SZGBQ v Minister for Immigration - [2006] FMCA 1463

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGBQ v MINISTER FOR IMMIGRATION

[2006] FMCA 1463

MIGRATION – Review of RRT decision − where applicant made different claims of persecution in his application and at the Tribunal hearing − where Tribunal found the applicant not to be credible on the basis of information given at the hearing − whether findings of the Tribunal were illogical.

Migration Act 1958, ss.424A, 425

Applicant:

SZGBQ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File Number:

SYG899 of 2005

Judgment of:

Raphael FM

Hearing date:

28 September 2006

Date of Last Submission:

28 September 2006

Delivered at:

Sydney

Delivered on:

28 September 2006

REPRESENTATION

Applicant in Person

Solicitors for the Respondent:

Ms T. Quinn
Phillips Fox

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG899 of 2005

SZGBQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant claims to be a citizen of Malaysia, a fact accepted with some hesitancy by the Tribunal. He arrived in Australia on 6 June 2003. On 18 June 2003 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 23 July 2003 a delegate of the Minister refused to grant a protection visa and on 19 July 2003 the applicant applied for a review of that decision. After initially advising the Tribunal that he did not wish to attend a hearing, the applicant attended upon the Tribunal on the day originally fixed. Because the Tribunal did not have an interpreter available, a hearing was re-fixed for a few days later, and the applicant attended. On 4 December 2003 the Tribunal determined to affirm the decision not to grant a protection visa and handed down that decision on 7 January 2004.
In his initial application, the applicant had told how he was a Sikh, although he had been born in Selangor, Malaysia. He claimed that he had lost his job as a mechanic because a Bumiputra had been placed in that position by his employer. He had complained about this matter to the police, but this only led to him being thrown into gaol for a few days. He claims that he made a further complaint to the state authorities as a result of which he was further harassed by the police and traumatised. He left Malaysia for the United Kingdom, and stopped in India on the way. He did not like the climate in England and returned to Malaysia, from where he travelled to Australia.
At the hearing before the Tribunal, the applicant gave an entirely different story. He told the Tribunal that he had been in a bar watching the television coverage of the arrest of the Bali bombers. He had made certain remarks which had infuriated the Muslim men who were also in the bar. He was set upon by a gang of Muslim men. They assaulted him, broke a tooth, stabbed him and robbed him of his ID card and driver’s licence. It was because he was in fear of these men that he left for the United Kingdom. Whilst he was there they had come to his sister’s house and threatened him and his family. He could not return to his home or his place of work, because if he did the men would find him and kill him. He could not move elsewhere in Malaysia, because if he did so they would also find him. He was unable to identify the men.
This is not one of those cases where the Tribunal makes a finding concerning the applicant’s credibility on the basis of a discrepancy between the story that he tells to the Tribunal and the story that is contained in his application for the protection visa. It is well understood now that in such a case there is generally a requirement under s.424A of the Migration Act 1958 (the “Act”) to provide the applicant with details of this ‘information’ if it is the reason or part of the reason for the Tribunal affirming the decision under review.
In this case, however, the lack of credibility found by the Tribunal was associated clearly with the story told to the Tribunal by the applicant on the day. As the Tribunal says at [91] in its findings and reasons:
“The applicant’s claim that the assault on him happened in conjunction with his watching television coverage of the arrest of a suspect in the Bali bombings is ridiculous to believe when the dates are considered. He claims that this assault occurred two or three months prior to his obtaining his passport. The Bali bombing occurred on 12 October 2002. He obtained his passport on 26 October 2002, and said that he requested it a week before. It is obvious that the assault could not therefore have occurred as mentioned by him or in the time frame as claimed. I find that he had fabricated this connection. I find that the applicant is not a credible witness. I do not accept any of his claims as being true.”
In addition to this finding in relation to the applicant’s credibility, the Tribunal also concluded that the applicant did not have a well-founded fear of persecution for the Convention reason of religion or political opinion, because:
“I do not accept as reasonable that someone who fears harm in relation to Malaysia would return there after fleeing overseas to India and the UK. The fact that he returned indicates that he does not have a fear of harm in Malaysia.” [CB 92]
In his amended application filed with the court on 4 July 2005, the applicant suggests that the Tribunal did not properly consider the persecution he suffered from Muslims and the government in Malaysia because of his ethnicity. However this is the first time that this problem was mentioned. It was not the case that the applicant put to the Tribunal at the hearing. Or more accurately, perhaps, there was no separate claim divorced from the applicant’s fear of these unnamed Muslim gang members.
The applicant argues that the Tribunal’s failure to be satisfied that he was a refugee was not based upon reasoning which provided a rational or logical foundation for this belief. I take a contrary view. It seems to me that the arguments put forward by the Tribunal for both disbelieving the applicant’s story and taking the view it did about the well-foundedness of his alleged fear both proceed on a logical basis, the foundation for which was the implausible story that he gave and his decision, after allegedly fearing for his life, not to remain in the United Kingdom, a country where he could have made an application for asylum.
The applicant also argues that the Tribunal did not observe the Act. Regrettably, he does not provide us with any particulars of the manner in which that failure occurred. In the absence of such particulars, I do not think it is appropriate for me to hazard some guess as to what he might have been saying, but the Minister in her written submissions accurately suggests that there could not have been any breach of s.425 as the applicant was granted the hearing that he at first declined and s.424A was not called into operation as already discussed.
Finally the applicant argues that the Tribunal failed to consider his claim in the proper way, but this is an argument without any basis if one reads the decision and the transcript of the hearing, which was attached to an affidavit of Therese Mary Quinn dated 20 September 2006.
I am unable to find any grounds upon which it could be said that the Tribunal fell into jurisdictional error in the manner in which it reached its decision in this case. I dismiss the application. I order that the applicant pay the respondent’s costs, which I assess in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) Federal Magistrates Court Rules 2001.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM.

Associate:

Date: