SZHCN v Minister for Immigration
[2006] FMCA 531
•06 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHCN v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 531 |
| MIGRATION – RRT decision – Armenian claimed political persecution – disbelieved by Tribunal – inconsistent information presented to Australian embassy when obtaining visitor’s visa – adequacy of s.424A letter – no error found. |
Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B, 424A(1), 424A(1)(a), 424A(1)(b), 424A(1)(c), 474(1), 483A, Part 8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1
Dissananayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 976
Elrifai v Minister for Immigration & Anor [2005] FMCA 1484
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NATL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 112
Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82
Win v Minister For Immigration & Multicultural & Indigenous Affairs (2001) 105 FCR 212
| Applicant: | SZHCN |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2551 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 06 April 2006 |
| Delivered at: | Sydney |
| Delivered on: | 06 April 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in Person |
| Counsel for the First Respondent: | Ms T Quinn |
| Solicitors for the Respondents: | Phillips Fox |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,200
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2551 of 2005
| SZHCN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 12 September 2005 under s.483A of the Migration Act 1958 (Cth), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal dated 20 July 2005 and handed down on 16 August 2005. The Tribunal affirmed the decision of a delegate which refused to grant a protection visa to the applicant.
Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth) s.8).
The Court's powers under s.483A are the same as the Federal Court jurisdiction under s.39B of the Judiciary Act 1903 (Cth). Both are subject to limitations under Pt 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's refugee claims should be believed, nor whether he qualifies for a protection visa.
The applicant arrived in Australia in August 2004 on a temporary business visa. On 29 September 2004 a migration agent lodged an application for a protection visa on his behalf. The same agent has actively assisted the applicant in subsequent proceedings before the Tribunal and in this Court.
The form of application said that the applicant was granted a short stay business visa in Moscow. It said he had university qualifications in Armenian language and literature, and that his employment was that of a businessman. A statement of the applicant's claims signed by the applicant's agent, said that he had been an active member of a political party, the PPA, in Armenia since 1999, and had assisted the party by providing financial support and taking part in "various actions by distributing pamphlets, leaflets etc." His party was in opposition to the government party before and after elections in 2003 and 2004 which, as was confirmed by country information, were regarded as being flawed.
The applicant claimed that he had been arrested and detained in the course of widespread demonstrations against the government of Armenia during March and April 2004. In detention, he had been "repeatedly physically and verbally abused." He was released under the condition not to leave the city after "the bond" was paid by his relatives. The applicant claimed to have been charged in a Court, and to have been subjected to improper audits by the taxation authority. He claimed: “the applicant had no other options but to give away his businesses and go into hiding”.
The agent’s "Claims & Evidence" document concluded:
14. The applicant wishes to stress he has always been a law-abiding citizen. Additionally, having extensive experience in running his own business he has constantly been very accurate in dealing with taxation matters. However, taken into account numerous incidents of human rights violations in Armenia, corruption among authorities and law-enforcement agencies, known and documented facts of politically-motivated repressions of members of opposition parties during this particular period of time, and finally his own experience in detention and after, the applicant was of the view that the authorities would make up any documentation and press fabricated charges against him.
15. From May until the very departure the applicant was hiding at his relative’s place. In July 2004, he made his decision leave Armenia. In the beginning of August the application for an Australia visa was lodged with the Australian embassy in Moscow. As soon as the visa was granted and he received his passport from the embassy the applicant left Armenia.
The only documentary corroboration of the applicant's claims which was presented to the Department of Immigration, and subsequently to the Tribunal, was a facsimile transmission copy of what was claimed to be a membership card for the political party which the applicant claimed to support. The agent also presented extensive country information and submissions concerning the situation in Armenia, but it is unnecessary for me to describe that material.
A delegate refused the application on 4 March 2005. In his statement of reasons the delegate commenced by saying: “I have considered the applicant's claims and have concerns about their credibility because of their vagueness and implausibility.” The concerns were then further explained.
The applicant's agent lodged an application for review by the Refugee Review Tribunal on 17 March 2005, attaching a copy of the documents previously given to the Department but no further material.
The applicant and his agent attended a hearing on 10 June 2005, which had been adjourned once at the request of the applicant on medical grounds. A transcript of the hearing is not in evidence before me, nor is there any affidavit evidence from the applicant or his agent as to what happened. The only evidence I have is a description by the Tribunal in its statement of reasons.
