SZFCN v Minister for Immigration

[2005] FMCA 858

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFCN & ANOR v MINISTER FOR IMMIGRATION [2005] FMCA 858

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal had no evidence before it or ignored relevant considerations. 

Migration Act 1958, ss.44A, 44A(1) and 424A(3)(a)

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Minister for Immigration & Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
Minister for Immigration & Multicultural Affairs v Al-Shamry (2001) 110 FCR 27
M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
VUAX vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158
NAIH of 2002 vMinister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 223
Minister for Immigration & Multicultural & Indigenous Affairsv Hettiarchchige [2005] FCA 37

Applicant: SZFCN & ANOR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 3450 of 2004

Judgment of: Barnes FM

Hearing date: 14 June 2005

Delivered at: Sydney

Delivered on: 14 June 2005

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondent: Mr D Jordan

Solicitors for the Respondent: Blake Dawson Waldron

ORDERS

1. That pursuant to Rule 11.01(2) of the Federal Magistrates Court Rules the Refugee Review Tribunal be joined to the proceeding as the second respondent.

2. That the application is dismissed.

3. That the Applicant pay the Respondent's costs fixed in the amount of $4,400. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3450 of 2004

SZFCN & ANOR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 26 October 2004 affirming a decision of a delegate of the respondent not to grant protection visas to the applicants. 

2. The applicants are husband and wife and citizens of Mongolia.  They arrived in Australia on 21 February 2004 and sought protection visas.  Only the husband made specific claims for asylum.  No specific Convention claims were made by or on behalf of the applicant wife.  The applicant husband provided a statement in support of his protection visa application in which he claimed to fear persecution in Mongolia for reason of his political opinion. 

3. He claimed to have been an active member of an organisation known as the ‘New Leaders Club’ since 1998 and to have agitated against the Mongolian People's Revolutionary Party (the MPRP).  He claimed that he had been warned by an officer of the National Security Service that he might face serious consequences such as prosecution for drug dealing or child molestation if he continued his political activities. 

4. The application was refused by the Department and the applicants sought review by the Tribunal.  The Tribunal's reasons for decision record that the applicants resubmitted their statement of claims with the review application.  The Tribunal accepted that the applicant husband (hereafter referred to as ‘the applicant’) was a citizen of Mongolia but found that he was not a witness of credit in relation to his key claims, that he had not been persecuted in Mongolia and that he did not have a well founded fear of persecution within the meaning of the Refugees Convention if he returned to Mongolia. 

5. The Tribunal rejected the applicant’s claims in relation to membership of the New Leaders Club and his claimed political activities because of factors such as the vagueness of his evidence, inconsistencies between his written claims and his oral evidence about his activities and the ramifications of such activities, the confusion and extreme vagueness of some of his oral evidence and because it found his claims were not supported by independent country information.    

6. The Tribunal addressed specific areas of concern about the applicant’s evidence and relevant country information, such as the absence of any evidence that the New Leaders Club existed and independent country information which was contrary to the applicant’s claims that members of such groups would be persecuted because of their activities.  It also detailed the inconsistencies, hesitancies and confusions between the applicant’s written and oral evidence.  I note in that respect that the only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision. 

7. In the alternative however, the Tribunal considered the applicant's circumstances on the assumption that he was a political activist with the New Leaders Club and/or for the Democracy Party or against the MPRP.  It was not satisfied that the applicant had a well-founded fear of persecution because it accepted recent independent information that the MPRP had moved from being a staunchly Communist party to more of a social democratic party and was in a coalition Government with the Democratic Coalition which was headed by a former dissident who had been involved in the campaign to end the MPRP’s one party rule.  It also had regard to country information which did not suggest that political activists were persecuted for reason of their political opinion or activities.  It was not satisfied that the applicant had a well founded fear of persecution if he returned to Mongolia.  As the fate of the applicant wife's application depended on the outcome of the applicant husband's application it followed that she could not satisfy the criteria for a protection visa. 

8. The applicant and his wife sought review of the Tribunal decision by application filed in this court on 24 November 2004.  That application contains two grounds.  The applicant has not filed any written submissions and despite being given the opportunity to do so, made no oral submissions at all to the court today either in support of his claims or in response to the oral and written submissions of the respondent. 

9. Nonetheless I have considered on the material before me whether the grounds raised by the applicant or the material before me reveal jurisdictional error.  In that respect I am assisted by the submissions of counsel for the respondent who, despite the brevity of the application and the absence of any submissions from the applicant, addressed not only the grounds in the application but also any other possible grounds in light of the High Court decision in SSAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24.

