SZFAM v Minister for Immigration - [2005] FMCA 1825

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFAM v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1825

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, 424A(1), 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
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry [2001] FCA 919
NAZY v Minister forImmigration & Multicultural & Indigenous Affairs [2005] FCA 744
SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
Yo Han Chung v University of Sydney & Ors [2002] FCA 186

Applicant:

SZFAM

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG3226 of 2004

Delivered on:

16 December 2005

Delivered at:

Sydney

Hearing date:

10 November 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents:

Mr R Beech-Jones

Solicitors for the Respondents:

Phillips Fox

ORDERS

The Refugee Review Tribunal is joined as second respondent.
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3226 of 2004

SZFAM

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

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 2 November 2004 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 26 August 2004 and handed down on

21 September 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 11 May 2004 to refuse to grant the applicant a protection (Class XA) visa. The applicant seeks unstated relief against the decision of the Tribunal.
On 10 November 2004 the respondent solicitors filed a Notice of Objection to Competency. In that Notice the respondent objects to the jurisdiction of this Court to try this application for an order under the Judiciary Act 1903 (Cth) in relation to the decision of the Migration Act 1958 (Cth) (“the Act”) on the grounds that subsection 477(1A) of the Act provides that an application for review must be lodged with the Registry of the Court within 28 days of notification of the decision. On the same day, the respondent solicitors filed an affidavit sworn by Adele Alex which the respondent reads into evidence and relies upon.
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Act and has been given the pseudonym “SZFAM”.

Background

The applicant, who claims to be a citizen of Uganda, arrived in Australia on 5 April 2004. On 30 April 2004 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.1-44) (“CB”). On 11 May 2004 the delegate refused to grant a protection visa (CB pp.45-53) and on 25 May 2004 the applicant applied to the Tribunal for a review of the delegate’s decision (CB pp.54-59).
The applicant is a single male born in September 1976. He speaks, reads and writes English, Swahili and Luganda and states his religion as Catholic and his ethnic group as Bantu. The applicant states his occupation prior to arriving in Australia as farmer. He claimed he had ten years education and holds a diploma in catering. The applicant stated he was unemployed from 1999 to 2001 and was then employed as a field officer for Earth Line. He states that he came to Australia on a temporary business visa which was issued in Kenya for the purpose of attending a conference (CB p.110).

Applicant’s claim

The relevant background facts of the applicant are set out in the written submissions prepared on behalf of the respondent by Mr R Beech-Jones and I adopt paragraph 2 for the purpose of this judgment:
[2]The applicant claimed that he had a well founded fear of persecution for reasons of his political opinion namely his opposition to the Lord’s Resistance Army (“LRA”). The LRA was seeking the overthrow the Ugandan government (CB30.8 and 32). His claims were set out in his application for a protection visa (CB18 to 23) and expanded upon in his written submissions to the RRT (CB56-59; CB64-67) and an oral hearing before the RRT summarised in its reasons (CB112 to 117). In summary the applicant claimed:
(i)That his mother came from the northern part of Uganda and his father from the eastern part and that his father passed away in 1996 (CB113.1);
(ii)He visited his mother at her home in Gulu in Uganda five times since 2001 (CB113.5);
(iii)While visiting his mother he was abducted by members of the LRA. He was made to work for them and was threatened because he voted for the current president of Uganda (CB111.3);
(iv)He remained in the LRA camp for 11 days and then escaped in March 2004 (CB111.4);
(v)Thereafter he travelled to Kampala and made travel arrangements to come to Australia (CB111.5) via South Africa (CB66.10);
(vi)He fears that upon his return to Uganda he might be killed by the rebels because of what he knows and that protection from the local authorities will not be available (CB111.6).

