SZEPC v Minister for Immigration - [2005] FMCA 1609

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEPC v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1609

MIGRATION – RRT decision – Tanzanian claimed persecution after election incident – disbelieved by Tribunal – no error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.424A, 424A(1)(a), 474(1), 483A, Pt.8

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158

Applicant:

SZEPC

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3124 of 2004

Judgment of:

Smith FM

Hearing date:

26 October 2005

Delivered at:

Sydney

Delivered on:

26 October 2005

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms T Wong

Solicitors for the Respondents:

Clayton Utz

ORDERS

The Tribunal be included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3124 of 2004

SZEPC

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 3 September 2004 and handed down on 30 September 2004. The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.
The Court’s jurisdiction under s.483A is “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The Court therefore has powers under s.39B of the Judiciary Act 1903 (Cth), but these are subject to limitations under Pt.8 of the Migration Act. The limitations have the effect that I do not have power to set aside the Tribunal’s decision and send the matter back to the Tribunal unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The present applicant arrived in Australia in October 2003 as a visitor. He applied for a protection visa on 5 November 2003. He indicated in his application that he was a citizen of Tanzania who had been born in Zanzibar. He claimed that he had left Tanzania as a result of an incident which occurred in the course of a local election held in a locality of Zanzibar in May 2003. He claimed to have been assisting the election campaign of a particular party, and to have detected malpractice in relation to the conduct of the election. He claimed to have been attacked by police, arrested, and put in prison without charge. As a result of this, he feared further brutality from security forces working under the influence of other political parties. He claimed that the leader of his party had advised him to leave the country, and had assisted him and a friend to do this and to come to Australia. He claimed that a warrant for his arrest was being prepared when he left, and he believed that he would be arrested, harmed and mistreated if he went back to Tanzania.
A delegate refused the visa application on 13 February 2004, and the applicant applied for review by the Refugee Review Tribunal on 8 March 2004. His application did not put forward further supporting material, but after he was invited to a hearing he employed an agent who forwarded some supporting documents which corroborated his association with his claimed political party. He also forwarded a document purporting to be a warrant for his apprehension.
The applicant attended a hearing by the Tribunal on 5 July 2004.

