SZHBA v Minister for Immigration

Case •

[2005] FMCA 1862

•

15 December 2005

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHBA v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1862

MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of Syria claiming well-founded fear of persecution – delay – decision handed down on 23 September 2004 – application for review not filed until 31 August 2005 – credibility – inconsistency between Applicant’s oral evidence and written claims – inconsistency between pieces of information not of itself “information” for the purposes of s.424 or s.424A of the Migration Act 1958 (Cth).

MIGRATION – Ambit of s.422B of the Migration Act 1958 – operation of s.422B – proper construction of ‘in relation to matters it deals with’.

PRACTICE & PROCEDURE – Objection to competency – unnecessary to make finding where application dismissed on a final basis. 

Judiciary Act 1903 (Cth) s.39B
Migration Act 1958 (Cth) ss.422B, 424, 424A, 477(1A)

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
VEAJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003 132 FCR 291
Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration & Multicultural & Indigenous Affairs (1998) 86 FCR 547
W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Abebe v Commonwealth (1999) 197 CLR 510.
SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493
NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456
Wu v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 221
SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514
WAGP v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276
SZEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138
SZERV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1221
SZCLR v Minister for Immigration & Anor [2005] FMCA 1646
SZGAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1785
SZBDN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 656

Applicant: SZHBA
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File No: SYG 2429 of 2005
Delivered on: 15 December 2005
Delivered at: Sydney
Hearing date: 9 December 2005
Judgment of: Scarlett FM

REPRESENTATION

Solicitor for the Applicant: Mr El Hanania
Solicitors for the Applicant: Hopper & Co
Counsel for the Respondent: Mr Reilly
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. That the application is dismissed.

  2. That the Applicant is to pay the First Respondent’s costs fixed in the sum of $ 5,000.00.

  3. I allow four (4) months to pay.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2429 of 2005

SZHBA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Application

  1. This is an application for review of a decision of the Refugee Review Tribunal that was made on 30th August 2004 and handed down on 23rd September that year. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant the Applicant a protection (class XA) visa.

Background

  1. The Applicant, a Syrian citizen, relevantly arrived in Australia on 6th February 2002. He lodged a valid application for a protection visa on 20th May 2003, claiming a well-founded fear of persecution on the grounds of his political opinions. He claimed he would be harmed or killed by unscrupulous money lenders who were sponsored by the Syrian government. He said that the authorities in Syria would not protect him because he supported the opposing parties.

  2. The Applicant gave oral evidence to the Refugee Review Tribunal on 11th August 2004. He told the Tribunal that he had never borrowed money from unscrupulous money lenders, he had only signed as a witness when his brother had borrowed money. After the Tribunal member told the Applicant that she had serious doubts about his credibility as a witness, she allowed him to provide further supportive material by 20th August 2004.

  3. The Applicant’s migration adviser forwarded copies and translations of a number of documents to the Tribunal on 23rd August 2004. Although the documents were provided after the date specified by the Tribunal, it is apparent that the Tribunal did consider them.

The Refugee Review Tribunal’s Decision

  1. The Tribunal was satisfied that the Applicant was a citizen of Syria who was outside his country. At page 141 of the Court Book,  the Tribunal was not satisfied about the Applicant’s credibility:

    At the hearing before the Tribunal, the applicant changed his claims in such a fundamental way which left the Tribunal with the impression that he has hastily fabricated his claims. The Tribunal notes the inconsistencies between the applicant’s oral testimony and his written applications detailing his claims. In his oral testimony, the applicant was quite specific that he did not borrow any money; yet in his written testimony, this was the most fundamental claim upon which the applicant’s claims of harm were based. 

  2. The Tribunal was not satisfied that the Applicant or his brother had borrowed money or had been involved in investment activities in which any person associated with the Syrian government was involved. The Tribunal could not accept that the Applicant had suffered any harm as a consequence of alleged investment activities. The Tribunal was not satisfied that the Applicant had suffered any difficulties in Syria because of his religion, or that he had suffered any employment difficulties.

  3. The Tribunal found that there was no Convention-related reason why the Applicant could not return to Syria. The decision of the delegate not to grant a protection visa was affirmed.

The Amended Application

  1. In an Amended Application, the Applicant originally sought relief on the grounds that the Tribunal had misconstrued both sections 424 and 424A of the Migration Act 1958. At the hearing, the Applicant sought only to rely on the s.424A ground.

Submissions

  1. The Applicant submitted that the Tribunal misconstrued s.424A of the Migration Act by not seeking further information which was adverse in particular to the issue of credibility of the Applicant as it was not supported by probative evidence and was so unreasonable (that) no reasonable Tribunal could have made (the decision)[1].

    [1] Applicant’s outline of submissions, paragraph 4.

  2. The breach of s.424A is described in paragraphs 9 to 12 inclusive of the Applicant’s submissions. The Tribunal rejected the credibility of the Applicant and the Tribunal made the following observations at page 12 of the decision (page 142 of the green book):

    The Tribunal finds it incredulous[2] that given the significance of his new allegations…the claims are so fundamentally different casting serious doubts on the Applicant’s credibility. In his oral testimony, the Applicant said that the differences in the claims are due to language and communication difficulties…

    [2] sic

  3. Moreover the Tribunal observed at page 12 of the decision that:

    The vague notations on the receipt that “This amount was entrusted with me till it is requested” say nothing about investment and do not explain in any way the terms or conditions…

  4. The Tribunal did not put information to the Applicant in accordance with section 424A (1) of the Act in order to give the Applicant the opportunity to comment on the adverse information.