The Tribunal’s findings and reasons

A convenient summary of the Tribunal’s reasons was contained in the respondent’s written submissions and I adopt paragraphs 3 and 4 of those submissions for the purpose of this judgment:
[3]In its decision, the RRT set out the constituent elements of the definition of a refugee (CB108 to 110), summarised the claims and evidence before it including “country information” concerning human rights in Uganda and the position of the LRA (CB110 to 120) and then set out the findings and reasons of its decision (CB120 to 122). In summary, the RRT affirmed the delegate’s decision because it was not satisfied as to the applicant’s credibility. This means that there were no facts upon which it [could] conclude that he had a genuine fear of persecution (CB120.6).
[4]The RRT considered the applicant’s description of his “claimed abduction, his captivity and his escape from the LRA to be most unconvincing in a number of aspects” with the result that they did not accept that he was “captured by LRA rebels on a trip to Gulu town and then escaped” (CB120.9). The reasons for this included:
(i)The RRT considered that his evidence in relation to his family circumstances and what occurred during his visit to Gulu town was “faltering, confused, and at times evasive” (CB121.4);
(ii)The RRT considered it significant that even though the applicant claimed to see his mother in Gulu on five occasions he apparently “did not know much about Gulu” (CB121.6);
(iii)The RRT considered the applicant’s claim that he was abducted by LRA as he alighted from a bus in Gulu town to be inconsistent with country information concerning the manner in which the LRA carried out abductions in outlying areas such as villages and camps (CB121.9);
(iv)The RRT considered the description of the activities escape as implausible (CB122.1).

Application for review of the Tribunal’s decision

On 2 November 2004 the applicant filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following ground:
“The grounds of my application are based on my experience when I went to visit my mum in Gulu, the northern part of Uganda which is a rebel infected area. I was [abducted] and later managed to escape. I later processed my visa application to Australia.
Am convinced that when I return back to Uganda, I will be either killed or forcefully taken back to the rebel camps since I know much about their operations. I was doing administrative work for them and all my contacts were taken including my former workplace and residential address. I can read, speak and write English, Luganda and Swahili. I arrived in Australia on 5 April 2004.”

The law

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].
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.

Submissions

The applicant appears self represented and is competent in the English language. The applicant attended a directions hearing on 11 November 2004 where Short Minutes of Order were issued by consent with the applicant agreeing to file and serve an amended application together with complete particulars of each ground of review to be relied upon by 28 February 2005. The applicant also participated in the Pilot RRT Legal Advice Scheme (NSW) and was provided advice by the panel member on 7 February 2005. The applicant failed to comply with the orders made at the directions hearing and did not file any written submissions prior to the hearing.
Counsel for the respondent filed written submissions prior to the hearing which were supplemented by oral presentations during the hearing.

Reasons

When the applicant was invited to make oral submissions in support of his application, he spoke briefly regarding the vaccination certificate and the circumstances in which the applicant obtained the certificate to enable his travel. The vaccination certificate was referred to by the Tribunal but does not form part of the reasons for the decision and does not represent any detriment to the applicant’s position. The vaccination certificate’s status is addressed in more detail in the respondent’s submissions and an explanation is given as to why the certificate is not central to the decision making process of the Tribunal.
The applicant also indicated that he was disappointed with the Tribunal hearing and wanted to be provided with a further opportunity to put a more substantive presentation to the Tribunal in support of his visa application. He referred to the difficulty he was experiencing as a self represented litigant and was concerned that he was not able to convey to the Tribunal essential elements of his case.
Mr Beech-Jones, Counsel for the respondent, submitted that the application for judicial review did not set out any established grounds for that review but instead took issue with the merits of the Tribunal’s decision. With one possible exception, the Tribunal’s decision turned upon its assessment of the applicant’s credibility and, in particular, the plausibility of his story when compared with the Tribunal’s understanding of the country information concerning the activities of the Lord’s Resistance Army (LRA). The respondent submitted and