A transcript of what was said is not in evidence before me, but the Tribunal gave an account of its questioning and I have no reason not to accept it as accurate. It is clear that the Tribunal gave the applicant extensive opportunity to detail what had happened to him during the election. It also put to him country information, including reports about the election published by international observers, which the Tribunal thought gave an inconsistent picture of the election. The Tribunal also put to the applicant that the warrant he had produced was clearly not genuine.
Under the heading “Findings and Reasons”, the Tribunal referred to another matter which the same Tribunal member had decided after a separate hearing, which concerned the person who had accompanied the applicant. The Tribunal said:
In the present case I acknowledge that the Applicant’s evidence about the events which led him to leave Zanzibar for the mainland is by and large consistent with the evidence of the person who he named at the hearing as K and who accompanied him to Australia. That person is also an applicant for a protection visa and he gave evidence before me at a separate hearing on 7 July 2004 (see my decision N04/48568). However the evidence of both men is so much at variance with the independent evidence regarding the by‑elections held on [location] on 18 May 2003 that I do not accept they are telling the truth about the events which they claim prompted them to leave Zanzibar and ultimately to leave Tanzania.
The Applicant claims that he and other members of the [party supported by the applicant] were involved in a confrontation with the police at the [location] polling station, that he and K were arrested and detained until midnight and that the following day the H advised them to leave Zanzibar for the mainland because he had information from a reliable source that a warrant was being prepared for their arrest. As I put to the Applicant in the course of the hearing before me, the by‑elections held in [location] in May 2003 were reported by international observers to have been peaceful and the results were considered free and fair. The only violence reported was a late night confrontation between supporters of the ruling party, the CCM, and the opposition Civic United Front, in Chake Chake (Ingvild Burkey, Zanzibar: House of Representatives By‑Elections 2003, Norwegian Centre for Human Rights (NORDEM Report 05/2003), June 2003, downloaded from accessed 4 July 2004; US State Department, Country Reports on Human Rights Practices for 2003 in relation to Tanzania, Section 3, Respect for Political Rights: The Right of Citizens to Change Their Government).
The Tribunal said that it accepted that there were problems with some voters not finding their names on the register, but it formed the view that:
the number of affected voters was small and there is no suggestion that supporters of the [party supported by the applicant] were singled out in any way.
As a result of its acceptance and assessment of the country information about the election, the Tribunal did not accept that a confrontation at the polling station of the sort described by the applicant had occurred. It also did not accept that the arrest warrant produced by the applicant was genuine. It said:
I consider that it is clear from the form of the warrant that it is not a genuine document and that it has been fabricated by someone with a poor understanding of legal formalities.
The Tribunal did not accept that the applicant was ever of interest to the Tanzanian authorities on the mainland or in Zanzibar. It did not accept that he and his fellow applicant left Zanzibar because they were told that a warrant was being prepared. It concluded:
I consider that the account given by the Applicant and his fellow applicant of the events at the [location] polling station is a fabrication intended to provide support for their applications for protection visas. I do not accept that the Applicant and his fellow applicant were involved in the by‑elections in [location] at all.
The Tribunal then addressed the applicant’s situation on the assumption that the applicant may have had some involvement with the party he claimed membership of. It did not accept that there was a real chance that he would be persecuted by the ruling party, the police or the Tanzanian government by reason of this involvement if he were to return to his home in Zanzibar now or in the reasonably foreseeable future. The Tribunal said:
I do not accept that there is a real chance that the Applicant will be persecuted for reasons of his political opinion if he returns to Tanzania now or in the reasonably foreseeable future.
I have considered the procedures followed by the Tribunal and its reasoning, and have been unable to identify any jurisdictional error affecting its decision. I consider it was open to the Tribunal to reject the credibility of the applicant’s account, and that its reasons for doing this based on its assessment of country information were open to it as a matter of law. There is no evidence before me that the applicant was unfairly denied any opportunity to respond to the Tribunal’s concerns.
The application filed in this Court on 20 October 2004 contains three grounds. The first is:
The Refugee Review Tribunal failed to investigate whether there is a real chance that I would be persecuted by the ruling party by reason of my political opinion now or in the reasonable foreseeable future.
However, as I have indicated above, the Tribunal did address that issue and made a clear finding upon it. The Tribunal was not obliged to conduct any investigation which it did not perform.
The second ground is:
The Refugee Review Tribunal did not complete the exercise of its jurisdiction as it made no finding as to what political changes might occur in Tanzania in the reasonable foreseeable future and also failed to find if my fear of being persecuted is well founded.
However, in my opinion the Tribunal has addressed the future position of the applicant if he returned to Tanzania in the reasonably foreseeable future. It made this assessment upon an assumption favouring the applicant’s claims, that is, that the government would continue to be in the hands of parties other than his party. I cannot see any other claim which it was obliged to address.
The third ground is:
The Refugee Review Tribunal made error of law by not considering my genuine persecution and failed to investigate my political involvement. The Tribunal failed to ask appropriate and detail questions about my role.
However, on the material before me the Tribunal has fully investigated the applicant’s claims by questioning him about them at the hearing. There is no evidence before me that any of its questioning was not appropriate or insufficient as a matter of law.
The applicant filed an amended application on 29 March 2005. He told me today that this was prepared by a friend, and he was not able himself to expand upon the points it contains. Its arguments are found under the heading “Particulars”:
