SZEPO v Minister for Immigration

[2005] FMCA 1831

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEPO v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1831

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.91X, 474
Judiciary Act 1903 (Cth), s.39B

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703
NARD v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 27
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Abebe v Commonwealth of Australia (1999) 197 CLR 510
QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1448
SZDIK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1252

Applicant: SZEPO

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File No: SYG3142 of 2004

Delivered on: 16 December 2005

Delivered at: Sydney

Hearing date: 2 November 2005

Judgment of: Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person with the aid of a Swahili interpreter.

Counsel for the Respondent: Ms S McNaughton

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. The Refugee Review Tribunal is joined as the second respondent.

2. The application is dismissed.

3. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3142 of 2004

SZEPO

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 21 October 2004 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 3 September 2004 and handed down on

   
   

   30 September 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 13 February 2004 to refuse to grant the applicant a protection (Class XA) visa.  The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.

2. The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZEPO”.

Background

1. The applicant, who claims to be a citizen of Tanzania, arrived in Australia on 16 October 2003. On 5 November 2003 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.1-26) (“CB”). On 13 February 2004 the delegate refused to grant a protection visa (CB pp.29-35) and on

   
   

   8 March 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.36-39).

Applicant’s claim

1. The relevant background facts of the applicant are set out in the written submissions prepared on behalf of the respondent by Ms S McNaughton and I adopt paragraphs 4 and 5 of those submissions for the purpose of this judgment:

   [4]The applicant’s claims were initially set out in his original application at pages 7-11.  He claimed to fear persecution by agents of the Tanzania Security Forces in Pemba as a result of his activities with a particular political party (NCCR-Mageuzi).  The Tribunal noted these claims in detail at pages 101.5-102.5.  The applicant’s adviser submitted further documents under cover of a letter dated 7 June 2004 at pages 49-63, including a purported warrant for his arrest, and a passport in his genuine name.  The Tribunal referred to these documents at page 102.5ff.

   [5]The applicant amplified his claims at a hearing conducted at
   7 July 2004, during which the Tribunal put a number of its concerns regarding the credibility of his claims to him for comment.  At page 107.4 the following is recorded by the Tribunal member:  “I noted that there was nothing to suggest that people from the NCCR-Mageuzi had problems with the police, the Government or the ruling party.  The applicant said that they had problems with the ruling party but not with the police”.

The Tribunal’s findings and reasons

1. A convenient summary of the Tribunal’s reasons are contained in the respondent’s written submissions prepared by Ms McNaughton and

   
   

   I adopt paragraphs 6-8 of those submissions for the purpose of this judgment:

   [6]The Tribunal noted that the applicant’s evidence was largely in accordance with that of another protection visa application that had appeared before the Tribunal on 5 July 2004.  However, the Tribunal noted the evidence of both men was so much at variance with the independent evidence that it could not accept they were telling the truth about the events which they claim prompted them to leave Zanzibar and ultimately to leave Tanzania.

   [7]Essentially, the Tribunal made adverse credibility findings against the applicant for reasons it set out on pages 110-113.  It found the applicant’s account of events in relation to by-elections on the island of Pemba was not consistent with country information.  The Tribunal did not accept that international observers would have failed to record details of the alleged incidents as suggested by the applicant if in fact they had occurred.  It further did not accept that the arrest warrant the applicant produced was genuine because it found that a genuine arrest warrant would have been directed to the police not to the Secretary-General of a political group.  The Tribunal also found the ease of travel by the applicant in and out of Kenya was inconsistent with the applicant’s claimed fear of the authorities.  The Tribunal did not accept the applicant used a false passport for entry to Australia because he was afraid of Tanzanian authorities, but rather to obtain a visa to travel to Australia.  At page 113.2 the Tribunal stated:  “I consider that the account given by the applicant and his fellow applicant of the events at the Tumbe 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 Pemba at all”.