I accept the submission that these are matters of fact which were purely for the decision maker: Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham per McHugh J at [67].
The respondent submitted that there was a possible exception in the Tribunal’s reasons in the following statement:
“The Tribunal also notes that the Applicant’s International Vaccination Document indicates that the Applicant attended a medical centre in Kampala on the 2 March 2004 at the time in claimed to be a captive of the LRA in Gulu [sic]”. The Tribunal is unconvinced by the applicant’s claim that this document is a forgery obtained purely for the purposes of enabling him to travel overseas.” (CB121.7).
The vaccination document is to be found at CB pp.41-44 and was provided to the Department with the applicant’s original protection visa application.
Mr Beech-Jones submitted that the applicant was in the position to claim that as a consequence of the decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 and Minister for Immigration & Multicultural & Indigenous Affairs v
Al Shamry there was a contravention of s.424A(1) of the Act concerning this finding. The Tribunal did not advise the applicant in writing that it proposed to rely upon the document produced by him to the delegate: see NAZY v Minister forImmigration & Multicultural & Indigenous Affairs.
Mr Beech-Jones submitted that such a contention should not be accepted because on the proper construction of the Tribunal’s reasons the vaccination document did not form a reason or part of a reason for the Tribunal affirming the delegate’s decision: SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs per Lindgren J at [20]-[24]; VAF v Minister for Immigration & Multicultural & Indigenous Affairs per Finn, Merkel and Stone JJ at [24(iii)].
[24]As to the first of these, there is now a considerable body of case law concerned with the compass of the term "information" in its s 424A(1) setting. The following propositions emerge from it:
(i)…
(ii)…
(iii) the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; appr [2002] FCAFC 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26] – [29].
Mr Beech-Jones submitted that the Tribunal noted the contents of the vaccination certificate and stated it was unconvinced by the applicant’s explanation. However, it was submitted that only meant the Tribunal was equivocal as to the significance, if any, of the medical certificate and the explanation. It was submitted the balance of the Tribunal’s findings involved an emphatic rejection of the applicant’s credit. Those findings were in strong contrast to the equivocal statements concerning the vaccination document.
The international vaccination document was submitted to the Department with the applicant’s original protection visa application and contains an entry on the certification page for vaccination against yellow fever and vaccination against cholera. Both of these vaccinations were authorised by a medical officer in Kampala, Uganda. There were two brief references to the document in the Tribunal’s decision under the heading, “Claims and Evidence”. Firstly, it was briefly referred to in the report of the hearing:
“The applicant was asked about the international certificate of vaccination that was attached to his protection visa application. He stated that this certificate was a requirement for his visa to pass through South Africa. The applicant stated that his boss had got this international certificate of vaccination for him, but that in fact it was not a valid or true document. He stated that it was blank and that he and the boss had filled in the details.” (CB p.112)
The vaccination document was referred to again at the Tribunal hearing:
“The Tribunal also put to the applicant that the Tribunal was not convinced that the immunisation document was in fact a false document, given that it had a medical stamp on it. The applicant stated that his boss was paid 5,000 Ugandan shillings for a bribe to be able to put in the details. The Tribunal also pointed out that this immunisation form showed the applicant in Kampala on

2 March 2004. The applicant once again stated that this was a false document.” (CB p.116)
Further, in the “Findings and Reasons” the document was referred to:
“The Tribunal also notes that the applicant’s international vaccination document indicates that the applicant attended a medical centre in Kampala on 2 March 2004 at the time [he] claimed to be a captive of the LRA in Gulu. The Tribunal is unconvinced by the applicant’s claim that this document is a forgery obtained purely for the purpose of enabling him to travel overseas.” (CB p.121)
Where an applicant is self represented the Court must independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors. The original pleadings do not identify any ground of judicial review and although the applicant consented to orders to file an amended application, this has not occurred. The applicant was also provided with the opportunity to participate in the Court’s sponsored legal advice scheme which he has done but no further pleadings or submissions have been filed subsequent to that conference.
In the absence of any pleaded grounds or submissions, I have considered the material made available in the Court Book together with the Tribunal’s decisions. It is not apparent on the face of those documents that the Tribunal has made a jurisdictional error. Considerable emphasis has been placed on the international vaccination document supplied by the document which he claimed was a forgery but was obliged to be in possession of such a document in order to enable his transit through South Africa to make the appropriate flight connections to Australia. The Tribunal formed the view that it was unlikely the document was a forgery as claimed by the applicant. The Tribunal made references to the existence of the document and the associated claims by the applicant in respect of it, however the Tribunal has not treated its existence with any significance in relation to the outcome of the decision. After considering the submissions by the applicant and the document, the Tribunal has put it to one side and treated it as having no weight in the final decision.

Conclusion

I have not been able to identify any ground that the Tribunal has committed jurisdictional error. The applicant’s claim should be dismissed.
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-seven (27) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 16 December 2005