Particulars
a)The Refugee Review Tribunal made abundant reference to the matter of another applicant that claimed circumstances similar to mine. It is envisaged from the Tribunal’s decision that the conclusions reached by the Tribunal in respect of that applicant apparently were used to support the conclusion in my application. Given that such information forms part of the reason(s) of the Tribunal, the Tribunal ought to have informed me in advance of its intention to rely, at least marginally, on its previous decision to determine my own matter. The Tribunal has therefore failed its natural justice obligation and consequently, failed to comply with section 424A of the Migration Act.
b)The Refugee Review Tribunal misconstrued the meaning of the term “refugee” in that it failed to consider whether the authorities were willing to provide protection to me in circumstances where I claimed that the security agencies would not offer me any effective protection if I were to go back to Tanzania.
c)The Refugee Review Tribunal also failed to investigate a claimed made in my primary application which is critical to the review application that the security forces are politically influenced by the ruling Chama Cha Mapinduzi (CCM) party and they would arrest me and put me in prison without any charges.
d)The Refugee Review Tribunal also exceeded its jurisdiction by finding that the fact that I left Tanzania with a passport in my own name and that I applied for a protection visa the day before my visitor visa expires suggests that the Tribunal was not satisfied of the bona fides of my claims for fearing persecution.
e)The Refugee Review Tribunal failed to complete its jurisdiction by failing to investigate my political involvement. Given that my claims of fearing persecution is on the basis of my political opinion, a reasonable Tribunal ought to investigate my claimed political involvement in detail in order to be able to assess the real chance of being persecuted for my political opinion if I were to go back to Tanzania.
Particular (a) contends that the Tribunal failed to invite the applicant to comment upon information before it concerning the claims of the applicant’s friend, whom I have referred to as “K”. The Tribunal’s reference to K occurs at the start of its findings, in the passage I have extracted above.
In my opinion, neither at this point nor at any other point in its reasons does the Tribunal use information about K or his refugee claims as a “part of its reasons” for affirming the decision of the delegate within authorities concerning s.424A(1)(a). In my opinion, the Tribunal has referred to the claims of K and to its decision about them in a manner which did no more than give background to the matter, and this reference was not “integral to” nor an “essential” part of its reasoning (c.f. VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [50‑54] and cases cited).
I cannot find the Tribunal using adversely to the applicant in its assessment of his credibility either the fact that K had made a claim which had also been addressed by the Tribunal, nor the content of K’s claims, nor the fact that K’s claims were consistent with the applicant’s. Indeed, to the extent that the Tribunal might appear to have drawn from the fact of the two claims, it was that they were mutually supportive. I therefore do not accept that there was a failure by the Tribunal to comply with s.424A or any other obligation reflecting duties of procedural fairness in relation to this aspect of the matter.
Particular (b) contends that there was a failure to consider issues of state protection. However, in my opinion the Tribunal has sufficiently addressed that issue. Having unequivocally rejected the history presented by the applicant, the Tribunal did not have to consider how the authorities might respond if the history were true. The Tribunal has addressed the applicant’s situation in relation to the Tanzanian government and security authorities in relation to such of the applicant’s account as it was prepared to accept or assume. I can find no misapplication of the Convention definition by the Tribunal, nor any failure to address an element of that definition which it was required to address in the course of its reasons.
Particular (c) contends a failure to investigate a claim made in the primary application. However, in my opinion the Tribunal did address and reject the claims made by the applicant, insofar as he claimed to be personally at risk from persecution from the ruling party.
Particular (d) criticises the Tribunal for giving some weight to the fact of the applicant’s departure from Tanzania on a passport in his own name, and to the lapse of time after the applicant’s arrival in Australia before he applied for protection. However, I do not read the Tribunal’s reasoning as drawing significantly from these matters. In any event, in my view it was open to the Tribunal to give some weight to those matters. I have not found the Tribunal exceeding its jurisdiction in this respect.
Particular (e) contends that the Tribunal “failed to complete its jurisdiction by failing to investigate my political involvement”. As I have indicated above, in my opinion the Tribunal complied with its duties to investigate the matter before it in the course of its review insofar as they arise under the legislation. I accept submissions by counsel for the Minister that it is not the duty of the Tribunal to actively conduct an inquiry to locate additional supportive material in support of an applicant’s claims (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]).
I therefore have not found any jurisdictional error as contended in the amended application.
The applicant today appeared without the assistance of a representative. He raised aspects of the Tribunal’s reasoning with which he did not agree, in particular its rejection of the arrest warrant. He argued that the Tribunal had not correctly understood the situation facing him at the time of the local election. However, he agreed with me when I suggested to him that essentially his complaint was that he was not believed by the Tribunal. As I have explained to him, it was the task of the Tribunal to decide whether or not he would be believed, and in my opinion it was legally open to it to decide not to believe him. I can find no ground for setting aside the Tribunal’s decision based on the matters which the applicant addressed me on.
For the above reasons, in my opinion the Tribunal’s decision was not affected by jurisdictional error. It therefore was a privative clause decision for which relief is barred by s.474(1) of the Migration Act. I must therefore dismiss the application.
RECORDED : NOT TRANSCRIBED

I certify that the preceding twenty‑eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 8 November 2005