   [8]The Tribunal went on to note that even if it accepted the applicant had had some involvement with the NCCR-Mageuzi, it did not accept that there was a real chance that he would be persecuted by the ruling party, the police or the government by reason of this involvement now or in the reasonably foreseeable future as there is nothing in the available evidence to suggest that people from the NCCR-Mageuzi have any such problems.

Application for review of the Tribunal’s decision

1. On 21 October 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth). On 31 January 2005 the applicant filed an amended application which contained the following ground:

   1.The Refugee Review Tribunal failed to exercise its jurisdiction.

   Particulars

   a)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 the security forces are politically influenced by the ruling Chama Cha Mapinduzi (CCM) party and that they would arrest me and put me in prison without any charges.  I also claimed that I feared brutality on the part of the security forces in Tanzania as this is common.  In other words, the government and the security forces would not offer me any protection if

   
   

   I were to go back to the Tanzania.  The view arrived at by the Refugee Review Tribunal that it would not accept that there was a real chance that I would be persecuted by the ruling party, the police or the Tanzanian government is an error.  A reasonable Tribunal could not have made such assertions without evidence.

   b)The Tribunal failed to consider a claim made in my application and critical to the determination of my application for review of the decision of the delegate, namely that the reasons for my fear of persecution is based on my political involvement with the NCCR-Mageuzi.  The Tribunal failed to complete its jurisdictions by ignoring relevant claims in my application and failed to investigate my political involvement.  The Tribunal failed to assess what political changes might have occurred in Tanzania in the reasonable foreseeable future.

   c)As is implicit in the Tribunal’s reasons for decision the Tribunal failed to accept that there was a real chance that I would be persecuted because of mere lack of any evidence before the Tribunal to suggest that people from the NCCR-Mageuzi have problems with the police, the Government or the ruling party.  This would not be sufficient basis for the Tribunal’s decision.

   d)The Tribunal also exceeded its jurisdiction by finding that by remaining in Tanzania for five months after leaving Zanzibar, and during this time travelling to Kenya and returned to Tanzania on two occasions suggests that I did not fear the Tanzanian authorities.  The Tribunal also made erroneous finding that my actions were incompatible with a profile of a person entertaining genuine fear of persecution for convention reason.

The law

1. The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith:  Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].

2. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power:  Craig v South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration and Multicultural Affairs.

Reasons

1. The applicant is a self represented litigant, appearing with the assistance of a Swahili interpreter.  The applicant confirmed he had filed an amended application in accordance with the orders of the Registrar at the first Court date hearing but had not provided any written submissions which was a further requirement of the Registrar’s orders.  The applicant indicated that he had only just received the respondent’s written submissions and sought a brief adjournment in order that the material could be read and translated for him by the interpreter.  I granted the applicant a brief adjournment to enable this process to be undertaken.

2. When the Court reconvened I invited the applicant to make oral submissions in support of his application.  During this time the applicant attempted to provide a background to his position in Tanzania, his membership of his political party and a number of different issues in respect of the misunderstanding and false reporting as to the particular situation in his country and the general circumstances in respect of his fleeing from Tanzania with a close associate.

3. I indicated to the applicant that I appreciated the practical difficulties with which a person in his position is confronted as a result of being in a strange country whose language he could not speak and whose legal system he does not understand.  I also explained to the applicant the limited function of this Court hearing and that it was not a merits review in respect of his visa application and the multitude of issues that may be relevant to provide to a delegate and subsequently to the Tribunal member are not the subject of review in this Court.  The applicant indicated that he was completely unhappy in the way he had presented his story to both the delegate and the Tribunal member and that it was his desire to be given a further opportunity to re-present this material to those two forums in a different and more coherent manner.

4. The applicant indicated that there were a number of errors and misunderstandings in the written submissions filed on behalf of the respondent.  When invited to indicate the nature of these errors and misunderstandings, the applicant again proceeded to give lengthy explanations going to the merits of his situation and why they established the circumstance that he should be provided with a protection visa.  The applicant was also advised that the respondent’s submissions were in response to the issues that had been raised by his amended application and that the submissions had been prepared in response to the material raised in those particulars.

