SZESA v Minister for Immigration
[2005] FMCA 1784
•21 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZESA v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1784 |
| MIGRATION – Review of decision of Refugee Review Tribunal – applicant claims Tribunal failed to take into account relevant evidence – applicant claims memory loss caused him to make mistakes at Tribunal hearing which led to adverse findings of credibility. |
| Migration Act 1958 (Cth), s.474 |
| Applicant: | SZESA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3340 of 2004 |
| Judgment of: | Emmett FM |
| Hearing date: | 21 November 2005 |
| Date of Last Submission: | 21 November 2005 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr B. Zipser |
| Counsel for the Respondent: | Mr G. Johnson |
| Solicitors for the Respondent: | Mr K. Sinnadurai, Clayton Utz |
ORDERS
That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
That the Applicant’s applications before this Court are dismissed.
That the Applicant’s pay the Respondent’s costs in an amount of $5500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3340 of 2004
| SZESA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant was represented by Counsel before this Court this morning. The Applicant relied upon an amended application filed in this Court on 15 June 2005 (“the Amended Application”) which identified two grounds of review.
The first ground relates to an allegation by the Applicant that the Tribunal fell into jurisdictional error in finding that it was not satisfied that the Applicant had converted to Christianity, as he claimed, the particular being that the Applicant had given evidence before the Tribunal that he had a church beside his house which he visited very regularly and that there was a church in Haymarket, Sydney, which he attends. The Applicant in that ground complained that the Tribunal ignored that evidence.
Counsel for the Applicant this morning properly and frankly drew the Court's attention to the Tribunal's decision in the findings and reasons part of its judgment to which it refers to the Applicant's claim that:
“He claims to be a Catholic who was baptised into the church, reads the Bible, studied Christianity and attended church often in Bangladesh and Australia.”
In those circumstances, the Applicant makes no submissions in respect of that ground.
I have regard to the First Respondent's submissions in paragraphs 1 to 16 of the First Respondent's outline of submissions filed on 14 November 2005. I refer to those paragraphs as part of these reasons and set them out below accordingly. I do so with the concession by Counsel for the Applicant that that is an appropriate course in the circumstances.
“1. This is an application to review the decision of the Refugee Review Tribunal (“the Tribunal”), handed down on 20 October 2004, at CB 113-134.
2. The applicant’s case is stated in an amended application filed on 15 June 2005. As at the date of drafting of these submissions, no written submissions have been received from the applicant.
3. In the light of what was said in SAAP v MIMIA (2005) 215 ALR 162, as to respondency in matters of this kind, the Tribunal should be added as a second respondent. My instructing solicitor has standing instructions from the Tribunal to submit on its behalf to such orders as the Court finds fit, save as to costs.
4. The decision of the Tribunal is not shown to have been vitiated by jurisdictional error and, consistently with Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, is a “privative clause decision” protected by the privative clause contained in section 474 of the Migration Act 1958 (“the Act”).
5. Before proceeding to deal with the grounds stated in the amended application, it is convenient to shortly summarise the relevant background and the basis upon which the Tribunal decided the application.
Background – Reasoning of the Tribunal
6. The applicant, a national of Bangladesh, arrived in Australia on 7 November 2003 and, on 18 December 2003, applied for a protection visa. That application was refused by a delegate on 18 February 2004 and the applicant applied to the Tribunal on 15 March 2004 to review that decision. A summary of the applicant’s claims and evidence to the Tribunal occurs at CB116-126. (It is noted that there were two Tribunal hearings, the Tribunal being differently constituted on the second occasion).
7. The applicant’s claims to fear persecution in Bangladesh ultimately related both to his claimed conversion to Christianity from Islam and to his claimed political opinion as a member of the Awami League.
8. With respect to the claims based upon religion (Christianity), the Tribunal did not accept that the applicant had ever converted to Christianity as he claimed. The Tribunal proceeded to explain that the applicant’s evidence in this respect had been “inconsistent” and “vague” (CB129.5-130.2). This caused the Tribunal to doubt the credibility of the applicant. The Tribunal’s view of the applicant’s credibility was also based on the Tribunal’s finding that the applicant, in submitting a letter purporting to be from a Baptist pastor attesting to the claimed conversion from Islam to Christianity but admitted by the applicant to have been false, had “knowingly commissioned another person to obtain this document for him from Bangladesh” and had submitted it to the Tribunal “knowing it to be false in order to bolster his claims to have converted from Islam to Christianity”. The Tribunal further found that the applicant lacked basic knowledge about the Christian religion and that this also caused it not to be satisfied as to the applicant’s claimed conversion to Christianity.
9. The claims based upon the applicant’s alleged involvement with the Awami League were also rejected. The Tribunal was not satisfied of the credibility of those claims, for reasons explained by it at CB130.9-133.3. (The amended application appears to be directed not to these findings, but to other aspects of the Tribunal’s reasoning).
10. The Tribunal, at CB133.3, referred to the applicant having claimed during the first Tribunal hearing that he had memory problems – referring to some “problem with (his) brain” and to a tendency to make mistakes and become confused. The Tribunal noted that, at the second Tribunal hearing, the applicant’s advisor sought to rely upon those alleged memory problems to excuse the applicant’s inability to explain aspects of the Christian religion. The Tribunal was not satisfied that the applicant had suffered any injury which continued to impair his intellect, or his short-ter memory, or which had effected the information provided by him to the Tribunal. The Tribunal found that the claims to intellectual impairment and memory loss had been advanced only in order to explain, during the first Tribunal hearing, why the applicant had made no mention of his claimed Awami League membership in his protection visa application (CB133.5-133.9).