The Tribunal referred at the commencement of its description to evidence given by the applicant concerning how he obtained his temporary visa. It said:
Mr [applicant] confirmed that in July 2004 he decided to leave Armenia, at the beginning of August 2004 his application for an Australian visa was lodged with the Australian embassy in Moscow and that it was granted by the end of August. He gave evidence that he had not gone to Moscow in person to arrange the visa. A “sort of” travel agent had done it, although he was unsure if such agents had to be licensed to conduct this sort of business. I asked him what documents he had provided to the agent in support of the visa application, and he said he had given him “all” his documents to take to Moscow.
The Tribunal then described evidence given by the applicant concerning his businesses in Armenia, his political activities and the harassment which he claimed to have suffered from Armenian authorities. The Tribunal also questioned the applicant about country information. At the end of the hearing, it recorded the following exchange:
I discussed with Mr [applicant] information provided to the Australian Embassy in Moscow in support of his application for a visa to enter Australia. I told him that it showed that he had been Head of the Biology Department at Vanevan University at the time he came to Australia. The 16th International Congress of Eye Research’s Conference Co-ordinator wrote to him at the university on 5 August 2004, and the head of the Vanevan Institute wrote a letter on his behalf to the Australian Embassy in Moscow dated 11 August 2004, saying he had been head of department since 2000. His employment and position were confirmed by the Embassy with that person (the rector of the Institute, Mr Davtyan). Mr [applicant] responded that he had done that because of his desperation to leave. He had not been comfortable about it. He had told everything to [his agent] Mr Volonski after his arrival in Australia. He indicated that he did not know why Mr Volonski might not have passed on that information to the Department or this Tribunal. I asked him how the letter dated 5 August 2004 from the conference organisers in Australia could have been received at Vanevan Institute and forwarded from there to the Australian embassy, if it was fraudulent. He responded that the agent in Armenia had dealt with all of it. I asked him why he had earlier given oral evidence that he himself had given all the supporting documents for his visitor visa to the agent. He responded that he had only given the agent his passport. I put to him that he had had an opportunity to tell the Tribunal at the beginning of the hearing that the agent had provided false documents to the Australian Embassy in order to get the visitor visa. He said that, in not doing so, he had been “careless”. I told him that I would send him a letter after the hearing about these matters, to which he could respond in writing.
The Tribunal did send a letter dated 14 June 2005 to the applicant's agent and the applicant, which said:
Your Application for Review
The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa.
The information is as follows:
·Your application for an Australian visa, lodged in Moscow, states that you were Head of the Biology Department at Vanevan University at the time you came to Australia. The 16th International Congress of Eye Research’s Conference Co-ordinator wrote to you at the university on 5 August 2004 and the head of the Vanevan Institute wrote a letter on your behalf to the Australian Embassy in Moscow dated 11 August 2004, saying you had been head of department since 2000. Your employment and position were confirmed by the Embassy with the rector of the Institute.
·In the statement of 28 September 2004 it was claimed that you were given a week to provide the Taxation Department with “all financial documentation”. At the Tribunal hearing you said that they had already taken that documentation, including original documents, item by item.
·In the same written statement it was claimed that you were “informed [you] would be tried in Court before June 2994” on “allegations” of “hooliganism, violation of public order, resistance to arrest etc”. At the Tribunal hearing you said you had not been informed that you faced these charges, but only charges relating to tax matters.
This information is relevant because the employment details given to the Australian Embassy differ from the employment history you have given in relation to your protection visa application, and also indicate that you were not in hiding before you left Armenia. These inconsistencies have the potential to cast doubt on the credibility of your claims to have had problems with the Armenian authorities for political reasons.
You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 7 July 2005
IF YOU DO NOT GIVE COMMENTS BY 7 JULY 2005 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE.
In response, the applicant's agent wrote to the Tribunal in a letter which is dated 5 July 2005 but has a facsimile receipt dated 1 July. In relation to the documents lodged with the Australian Embassy, the letter said:
1. I confirm that during our first meeting on 21 September 2004 [the applicant] advised me that some documents lodged with the Moscow embassy were not genuine. Furthermore I carefully assessed information provided by the applicant against country report information etc. and asked a number of questions regarding his past employment. Given the applicant’s detailed and consistent accounts I formed the view that he was a credible witness.
2. It is known that some travel agents (and even visa applicants) present the Australian immigration authorities with incorrect information to be able to obtain a visa to escape persecution. As to the precent case, the applicant’ application did state that he was the Head of the Biology Department at Vanevan University. I must repeat however, that the applicant stated in the first place that he had never worked at the University.
3. Moreover, if the applicant was not a credible witness he would not need to make up claims set out in his application. I am of the view that he would have had even more chances to succeed being the Head of the Biology Department at Vanevan University.