5. The respondent indicated that she relied upon her written submissions and assisted the Court by augmenting that material by oral submissions.

6. In respect of Ground 1(a), the respondent submitted that the Tribunal did not believe that the applicant had engaged in any conduct such as to cause him any problem which would require protection.  In essence, the Tribunal disbelieved the applicant’s essential claim.  The Tribunal acknowledged it was aware of the details in respect of the person that left Zanzibar with the applicant and also filed a protection visa application on his arrival in Australia.  However, the Tribunal found that their story and ultimate claims for protection were so at variance with the independent evidence available regarding the by-elections held on the island of Pemba on 18 May 2003, that it was unable to accept the applicant’s story.

7. The Tribunal member put to the applicant details of the independent country information that it had obtained in respect of the election and the manner in which it had been conducted.  The applicant conceded that no one had been killed due to violence during the election but claimed the result was not fair and that there were numerous irregularities in respect of allowing people to vote.  The Tribunal member could not accept many of the irregularities claimed by the applicant because they were not identified by the independent international observers who were monitoring the elections.  The claims being made by the applicant were also inconsistent with the statements made in press conferences by the leader of the NCCR-Mageuzi.

8. The Tribunal member also noted that the applicant had not left Tanzania until five months after the date of the elections however in that time had travelled to Kenya and returned on two occasions without any apparent intervention or harassment by the Tanzanian authorities.  When the applicant was questioned on these aspects, the Tribunal member was not satisfied with the applicant’s explanation which was not consistent with the independent country information provided by the international observers.  Nor was the Tribunal member satisfied that the applicant had been involved with the NCCR-Mageuzi and that the applicant would have suffered any problems which would have necessitated protection.

9. Ultimately, all the claims being made by the applicant were contradictory to the independent country information that had been compiled by international observers attending the election campaign and voting which was the subject of the applicant’s allegations.  The Tribunal member did not accept the claims being made by the applicant.

10. For the Court to accept the issues being contended by the applicant would require the Court to enter into a merits review.  Clearly, a merits review is not available in this Court:  Minister for Immigration & Ethnic Affairs v Wu Shan Liang per Brennan CJ, Toohey, McHugh and Gummow JJ at [31]. A merits review is an assessment of the appropriateness of the decision as distinct from a judicial review which focuses on the lawfulness of the earlier decision. A judicial review asks whether the decision maker was authorised to do what he did under the prevailing law not whether the actual decision was the best decision that could have been made in the circumstances. A merits review provides a complete rehearsal of all the issues relevant to the application. Ground 1(a) cannot be sustained.

11. In respect of Ground 1(b), the applicant claimed that the Tribunal failed to complete its jurisdiction by ignoring relevant claims in his application and failed to investigate his political involvement.  The respondent submitted that it was clear from the Tribunal’s reasons that it considered the applicant’s fear to be based on his involvement with the NCCR-Mageuzi.  The Tribunal set out cogent reasons for finding these claims lacked credibility.  These findings were properly open to the Tribunal:  Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham at [67]; Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs at 558-9; W148/00A v Minister for Immigration & Multicultural Affairs at [64]-[69]. The Tribunal was entitled to rely upon independent country information in drawing conclusions of fact:  NARD v Minister for Immigration & Multicultural & Indigenous Affairs at [10] and [13].  The weight given to various pieces of country information or whether it should be accepted as accurate is a matter for the Tribunal.  For a Court to engage in that exercise would amount to a merits review which it cannot undertake:  NAHI v Minister for Immigration & Multicultural & Indigenous Affairs at [11].

12. The Tribunal was under no obligation to investigate the claims which the applicant made:  Abebe v Commonwealth of Australia per Gummow and Hayne JJ at [187]:

    “… The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out.”

    See also Re Ruddock; Ex parte Applicant S154/2002 at [57].

