SZDZM v Minister for Immigration
[2005] FMCA 1517
•17 October 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDZM v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1517 |
| MIGRATION – Refugee – claims of persecution based on political opinion, religion and social group – adverse credibility findings – no reviewable error. |
| Migration Act 1958, ss.424A(1), 424A(3)(a), 422B, 65, 36(2) Evidence Act 1995, s.135 Federal Magistrates Court Rules 2001, r.21.02(2)(a) |
| Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 Wu Shang Liang (1996) 185 CLR 259 Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 |
| Applicant: | SZDZM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2207 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 10 October 2005 |
| Date of Last Submission: | 4 October 2005 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. D. Jordan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Refugee Review Tribunal be joined as the second respondent in these proceedings.
The application is dismissed.
The applicant is to pay the first respondent’s costs set in the amount of $4500, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2207 of 2004
| SZDZM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 14 July 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 10 June 2004 and handed down on 5 July 2004 to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent to these proceedings.
The applicant is a citizen of Jordan who arrived in Australia with a business visa on 4 March 2000, and lodged an application with the first respondent's Department for a protection visa on 17 December 2003. On 30 January 2004 a delegate of the respondent Minister refused to grant the protection visa, and on 20 February 2004 the applicant applied for review of that decision. The applicant’s claims to refugee status are found in his application to the Minister’s Department (Court Book (“CB”) 1 to CB 26), in his application for a protection visa (CB 38 to CB 41) and the record of the applicant’s oral presentation of his claims at the Tribunal hearing, which is reproduced in the Tribunal decision record under “Claims and Evidence” at CB 57.3 to CB 58.9. The applicant claimed to fear harm in Jordan because he joined an organisation referred to as a “Liberation” group (“Hizb-ut-Tahrir”) that was “political, religious and social”. He claimed that the objective of the group was to “serve the Jordanian people, to assist in better discipline and make the laws of the Holy Koran apply to all.” The applicant claimed to have been involved with the group for thirty to forty days in 1997 and to have distributed papers and booklets for the group, and also to have attended group meetings. He claimed that the group and its activities were prohibited by the Jordanian government and that he feared that if he returned to Jordan he would be harmed by the authorities as he claimed that he was “known” to them. He claimed that some of his friends were caught by the authorities and that family members had strongly advised him not to return.
The Tribunal had before it the applicant’s application for a protection visa and the application to the Tribunal. It conducted a hearing with the applicant on 8 June 2004. The Tribunal's “Findings and Reasons” in its decision record are reproduced at CB 59.8 to CB 61.2. The Tribunal's decision was based on its finding (CB 59.8) that the applicant, at the Tribunal hearing, was lacking in credibility. The Tribunal based this on:
1)Its finding that his major reason for coming to Australia was to set up a business venture and that when this failed his aim was to continue in Australia to pursue his business opportunities. This was based in part on the Tribunal’s finding that the applicant failed to apply for a protection visa for at least a year after an unsuccessful appeal against his business visa refusal in 2002.
2)The applicant’s evidence at the hearing that led the Tribunal to form the view that he had invented his involvement with the “Liberation” group to support his claim for residence in Australia (CB 60.2). The Tribunal found that at the hearing the applicant was “extremely ill informed” about the organisation and that his description of the organisation's aims, outlined in the pamphlets he claimed to have distributed, bore no relation to the stated aims of the organisation which were available to the Tribunal from independent information to which it referred. Its finding that his claim was an invention was also based on the Tribunal's finding that the applicant's explanation as to why he had delayed applying for a protection visa was not plausible in light of the applicant’s claim that Jordanian intelligence had searched his home and asked about him in August 2000.
The Tribunal considered whether there was a real chance that the applicant would be persecuted if he were to return to Jordan in the foreseeable future, and rejected his claims to fear persecution for reasons of his political opinion, real or imputed, as a supporter of the “Liberation” group. The Tribunal had found that he was never involved with this group, nor that he was ever sought by the authorities. In these circumstances, the Tribunal was not satisfied that there would be a real chance that the authorities would take an adverse interest in the applicant if he were to return to Jordan (CB 60.8).
The applicant's complaints in the amended application and in his original application for that matter, assert allegations of errors of fact which are based upon what the applicant says occurred during the hearing before the Tribunal.
The applicant’s original application, filed on 14 July 2004, contains the following grounds of review:
“1) The Refugee Review Tribunal erred in denying my fear of persecution by the group of people who ‘declared themselves belonging to liberation group in Jordan’”
This claim is particularised as:
“1)I explained to the member of the Refugee Review Tribunal what I know, what happened to me and what I felt in a very honest way and to the best of my recollection. The Tribunal should not find that I lack in credibility. I said that I was involved in Hizb-ut Tahrir for 30-40 days in 1997 and this is true.
