her initial visa application, the appellant said that her travel document was not valid for return to her home country because it was in a false name and had already expired.  The appellant had used the family name ‘Sung’ and the given name ‘Somalay’ in relation to her passport and entry to Australia rather than her real name. 

11. The supplementary material provided to the Tribunal included the following:

    ‘Date of arrival in Australia:  The Applicant arrived in Australia on 8 April 1998 on a false passport.

    Methods of leaving Cambodia:

    The reasons the Applicant had use an assumed name:

    ·The applicant initially engaged a “go-between person” to obtain a Cambodian passport under her real name, but she was advised that the application had been unsuccessful as her name had been recorded by the Cambodian Department of Foreign Affairs.

    ·The “go-between person” met on several occasions in different restaurants in accordance with his instructions.  When the first attempt to get the passport was unsuccessfully, the “go-between person” destroyed all the application and any relevant document associated with it as he was scared of being jailed.

    ·The applicant felt that the refusal to issue her a passport by the Cambodian authority was owing to her husband could not be tracked by the authority as he had left Cambodia in 1997.

    The “go-between person” suggested the applicant would have to change identity.  The applicant sold her house to pay the “go-between person” in the amount of $9800 US.’

12. The appellant’s husband had filled in answers to standard questions in his visa application to indicate that he left legally and that he did not have difficulties in obtaining a travel document in his home country.

13. In the Tribunal’s reasons under the heading ‘Claims and Evidence’ the following appeared:

    ‘According to information provided in her protection visa application, completed with the assistance of a registered migration agent, the Applicant, is a married woman from Kampong Cham province.  She lived at the one address in Phnom Penh from 1988 until she came to Australia in April 1998.  She was a self employed street seller.  The Applicant has three daughters in Cambodia. The Applicant claimed that her real name is [SZDYI] born 19 August 1949 but she travelled on a passport in the name of Somalay SONG, born 1956.

    The Applicant left Cambodia because it became unsafe for her, especially after her husband fled to Australia in 1998 (sic).  His enemies threatened to kill her and take revenge on her if her husband did not return.  She claimed that her husband was tortured for political reasons and as a result, he is now almost deaf.  She couldn’t leave with him so when she became afraid of her persecutors she got a passport in a false name and fled to Australia.

    …

    Just before this Applicant’s Tribunal hearing, a folder of material was submitted by her current adviser.  It was now claimed that the remaining two daughters move between their aunt’s home and their mother’s home, that the Applicant engaged an agent to get her a passport but was told that the application was unsuccessful because her name had been recorded by the Cambodian Foreign Affairs Department (the Applicant thinks this is because her husband could not be “tracked by the authority” as he had left Cambodia in 1997), that the Applicant sold her Phnom Penh home to pay the agent in Cambodia, and that she didn’t lodge a protection visa application soon after arriving here as she was told that she’d be detained for arriving on a false passport and because she has “never been aware of her legal recourse” until she was detained in Villawood in September 2003 and spoke to other Cambodians.

    …

    The Tribunal asked the Applicant about her application for a passport; she replied that she was told by the person helping her that it had been refused because she was being looked for by the authorities and even if she got a passport she would not have been allowed to leave the airport.  Asked why the authorities were looking for her the Applicant claimed that even though she was not in FUNCINPEC “they” wanted her husband.  The Tribunal noted that the Government does not generally restrict international travel and even the ban on international travel by FUNCINPEC leaders imposed in September 1998 was soon lifted (“Cambodia” United States Department of State Country Reports on Human Rights Practices for 1998 26 February 1999 section 2d).  The Tribunal also noted that the Applicant’s husband travelled on his own passport which he got without difficulty and he left Cambodia legally.  The Applicant replied that he paid for his passport.  The Tribunal noted that payment for passport issue was usual but he had no problem and left legally.  The Applicant said that she didn’t know about legal matters and when she wanted to leave she was scared.’

14. In the ‘Findings and Reasons’ of the Tribunal, the following paragraph occurs:

    ‘Although the Applicant has no documentation in the [SZDYI] identity, for the present purpose the Tribunal accepts that she is [SZDYI] born in Cambodia on 19 August 1949 and that she is a citizen of Cambodia as consistently claimed.’

15. The only other reference to passports in the ‘Findings and Reasons’ was later when the Tribunal referred to the husband’s claim that he had obtained a passport without difficulty and had left Cambodia legally. 

16. The solicitor for the appellant relies upon the fact that the Tribunal accepted that a passport in a false name was utilised by the appellant to leave Cambodia and enter Australia but said nothing more about it.  It is submitted that either the Tribunal gave no consideration to a relevant factor or, if it had given consideration to it and given it no weight, then the Tribunal failed to give any reasons for coming to that conclusion contrary to the requirement in s 430 of the Act.  The latter alternative does not seem to have been put in those terms to the learned Federal Magistrate.  However, I am satisfied that it is a variation on the theme which ought to be permitted.  The passport issue was squarely raised before the learned Federal Magistrate and in the Notice of Appeal.

17. Counsel for the first respondent submits that Smith FM was entitled to reject the argument that the Tribunal had failed to consider the factual significance of the appellant leaving Cambodia under a false passport, citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69] and [75] (Yusuf) and Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]. It was further submitted that Smith FM was correct in his opinion that, in any event, the issue was not a ‘relevant consideration’ going to jurisdiction in the manner referred to in Yusuf.  It was also submitted on behalf of the first respondent that, whatever view be taken as to the earlier submissions, the manner in which the Tribunal actually disposed of the matter plainly indicated that there could be no jurisdictional error in relation to the way in which the appellant’s passport claim was treated as the Tribunal had found that the passage of time and events between the departure of the appellant from Cambodia and the date of the Tribunal’s decision meant that there could be no reasonably based fear of persecution on return to Cambodia.  It was submitted that the argument based upon deficiency of reasons relying upon s 430 of the Act was bound to fail as it depended upon the minority view of Kirby J in Yusuf compared with the view of the majority. 

    DECISION

18. The absence of reference to the appellant’s use of the false passport to leave Cambodia and enter Australia in the reasons of the Tribunal is surprising.  It is consistent with the appellant having had a fear of the authorities in Cambodia at the time of departure.  That is a factor which is clearly enough supportive of her case, although, of course, it does not establish the case in itself.  Concern about this omission is understandable.  One view is that the Tribunal did not fail to consider the fact, it simply took the view that it was of little weight compared with the other factors that tended against the appellant’s claim.  That is the view favoured by Smith FM based upon the authorities to which he referred.  It is debateable.

19. However, even if this were wrong, in my opinion, failure to have regard to the fact would not indicate jurisdictional error in the circumstances of this case.  It was not an issue in itself; rather, it was a fact relevant to determining an issue.  Most importantly, in my opinion, counsel for the first respondent was correct in submitting that the ultimate finding of the Tribunal that there was no threat of persecution on return to Cambodia by the time of the decision, even on the assumptions most favourable to the appellant, establishes that the error, if it was an error, does not go to jurisdiction.  I agree that the point based upon deficiency of reasons should be rejected on the basis advanced by counsel for the first respondent.

20. Thus, despite the valiant efforts of the solicitor for the appellant, the appeal must fail.  The appeal is dismissed.  The appellant is to pay the costs of the respondents.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             26 October 2005

Solicitor for the Appellant:	Mr S Ek of Eric Hong & Associates Lawyers
Counsel for the First Respondent:	D Jordan
Solicitor for the First Respondent:	Blake Dawson Waldron
Solicitor for the Second Respondent submitting:	Blake Dawson Waldron
Date of Hearing:	20 October 2005
Date of Judgment:	26 October 2005