SZEYN v Minister for Immigration
[2005] FMCA 1360
•19 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEYN v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1360 |
| MIGRATION – Refugee – inconsistencies in claims – relevant country information – credibility – privative clause decision. |
| Migration Act 1958, ss.424A(1), 424A(3)(b), 474 Federal Magistrates Court Rules 2001, r.21.02(2)(a) |
| Tin vMinister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Durairajasingham vMinister for Immigration and Multicultural and Indigenous Affairs (1999) 168 ALR 407 SAAP vMinister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 Minister for Immigration and Multicultural and Indigenous Affairsv Al Shamry (2001) 110 FCR 27 |
| Applicant: | SZEYN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2261 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 19 September 2005 |
| Date of Last Submission: | 9 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 19 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Ms. K. Morgan |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant to pay the first respondent’s costs set in the amount of $4700 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2261 of 2004
| SZEYN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
1st Respondent
REFUGEE REVIEW TRIBUNAL
2nd Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 19 July 2004 seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 May 2004 and handed down on 16 June 2004 to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant. The Minister is the first respondent and the Tribunal is the second respondent in these proceedings.
The applicant is a citizen of Malaysia who arrived in Australia on
18 September 2003, and on 30 October 2003 lodged an application for a protection visa with the first respondent’s Department. On
31 October 2003 a delegate of the respondent Minister refused to grant her a protection visa and on 10 November 2003 she applied for review of that decision to the Tribunal. The applicant claims to fear persecution in Malaysia because she fears she would be killed by Hindu and Muslim fanatics as a result of her relationship with a Muslim man. The claims are more specifically set out in the applicant’s application for a protection visa to the respondent's Department (Court Book 1 to CB 27) and a submission to the respondent’s Department dated 30 October 2003 (CB 25 to CB 27). The application to the Tribunal is at CB 40 to CB 44 and the applicant appeared at a hearing before the Tribunal on 16 June 2004. The Tribunal’s account of what occurred is at CB 94.2 to CB 96.2.The applicant’s originating application contains two unparticularised grounds. On 14 December 2004 the applicant filed an amended application which asserts the following grounds of review:
“5.The Tribunal did not put various of the inconsistencies to me that it found on my Convention claims orally and in writing.
6.It also did not put at least some of the relevant country information on Malaysia to me.
7. The Tribunal did not take great care to ensure a fair hearing to me.
8.The Tribunal was not legally justified in rejecting my Convention claims.
9.There was no material before the Tribunal upon which the Tribunal could make the credibility findings therefore legal error was involved.”
I also have before me written submissions from the applicant filed on
2 September 2005 which essentially reiterates the same issues raised in her amended application and also asserts that the Tribunal did not comply with the provisions of s.424A(1) of the Act. The applicant appeared unrepresented and was assisted by an interpreter in the Tamil language. I note that the applicant did access the Court’s Legal Advice Scheme and the report from the panel member of the scheme was given to the Court on 12 January 2005. I also have before me submissions from the respondent, filed in chambers on 9 September 2005. The respondent submits that each of the grounds of review should be rejected.Relevantly I note the following:
1)The applicant applied to the Tribunal for review of the decision to refuse her a protection visa on 10 November 2003 (CB 40 to CB 44).
2)On 22 November 2003 the Tribunal wrote to the applicant requesting additional information and specifically itemised 18 questions in relation to which the Tribunal required the additional information. Relevantly these covered matters in relation to her application to the Tribunal and including matters in the protection visa application (CB 45 to CB 47).
3)By letter dated 15 December 2003 the applicant's adviser responded to the Tribunal (CB 40 to CB 51). I note also that the applicant through her adviser provides a certified copy of her passport a certified copy of her Malaysian ID card and company ID card to the Tribunal. Relevant extracts are at CB 52 to CB 58.