2) The presiding member rejected my claims that I was ever involved with Hizb-ut Tahrir or that I was ever sought by the authorities. Such decision is wrong and I ask the Court of Australia to return my application to the Tribunal and ask to adjust the error.
3)I have been honest and continue to be honest and the Tribunal relied on information which were not shown to me to comment on.”
The applicant filed an amended application on 6 December 2004. Three further grounds of complaint were raised:
“1)The Tribunal asked the applicant who founded the Hizb-ut Tahrir organization. The applicant says he responded with the correct name. If so, the Tribunal erred in stating that “he gave a name which did not appear to be that of the founder”. The applicant says the Tribunal fell into jurisdictional error on this basis.
2) The Tribunal asked the applicant for the name of a book written by Qadim Zallume, and then made an adverse finding against the applicant because he could not answer the question. According to the information before the Tribunal, the book was called “This is how Khilafa was destroyed”: CB 59.4. The applicant says this book was not written by Qadim Zallume, but that he was merely one of about 10 contributing authors. In these circumstances, the Tribunal fell into jurisdictional error.
3)The Tribunal asked the applicant a question about his business visa and then, after the applicant gave an answer, stated that this issue was not relevant. The applicant says the Tribunal fell into jurisdictional error in conducting itself this way.”
The applicant appeared before me unrepresented. He was assisted by an interpreter in the Arabic language. The respondents were represented by Mr. Jordan. At the hearing the applicant stated that:
1) The Tribunal was mistaken to say that he was not genuine in his claims.
2)He did say that the founder of the “Liberation” group to which he said he belonged was “El Nabahani”. [At the hearing before it the Tribunal asked the applicant the name of the founder of the “Liberation” group].
3)After analysing the decision it can be inferred that the Tribunal member was not competent or did not have the “real qualifications” to decide his case.
4)Independent country information, reproduced at CB 63 to CB 83, was not put to the applicant, and he was not given an opportunity to look at this information prior to the hearing so that he would be able to “answer any question being directed to me”.
5)The Tribunal did not give him “any proof to convince” him that “she was right” or “to prove” that he was wrong.
6)That the founder of the “Liberation” group was “El Nabahani” and that his successor, Abdul Qadim Zallume, was the co-author of the book, but that the Tribunal asked the relevant question in the wrong way. [At the hearing before it the Tribunal asked the applicant the name of the current leader of the “Liberation” group and the name of the book he wrote].
I note that the correspondence folder in the Court’s file contained a seven page typed document marked as “corro” with the handwritten heading of “Transcript”. At the hearing before me the applicant sought to rely on this document and in particular what he described as “question number 17” (appearing at page 3 of this document). This document had not been provided to the respondent’s solicitors and I granted a short adjournment to enable Mr. Jordan to look at the document. On resumption, Mr. Jordan objected to the Transcript being admitted into evidence as, while at best, the document appeared to be what he described as a “shorthand transcript of a series of questions and answers”, that it was clear from the face of the document that it could not be relied upon as an accurate record of what was said during the Tribunal hearing, and that there was no evidence to support the position that this document was consistent with it being a record of the Tribunal hearing conducted in this case. There is nothing either on its face or otherwise to show that this document, whatever it may be, is a transcript of the hearing that the Tribunal conducted with the applicant on 8 June 2004. I note relevantly that the applicant did access the Court’s Legal Advice Scheme and consulted a lawyer on the panel of that scheme on 2 December 2004 and was provided with advice on 12 January 2005. He therefore would have had the opportunity to have received legal advice as to how to put evidence before the Court. I note that this document is dated as having been received by the Court’s registry on 24 January 2005. The document, if it purports to be a transcript of the hearing conducted with the Tribunal, is not provided to the Court in any proper evidentiary context, for example by way of affidavit. There is nothing to show what can be described as the provenance of the document, how or by whom it was created and in what circumstances. The applicant stated at the hearing before me that he translated the contents of the cassettes [presumably the tapes of the hearing before the Tribunal] into Arabic and a “friend who is good in English” assisted. In any event the document, which on its face is unsigned by whoever is the author, has nothing to indicate authorship and appears to be a series of points, rather than the more usual, and appropriate, format of an accurate transcription of a Tribunal hearing which would clearly show questions by the Tribunal and answers by the applicant. Mr. Jordan sought that I exclude the document on the basis of the discretionary exclusion pursuant to s.135 of the Evidence Act 1995 (misleading or confusing or cause or result in undue waste of time) or in the alternative, he sought an adjournment so that the respondents could take steps to clarify the contents of this document and/or its accuracy. For reasons which will become apparent below, this document does not assist the applicant's case, even if I was minded to give some latitude to an unrepresented applicant, and the hearing proceeded on that basis.