13. The respondent also submitted that given the credibility finding made by the Tribunal and its assessment of the independent country information, it was not relevant for the Tribunal to assess what political change might have occurred in Tanzania in the reasonably foreseeable future.  I accept these submissions and agree with the respondent that Ground 1(b) cannot be sustained.

14. In respect of Ground 1(c), the applicant claimed that the Tribunal failed to accept that there was a real chance that the applicant would be persecuted because there was insufficient or a lack of evidence to support this claim.  The Tribunal was entitled to draw inferences from the absence of any report if there was reason to expect that such a report would, in the usual course, exist and the independent country information considered did not contain any material which would support this contention nor did the applicant provide any material in support of his claim.  In Ground 1(c), the applicant claimed due to a lack of evidence before the Tribunal to suggest that people from NCCR-Mageuzi had problems with the police, the government or the ruling party, the Tribunal formed the view that there was not a real chance that the applicant would be persecuted.  The Tribunal in its deliberations considered independent country information but those reports did not contain material that supported the applicant’s claim that NCCR-Mageuzi members were at risk of persecution.  The available reports did not support this view.  The Tribunal was entitled to draw inferences from the absence of any report if there was reason to expect that such a report, if it did exist, would support that contention:  QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs per Dowsett J at [45]:

    “The Tribunal looked for country information which might support the applicant’s case and found none. It drew inferences from the absence of such information, given that non-government organizations were active in the area. It put to the applicant its concerns arising out of the absence of any such information. No doubt, care was necessary in drawing inferences from the absence of evidence, but the Tribunal appears to have been aware of the possible weaknesses in its approach. It was nonetheless entitled to adopt it. I again point out that the applicant had no first-hand knowledge of current conditions in Afghanistan. I see no basis for concluding that the outcome was so unreasonable as to bespeak a miscarriage in the process by which the Tribunal reached its decision. I reject the applicant’s submission that one cannot draw rational inferences from the absence of information. It is said that the decisions of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574–5 and Abebe v Commonwealth (1999) 197 CLR 510 at 543–4 support the submission. I see nothing in those decisions which does so. One may draw inferences from the absence of reports if there is reason to expect that such reports would, in the usual course, exist. I see no basis for this criticism of the Tribunal’s approach.”

    See also SZDIK v Minister for Immigration & Multicultural & Indigenous Affairs per Hely J at [14]:

    “… there was no breach of the rules of natural justice in failing to disclose the notorious and incontrovertible fact that the BNP had assumed government and there was a sufficient disclosure to the appellant that no independent evidence indicated that people with ‘non-conformist’ views were being attacked. The RRT was entitled to draw inferences from the absence of any report to this effect if there was reason to expect that such a report would, in the usual course, exist: QAAH of 2004 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1448 at [45].”

    Ground 1(c) cannot be sustained.

1. In Ground 1(d), the applicant claimed the Tribunal made an erroneous finding in respect of his movements in the five months prior to his final departure from Tanzania, namely that these were incompatible with the profile of a person entertaining genuine fears of persecution for Convention reasons.  The Tribunal was entitled to come to the conclusion it did on the material before it.  The Tribunal, in its decision, sets out each element in relation to the applicant’s movements during this period and clearly stated the conclusion drawn from these facts.  The applicant’s attempts to invigorate a review of this aspect of the Tribunal’s reasons, is an attempt to seek a merits review which is not available to the applicant in a judicial review.  Ground 1(d) cannot be sustained.

Conclusion

1. None of the grounds pleaded by the applicant in his amended application filed on 31 January 2005 can be sustained.  As the applicant is a self represented litigant, I have independently reviewed and considered the Tribunal’s decision and have not been able to identify any ground that the Tribunal has committee jurisdictional error.  The applicant’s claims should be dismissed.

2. I am satisfied that an order for costs should be made in this matter.

   
   

   I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:  Menna McMullan

Date:  16 December 2005