The applicant’s grounds
11. The two grounds pleaded in the amended application are directed towards the Tribunal’s non-satisfaction that the applicant had converted to Christianity, as he had claimed, and to the Tribunal’s rejection of the proposition that the applicant suffered some memory problems which led him to make mistakes and become confused.
The first ground
The first ground alleges that the Tribunal “fell into jurisdictional error” by (it is alleged) ignoring two items of evidence. The evidence is described in the ground as being evidence given by the applicant that “he has a church beside his house which he visits very regularly” and that there was a church in Haymarket in Sydney which he attends.
In fact, the Tribunal did refer to such evidence. At CB126.2, the Tribunal, in the course of summarising what occurred during the second Tribunal hearing, noted: “He said he had a church beside his house that he visits very regularly”. Also at CB118.3, the Tribunal referred to evidence having been given by the applicant at the first Tribunal hearing that “in his church near Haymarket everyone loves him, including Aboriginal people”. Further, at CB130.9, the Tribunal noted that the applicant claimed to have “attended church often, in Bangladesh and Australia”. Plainly, the Tribunal was mindful that the applicant had given evidence to the effect that he attended a church near Haymarket, that there was a church near his house and that he attended church regularly. However, the Tribunal found that the “applicant’s knowledge of fundamental facts about Christianity” to be such that it could not be satisfied (inter alia) of these claims of regular church attendance (CB130.9) and, ultimately, as explained above, simply was not satisfied that the applicant’s claims – even that he had converted at all – were true. The fact that the Tribunal was not satisfied by the applicant’s evidence does not mean that it was ignored.
The credibility of an applicant is, or course, a matter for the Tribunal “par excellence” (Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at 423, [67]). Thus, in NADR v MIMIA [2003] FCAFC 167 at [9], a Full Court held:
“The second ground of appeal was that the primary judge erred in not finding error of law in the credibility finding of the Tribunal. The finding of facts, including the making of findings of credibility, was uniquely within the jurisdiction of the Court. It would have been in contravention of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 for the Court to have engaged in merits review. Furthermore, there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) CLR 510 at [137].”
In any event, the Tribunal is not jurisdictionally obliged to refer to, or grapple with, in its reasons, any competing body of evidence. Nor would a lack of reference to such evidence allow the Court to infer that it was ignored by the Tribunal. In MIMIA v Applicants S194 of 2002 [2003] FCAFC 273 at [21]-[23], Ryan, Heerey and Allsop JJ reminded that section 430(1) of the Act does not require the Tribunal to refer to every piece of evidentiary material before it, but rather requires the Tribunal to state its findings and the evidence that it considers material to its decision, and also held “…The bare fact that document was not mentioned in the Tribunal’s reasons is equally consistent with the Tribunal considering, rightly or wrongly, that it was irrelevant or unimportant or with the Tribunal simply overlooking it. Neither circumstance would amount to jurisdictional error…”.
The respondent also notes that “a failure expressly to mention or grapple with part of the competing body of evidence before the Tribunal relevant to a finding made, in circumstances where the elements or integers of the claim for asylum are addressed” would not amount to a failure to consider relevant considerations or a taking into account of irrelevant considerations (Paul v MIMIA (2001) 113 FCR 396 at [79] per Allsop J, with whom Heerey J relevantly agreed at [1]. Nor would it amount to a failure to consider a claim that the Tribunal was jurisdictionally obliged to consider – even if (as is not considered) the evidence is probative and, by such route, the Tribunal commits a factual error: Htun v MIMA (2003) 194 ALR 244 at [42] per Allsop J, with whom Spender J agreed at [1].”
Accordingly, I find that ground one is rejected.
The second ground upon which the Applicant relies relates to a claim by the Applicant that he told the Tribunal that he had memory problems which led him to make mistakes and become confused, that he has a memory problem and was not fit to attend the Tribunal hearing.
The Tribunal, in its decision, considered the Applicant's health and was not satisfied that the information provided by the Applicant provided a sufficient basis for believing that he had suffered any injury which, on a continuing basis, had impaired his intellect or his short-term or long‑term memory or which affected the information he provided to the Tribunal. Again, Counsel for the Applicant this morning concedes that the submission made by the First Respondent in paragraph 21 of the First Respondent's outline of submission is a correct statement of principle, that paragraph being in the following terms:
“Further, even if the state of the law had been otherwise, the applicant never sought an adjournment from the Tribunal, and moreover, has not filed in this Court expert evidence to establish the fact alleged, namely that the applicant was unfit to give oral evidence when he did.”
The Applicant makes no other submissions on that ground. Accordingly, the ground is rejected.
In the circumstances, the decision of the Tribunal made on 13 October 2004 and handed down on 20 October 2004 is a privative clause decision, and pursuant to s.474 of the Migration Act1958 (“Cth”) this Court has no jurisdiction to interfere. Accordingly, the Applicant's applications before this Court are dismissed with costs.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S Riddle
Date: 1 December 2005
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