None of the complaints put forward by the applicant articulate, as submitted by Mr. Jordan for the respondents, any defect affecting the Tribunal's decision which is capable of constituting jurisdictional error:
1)The following is relevant:
a)The applicant complains that the Tribunal asked the applicant who founded the organisation of which he claimed to be a member and the applicant asserts that he responded with the correct name. He claims that in these circumstances, the Tribunal was in error when it stated “he gave a name which did not appear to be that of the founder”. I should at first note that in the document provided by the applicant (purporting to be a Transcript of the proceedings before the Tribunal) there is no record of any question separately asking who the “founder” of the “Liberation” group was. However, the applicant claims now that he did say that the founder of the party was “El Nabahani”. The only reference to this name is at page 3 of this document but is in purported answer to question 15 on page 3: “who is the leader of the Islamic liberation party?”
b)The Tribunal’s reference to this issue is in its decision record at CB 57.9 under the heading of “Claims and Evidence”:
“The applicant was asked who founded the Hizb-ut Tahrir organisation. He gave a name which did not appear to be that of the founder. He said that the head of the organisation now was, Abdul Qadim Zallume.”
c)Mr. Jordan submitted that questions 15 and 16 at page 3 of the applicant's document, to the extent that the ambiguity of the material can be put to one side, discloses that the question as to who was the founder (and also who was his successor and the current leader) of the group was put by the Tribunal to the applicant and that the applicant gave an answer and was then provided with another opportunity to clarify that answer. Critically, the Tribunal was aware when questioning the applicant of the correct name of the founder by reference to the country information (CB 59.4), and the Tribunal had the correct answer in mind and was able to listen for the correct words in the answer. Mr. Jordan's submission was that when looked at in this context and even if the document is accepted at face value, it would go no higher than establishing that there may have been misunderstanding over the words because of the way the words were said and that what was meant here was a misunderstanding of the pronunciation of the name of the founder. The ambiguity, notwithstanding the clear difference of the words “leader” and “founder”, in Mr. Jordan's submission, further emphasised that at best, this was no more than a mere misunderstanding.
d)The submission has strength, particularly when one looks at what the Tribunal actually said in its decision record in this regard. The Tribunal's words were that the applicant “gave a name which did not appear to be that of the founder”. Clearly, the Tribunal was not stating that the applicant was definitely wrong. The Tribunal therefore clearly demonstrated that it had not closed off the possibility that there may have been some misunderstanding on this point. What is of great significance however is that this issue is placed in the Tribunal's account of the hearing it conducted with the applicant. In its “Findings and Reasons” the Tribunal clearly did not rely on the answer of the applicant, whatever the answer may have been, in coming to the finding that the applicant lacked credibility. The Tribunal's finding in this regard was based on a number of other factors, significantly that the applicant was extremely ill-informed about the organisation and his description of the organisation's aims, as outlined in the pamphlets that he claimed to have been distributing, bore no relationship to the stated aims of the organisation.
e)Therefore, even taking it at its highest that there was some misunderstanding as to the applicant’s answer in relation to the question as to the founder of the organisation, the Tribunal clearly did not rely on this answer in making its finding that the applicant lacked credibility. This complaint does not succeed.
2)Further:
a)The applicant complains that when he was asked the name of the book written by the current leader of the “Liberation” group, that the Tribunal made an adverse finding against the applicant because he could not answer that question. The applicant now states in his amended application that the book which the Tribunal’s information states was written by this current leader (CB 59.5) was in fact only “co-authored” by him.
b)At the hearing before me the applicant stated that the Tribunal asked him the name of the book written by the current leader of the “Liberation” group. The applicant now complains that the question should have been phrased in terms suggesting that the leader was one of the contributors to a book written by 10 people. The applicant claimed at the hearing before me that the book has “9000 pages”, and because “Abdul Qadim Zallume” (the current leader) was the “most contributor towards this book” it has been attributed to him.
c)None of this appears to assist the applicant in his complaint. Even the applicant's own document (the purported Transcript of the hearing before the Tribunal) at question 17 shows that he was asked the name of the book published by “Abed al Kader Zalum” (Abdul Qadim Zallume). His answer, as recorded in his own purported Transcript, was “I don't know”.
d)The applicant has brought no evidence to support his allegation as to whether Zallume was the sole author, or one of a number of authors. In any event, this does not appear to be the issue on which the Tribunal's finding was based. The Tribunal asked the applicant (CB 58.2) the name of the leader of the organisation in Jordan and records the applicant's answer that he did not know. While the Tribunal records that it did put to the applicant that the leader wrote a book, the applicant is reported as saying he knew nothing about this. Even if the leader had only been a co-author or contributing author to this book, the applicant's complaint now that he was only a contributing author does not provide an explanation for his inability to provide the name of the book to the Tribunal, particularly in circumstances where the applicant now claims he was the primary contributor.
e)I note further, in answer to the applicant’s complaint before me, based on his assertion that Zallume was only the co-author, that the material before the Tribunal contains information specifically about the “Liberation” group at CB 67 to CB 70. At CB 70 “some” of the publications of persons associated with this group are listed. There is a list of 10 publications and item 3 shows (in context as a separate publication) a book authored only by “Abdul Qadeem Zallum”.