    (The) Tribunal failed to invite the Applicant in writing to comment on information which was adverse and therefore pursuant to SAAP v MIMIA [2005] HCA 24 (18 May 2005) and s.424a. Concluding to a breach of section 424A which amounts to jurisdictional error concluding that the decision is invalid as the decision had breached the rules of procedural fairness.

  5. The submission continues that the obligation under s.424A(2)(b) of the Act is mandatory so that the failure to provide to the Applicant in writing particulars of the adverse material and failure to give an invitation to comment upon that material amounts to a breach of s.424A. The Tribunal cannot discharge its obligation by giving to an applicant oral particulars of the information in the course of the hearing. The Tribunal is obliged to give both the particulars of the information and an indication of the relevance of that information by one of the means specified in s. 441A of the Act (see VEAJ v MIMIA (2003) 132 FCR 291 at 301-2).

Conclusions

  1. It is clear that the Tribunal was not satisfied that the Applicant was a credible witness and found that he had fabricated his claims (see at paragraph 5 above). The Tribunal did not accept any of the Applicant’s claims. The Tribunal noted that the Applicant had delayed in applying for a protection visa. The Applicant explained the delay by saying that he had come to Australia on a visitor’s visa and later made an unsuccessful application for permanent residence. The Tribunal was, however, satisfied that the delay (over a year) in lodging his application for a protection visa supports a finding that he did not have a genuine fear of persecution[3].

    [3] See at page 143 of the Court Book.

  2. It is well established that findings as to an applicant’s credibility are matters of fact par excellence (see Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407, per Mc Hugh J at [67]). There is no error as long as the Tribunal’s credibility findings were open to it (see Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558-9; W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 at [64-69]). I am satisfied that it was open to the Tribunal to make the findings that it did.

  3. A court conducting judicial review cannot review the merits of the Refugee Review Tribunal’s decision (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272). Even if the Tribunal makes a wrong finding of fact, this is not a jurisdictional error (Abebe v Commonwealth (1999) 197 CLR 510 at [137]).

  4. This is a matter to which s.422B of the Migration Act applies. This means that the Tribunal’s obligation to provide material to an applicant is that set out by s.424A of the Act (see SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493 at [15] –[18], where Branson J followed the judgments of Lindgren J in NAQF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 456 at [59]-[60] and Hely J in Wu v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 221 at [23], and also SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514 at [29]).

  5. It appears clear, as Edmonds J stated in SZEGT (supra at [29]) that the words ‘in relation to the matters it deals with’ in s.422B are not confined to the exact text of the procedural fairness requirements to be found in Division 4 of the Act but extend to something wider. Thus, in this case, the Tribunal’s obligation to provide material to the Applicant is set out in s.424A.

  6. It is clear that one of the reasons for the Tribunal’s disbelief of the Applicant’s evidence was the inconsistency between the Applicant’s oral evidence and his written claims:

    At the hearing before the Tribunal, the applicant changed his claims in such a fundamental manner which[4] left the Tribunal wit the impression that he has hastily fabricated his claims.[5]

    [4] sic

    [5] See Court Book page 141.

  7. This inconsistency is not “information” that constituted the reason or part of the reason for the Tribunal’s affirming the decision under review for the purposes of s.424A of the Migration Act. Whilst the inconsistency between the pieces of information was a reason for the Tribunal’s taking an adverse view of the Applicant’s credibility, it was not any part of the information per se. It has been held by the Full Court of the Federal Court that a conclusion by the Tribunal that there was inconsistency between two pieces of information was not of itself “information” for the purposes of s.424(1) (WAGP v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 276).

  8. Similarly, the word “information’ in s.424(1) is used in the same sense as it is used in s.424A(1) (per Lindgren J in SEKY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1138 at [20] – [24]; see also SZERV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1221, followed by Nicholls J in SZCLR v Minister for Immigration & Anor [2005] FMCA 1646 at [16]).

  9. It follows that the inconsistency between the Applicant’s original claims and his oral evidence to the Tribunal was not ‘information’ caught by the provisions of s.424A of the Act. It is a conclusion that it was open to the Tribunal to draw.

  10. There is no jurisdictional error. The decision is a privative clause decision that attracts the protection of s.474.

  11. The Respondent Minister has filed a Notice of Objection to Competency, on the basis that the application for judicial review was not filed until 31st August 2005, whilst the Tribunal decision was handed down on 23rd September 2004. This is well outside the 28 day time limit prescribed by s.477(1A). As I have found that the decision is a privative clause decision under s.474 and the application will be dismissed on that basis, it seems hardly necessary for me to find that the application is incompetent. The order of dismissal that I make is intended to be a final order, not an interlocutory order.

  12. With respect, I follow what was said by Lindgren J in SZGAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1785 at [1], where he adopted what was said by Hely J in SZBDN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 656 at [17]:

    Section 477(1A) is, in the light of s 477(2), a matter which goes to the jurisdiction of the Federal Magistrates Court. However, given the decision in Plaintiff S157/2002 I am unable to perceive what practical benefit is achieved by the filing of a Notice of Objection to Competency if the substantial merits of the appeal have to be determined in order to determine the objection as to competency.

  13. In the circumstances, it seems to me to be both unnecessary and confusing to make the finding as to competency sought by the Notice of Objection to Competency.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  Virginia Lee

Date:  15 December 2005


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