4)On 31 March 2004 the Tribunal again wrote to the applicant and sought comment on specific information the Tribunal had received from the applicant's former employer in Malaysia and information received from the Malaysian High Commission in Australia in relation to passport application procedures in Malaysia. The Tribunal's letter at CB 62 to CB 63 notifies the applicant of the relevance of this information and seeks her comment and specifically advises the applicant that the information casts doubt on her credibility and the truth of her claims.
5)The applicant's adviser responded to the Tribunal's letter on
8 April 2004 (CB 66 to CB 67).6)The Tribunal conducted a hearing with the applicant on 28 April 2004. The applicant was assisted by her representative.
7)The applicant’s representative made further submissions on
10 May 2004 (CB 72 to CB 73) with annexures at CB 74 to CB 78.8)On 13 May 2004 the Tribunal again wrote to the applicant in relation to further information received by the Tribunal from the applicant’s former employer in Malaysia. The Tribunal specifically informed the applicant that the information on which it was now seeking the applicant's comment, had already been put to the applicant in previous correspondence, but what was now being put to the applicant was evidence from the applicant's former employer in support of the prior information obtained by the Tribunal.
9)The applicant's adviser made further submissions dated 21 May 2004 (CB 81 to CB 83).
The Tribunal's decision record is at CB 87 to CB 99. After examining the applicant’s claims which have been detailed at length in the Tribunal's decision record, the Tribunal stated in its “Findings and Reasons” that it did not accept that any of the story put forward by the applicant in relation to her claimed relationship with a Muslim was true (CB 97.4). The Tribunal concluded that the story had been totally contrived by the applicant in an attempt to mislead the Tribunal for the purposes of advancing her claims for a protection visa. The Tribunal noted that it had discussed its concerns with her credibility at the hearing with her and noted that in particular it had concerns about the evidence from her former employer and the circumstances surrounding the issuance of her passport in Malaysia. It found at CB 98.4 that these were determinative factors in the finding that the applicant was not a credible witness. The Tribunal also noted that the applicant had attempted to provide evidence to refute the above and noted that as the applicant had been in Australia for several months that if there was in fact any independent and reliable information to corroborate her claims and to counter the information that the Tribunal had obtained from other sources, then the applicant could have done so (CB 98.8). The Tribunal found that the applicant was not a credible witness and that she did not have a well founded fear of persecution for reasons of a Convention ground. It was therefore not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.
The applicant's grounds for review lack specificity and nor could the applicant before me add anything of substance to what appears in the amended application and the written submissions to the Court. The grounds are:
1)That the Tribunal did not put various inconsistencies to her from her oral and written accounts. This ground does not succeed. The Tribunal's unchallenged account of the hearing it conducted with the applicant shows that the Tribunal did put the relevant adverse matters to the applicant for comment at the hearing, and further, and I will deal another aspect of this below, it put to her a number of pieces of adverse information, on which it subsequently relied to make the adverse credibility findings, in writing and sought her comment. To the extent that this is a complaint that the Tribunal did not put to the applicant adverse inferences that it drew from the claims made by the applicant then there is no obligation on the Tribunal to put its thought processes, which would include any inconsistencies that it had identified, to the applicant. In Tin vMinister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1109 His Honour Justice Sackville said:
“It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s.424A(1). Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s.424A(1).”
In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [76]:
“It is here, nevertheless, that the real difficulty for the Minister's case arises. The assessment by the second Tribunal of the credit of the prosecutor was an important matter. There is no universal proposition that before the Tribunal ever makes a finding adverse to an applicant, it is necessary for the Tribunal to put to the applicant the concerns which are inclining the Tribunal towards such an adverse finding. The procedure is inquisitorial and not adversarial. The requirement of procedural fairness did not require the Tribunal when, pursuant to par (a) of s 425(1), it gave the prosecutor the opportunity to appear before it to give evidence, to treat what transpired "as though it were a trial in a court of law" [158] .”
2)The applicant complains that the Tribunal did not put some of the relevant country information on Malaysia to her. It is clear from the Tribunal's “Findings and Reasons” that the Tribunal's decision did not turn on any independent country information on Malaysia. Information relating to passport procedures in Malaysia was in fact put to the applicant in writing and she was provided with an opportunity to comment. This ground also does not succeed.
3)The applicant complains that the Tribunal did not take great care to ensure a fair hearing to her. The applicant provides no particulars in this regard and has provided no evidence to contradict the Tribunal's account of what occurred at the hearing that it conducted with the applicant. Further the applicant was represented by an adviser who was present at the hearing and who had ample opportunity to make any submissions or representations to the Tribunal in this regard. I note that the applicant's adviser did make submissions but there is nothing to indicate any concern about what occurred at the hearing. Further the Tribunal's correspondence with the applicant's adviser shows that relevant and critical matters were raised with the applicant, both before, during and after the hearing. This ground also cannot succeed.
4)The applicant complains that the Tribunal was not legally justified in rejecting her Convention claims. The applicant was unable to advise on what was meant by this ground, but to the extent that it is a complaint that the Tribunal had no legal basis for making the decision, then there is nothing in the material before me to justify such a complaint.
5)The applicant complains that there was no material before the Tribunal upon which the Tribunal could make the credibility findings and therefore a legal error was involved. It is clear however, that the Tribunal did have material before it which it put to the applicant both by way of writing and through discussion with her at the hearing before it, on which it based its adverse credibility finding. In any event, a finding by the Tribunal on material questions of fact, including findings on credibility are for the Tribunal and not in themselves reviewable by this Court. These are matters for the decision maker “par excellance”. Durairajasingham vMinister for Immigration and Multicultural and Indigenous Affairs (1999) 168 ALR 407 per McHugh J. at [67].
6)The applicant also complains by way of submission that the Tribunal did not comply with the provisions of s.424A(1) of the Migration Act in that it did not provide her with all the adverse information on which they relied to reject her application, and did not put the inconsistencies which they found between the oral evidence and written evidence provided by her to the Tribunal. First the material on which the Tribunal relied in making its adverse credibility finding, in particular the information obtained from her former employer and the information obtained from the Malaysian High Commission, was put to the applicant by way of writing and the applicant was given an opportunity to comment on this information. To the extent that the Tribunal made reference to the actual employment records obtained from the former employer, it is clear that the substance of this information had been previously put to the applicant in writing and her comments were sought, but the information contained in the employment records, to the extent that it corroborated this information, was also put to the applicant by way of the letter of 13 May 2004. While the Tribunal, and in particular see CB 81 to CB 83, appears not to have provided the actual employment records nonetheless it have provided a summary of the contents of the documents and the applicant was given an opportunity to comment which she did through her adviser. The Tribunal considered her explanations. Ms. Morgan fairly also raised the issue of the possible combined application of the High Court decision in SAAP vMinister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 and the Full Federal Court decision in Minister for Immigration and Multicultural and Indigenous Affairsv Al Shamry (2001) 110 FCR 27 and submitted that this is not applicable in this matter as the material the Tribunal relied on was the applicant's oral evidence given by the applicant at the hearing conducted with the Tribunal for the purposes of her application to the Tribunal and her responses to the requests by the Tribunal for further information for comment on the information obtained by the Tribunal. I accept the respondent’s submission that as such it was all information submitted for the purposes of the Tribunal application and therefore an exception to s.424A(1) pursuant to s.424A(3)(b).
The applicant was represented by an adviser throughout the application to the Tribunal. She was given the opportunity to attend a hearing before the Tribunal, her adviser was present during the hearing and relevant matters were put to her both at the hearing and in writing and she was given an opportunity to comment. In all the circumstances none of the applicant's grounds can be made out nor can I see any jurisdictional error in the Tribunal's decision. Cleary the findings made by the Tribunal were open to it. This is a privative clause decision. The application is dismissed pursuant to s.474 of the Act.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 19 September 2005
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