10. The first ground in the application is that the Tribunal “had no evidence before it to make any justification whether I was a member or leader of the New Leaders Club or that I was not a political activist, or that I not suffered persecution for reason of my political opinion.” 

11. The second ground is that “The Tribunal ignored materials relevant to my claims and therefore reached a mistaken conclusion that I have no well-founded fear and have not faced harm in the past and will not be subject to persecutions in the future.” 

12. Neither of these grounds establishes jurisdictional error. 

13. The applicant failed essentially because the Tribunal did not accept his credibility.  Credibility is a matter for the Tribunal itself par excellence (Minister for Immigration & Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407). The Tribunal findings were open to it on the material before it for the reasons that it gave and no error is demonstrated in its approach. The rejection of the applicant’s key claims was open for the reasons given by the Tribunal. Moreover the Tribunal provided an alternate basis for the rejection of the applicant’s claims to have a well founded fear of persecution on the assumption that he was a political activist and such findings were also open to the Tribunal on the country information to which it referred.

14. As to the specific claims of the applicant, it cannot be said that the Tribunal had no evidence before it to make its findings in relation to whether the applicant was a member or leader of the New Leader's Club or a political activist.  It relied not only on an absence of evidence as to the existence of the New Leader's Club, but also on material in the form of the applicant's own written and oral evidence before the Tribunal which led it to reject the claims of political activism as inconsistent and unconvincing.  It also had before it contrary independent country information.  The Tribunal records that it provided the applicant with an opportunity to comment on the country information and inconsistencies in his written evidence to the Tribunal and his oral evidence during the Tribunal hearing. 

15. The second ground (that the Tribunal ignored materials relevant to the applicant’s claims) has not been particularised and the applicant has not taken the opportunity given to him in this hearing to elaborate on precisely what was meant by this ground. 

16. It is apparent from the material before the court that the applicant provided the Tribunal with his original written statement (which the Tribunal addressed) and that some independent information was provided to the Tribunal or was before the Tribunal prior to the decision.  It is not necessary for the Tribunal to refer expressly to every item of evidence before it and the weight to be given to particular items of independent country information is a matter for the Tribunal.  No error is established in the Tribunal consideration of the materials before it. 

17. The grounds of the application do not raise any question of compliance with section 424A of the Migration Act 1958.  However, given that the applicants are unrepresented and in light of the recent High Court decision in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs counsel for the respondent addressed such issues.  There are a number of reasons why, in contrast to the circumstances in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24, the provisions of section 424A(1) of the Migration Act 1958 have not been shown to apply or to have been breached in the present case. First, subsection 424A(1) does not apply to the country information relied on by the Tribunal because such material falls within section 424A(3)(a) (see Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264).

18. Secondly, while the Tribunal did rely on inconsistencies between the applicants written claims in the statement accompanying his protection visa application and his oral evidence to the Tribunal, in this instance the written statement was re-submitted to the Tribunal with the review application and adopted in the Tribunal hearing. Hence both the written claims and the oral evidence were provided by the applicant for the purposes of the review proceedings before the Tribunal and therefore, if section 424(1) is applicable, the information is within the exception in section 424A(3)(b) being information that the applicant gave for the purpose of the application: see Minister for Immigration & Multicultural Affairs v Al-Shamry (2001) 110 FCR 27 at [17] to [18] and [35] to [41] and M55 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 131 at [22] to [25].

19. Finally, the Tribunal provided a separate alternative basis for its decision, on the assumption that the applicant was a political activist as claimed. This alternative finding was based on independent information within section 424A(3)(a) and did not have recourse to any inconsistencies affecting the applicant’s evidence. Hence, even if (contrary to my view) section 424(A)(1) was applicable in relation to inconsistencies between the applicant’s written and oral evidence such inconsistencies were not in any sense the basis for the alternative reason for the Tribunal's decision. In that sense any inconsistent information could not be said to be ‘the reason or part of the reason’ for the Tribunal's decision: see VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [28] – [41], VUAX vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [50] – [54], NAIH of 2002  vMinister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 223 at [16] and Minister for Immigration & Multicultural & Indigenous Affairsv Hettiarchchige [2005] FCA 37 at [63] and [67].

20. As no jurisdictional error has been established, the application must be dismissed.

RECORDED   :   NOT TRANSCRIBED

1. The applicant has been unsuccessful.  There is nothing in the circumstances before me to warrant a departure from the normal rule that the unsuccessful applicant should meet the costs of the respondent.  The amount of $4,400 which is sought is appropriate in light of the nature of this and other similar matters. 

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  28 June 2005.