3)The applicant's complaint that the Tribunal asked a question about his business visa and then stated that this issue was not relevant is again not supported by any evidence to contradict the Tribunal's account of what occurred at the hearing. The applicant’s document does not show any comment by the Tribunal as now alleged by the applicant. Nor does the applicant’s complaint have sufficient specificity to be able to identify exactly what question about the business visa was alleged to have been asked, and what answer the applicant gave that the Tribunal rejected as not being relevant. The Tribunal's account of its questioning of the applicant in relation to his business visa is at CB 57 and shows that the Tribunal put to the applicant, at the hearing before it, its concerns that the applicant delayed in applying for a protection visa until December 2003 even though the appeal in relation to his business visa application had been resolved in 2002. The Tribunal found that in all the circumstances, particularly as the applicant at the hearing before it appeared to be lacking credibility in other respects, that the major reason for the applicant coming to Australia was to set up a business venture. It found that when he failed in this regard his aim was to continue his residence in Australia and to pursue business opportunities. In reaching this conclusion it partially relied on the finding that the applicant did not apply for a protection visa for at least a year after his appeal against his business visa refusal was unsuccessful in 2002. This finding was clearly open to the Tribunal on the material before it and no error can be discerned.
4)The applicant also claimed in the originating application to this Court, and repeated at the hearing before me, that the Tribunal relied on information which was not shown to him before the hearing to enable him to “answer any question being directed to me”. The applicant was unable to provide any particularity or specificity in relation to what information he claims was relied on by the Tribunal and was not shown to him, other than a reference to all the material at CB 63 to CB 83. But, in any event, the information appearing in the Tribunal's decision record at CB 58.9 to CB 59.8, is all information that would fall within the exemption provided for in s.424A(3)(a) of the Migration Act 1958 (“the Act”) from the need to put such information to the applicant pursuant to s.424A(1): Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92. Relevantly s.422B of the Act applies to this Tribunal decision.
5)The applicant also complained at the hearing before me, that the Tribunal did not give him any “proof to convince” him that the Tribunal was right or to “prove” that he was wrong. Clearly, it is for an applicant to put before a Tribunal claims, and material in support of those claims, and the Tribunal, under the relevant statutory requirements (s.65 and s.36(2)) in relation to a protection visa application, must be satisfied that relevantly the applicant meets the requirements of the definition of a refugee as contained in Article 1A(2) of the Refugees Convention. For the applicant's benefit, it is clear that the Tribunal has no obligation to provide “proof” to convince him that the Tribunal was right in its findings, nor does the Tribunal need to convince him that he was wrong. The Tribunal's obligation is to look at the claims as put by the applicant, properly consider those claims and the matters arising from those claims, to make findings of fact, including where, relevant findings on credibility, and either reach or not reach the requisite level of satisfaction that the applicant meets the definition of refugee as set out in Article 1A(2) of the Refugees Convention. This complaint also cannot succeed.
6)The applicant's complaint at the hearing before me as to the competence of the Tribunal and the capacity of the Tribunal to make the decision in his case cannot be sustained merely by an inference as the applicant suggested based on analysing the Tribunal's conclusions. The applicant is obviously aggrieved with the Tribunal's decision and in particular its findings in relation to his credibility. The applicant described to me that in effect he was called a “liar” by the Tribunal. But there is absolutely nothing before me to show that the Tribunal approached its task in any other manner, other than with the requisite level of competence. This complaint also cannot succeed.
7)The applicant’s complaint at the hearing before me that the Tribunal was mistaken to say that he was not a genuine in his claims, as it may have been put as a separate issue to any of his claims above, does not in the absence of any particularity rise above a request for impermissible merits review (Wu Shang Liang (1996) 185 CLR 259).
I can see no error, let alone jurisdictional error in the Tribunal's decision. The Tribunal had before it the applicant's claims and these were fully considered. The Tribunal did not believe what the applicant said in critical respects at the hearing before it. Findings of fact, including findings on credibility, are of course for the Tribunal as the decision maker “par excellance”: Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1. The applicant has not brought any evidence before the Court to dispute or to challenge the Tribunal's account of what occurred at the hearing before it. Nor does the applicant’s purported transcript assist in his complaints now. In any event the Tribunal's findings were open to it on the material before it, and the Tribunal gave reasons for its findings and decision. This application is dismissed.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Sybilla Waring-Lambert
Date: 17 October 2005
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