4. As to the fact that the applicant’s employment and position were confirmed, if someone had no problems to orange (fabricate) a letter to the Australian Embassy in Moscow (dated 11 August 2004), it would not be a problem to arrange ‘confirmation’ of the applicant’s employment.
In its statement of reasons, the Tribunal referred to the above history. It then summarised country information concerning the situation in Armenia in 2003 and 2004, largely accepting the general picture which had been presented by the applicant and his agent.
Under the heading, "Findings and Reasons" the Tribunal said that it was satisfied that the applicant was a national of Armenia. It said:
In light of the evidence from the US State Department (2005) I am satisfied that the PPA is a large, legal political party in Armenia. I am also satisfied that some members of the PPA were detained in April 2004 during protests, and that some were also assaulted by members of the security forces.
The Tribunal accepted that the applicant showed some familiarity with the events of April 2004 and the involvement of the PPA, but it said:
However, as that information is all in the public domain, I am unable to infer merely from his familiarity with it that he was a member of, and financial contributor to the PPA. I therefore considered other aspects of his evidence.
The Tribunal then referred to the applicant's claims, and noted that:
Apart from the applicant's assertions no evidence other than the party card had been submitted.
The Tribunal then addressed the evidence from the Australian Embassy in Moscow:
As to whether Mr (applicant) was employed as Head of the Biology Department at Vanevan Institute, I note that a letter purporting to be from its “rector”, Prof. G. Davtyan, dated 11 August 2004, to the Australian Embassy in Moscow contains details (including Institute address, telephone number, and name of the rector) which the Tribunal has established are the same as those on the “Agroweb Armenia” website (accessed 20 July 2005). According to the Case Notes issued by staff at the Embassy, Mr (applicant’s) “employment and position” were “confirmed with “rector of the Institute Mr Davtyan” on 24 August 2004 – that is, after receipt of the letter purporting to be from the Institute. I infer from this that Embassy staff contacted the university’s “rector” using the correct contact details for the Vanevan Institute. As Prof. Davtyan confirms that the applicant was employed at the Institute at that time, it is thus likely that he was. This casts considerable doubt on Mr (applicant’s) current claim that the documents relating to that employment were produced by an “agent” and that he was in fact the owner of several businesses rather than an employee of an academic institution. Therefore I have considerable doubt that those businesses were the target of a politically-motivated tax audit, or that Mr (applicant) was “in hiding” as a result last year.
The Tribunal then said:
Even if I'm wrong, and the above documents were fraudulent as he has claimed, the fact that he did not tell the Tribunal of this early in the hearing, when the matter of the documents provided to the Australian Embassy in Moscow was raised, may reflect a lack of frankness and openness on his part. In my view that may cast some doubt on his general credibility.
The Tribunal then referred to several other considerations which it thought relevant to assessing the credibility of his evidence. It considered his evidence about the Tax Department dealings, and concluded:
If (the applicant) was being investigated by the tax office last year, I cannot be satisfied that the real reason for that was his political opinion.
The Tribunal referred to the issue of an exit permit which enabled the applicant to leave Armenia, and said:
I infer from this that in April 2004 the authorities were not expecting to lay any charges against him.
The Tribunal then expressed a general conclusion about all of the applicant's claims:
In light of all these considerations I do not consider truthful Mr (applicant’s) claim to have been a member of the PPA, to have been involved in political demonstrations last year, or to have been the target of any harm by the authorities in 2004 because of a political opinion imputed to him.
For these reasons I cannot be satisfied that he faces a real chance of being persecuted in Armenia because of a political opinion imputed to him. The Tribunal finds that he does not have a well-founded fear of Convention-related persecution in relation to Armenia.
The contentions made in the applicant's original application have largely been duplicated in an amended application. This argues:
1. As it was set out in my initial application one of the reason to refuse my appeal was the Tribunal’s finding regarding my credibility. The Tribunal based its finding upon documents lodged in Moscow. The documents were as follows.
(i)information that I was the head of the Biology Department at Vanevan University;
(ii)a letter from the Coordinator of International Congress of Eye Research’s Conference;
(iii)a letter written by the head of the Vanevan University.
2. However, the presiding member did not give me the opportunity to examine these documents to verity its euthenics and/or comment upon information set out in these documents.
3. I would like to refer to matter SYG 2472 of 2003 (SZBXK v MIMIA). On 28 June 2005 the respondent consented to refer the matter back to the Tribunal. The applicant’s key argument was that the Tribunal did not give him the opportunity to examine documents referred during the course of the hearing an in the Tribunal’s post hearing letter sent to the applicant pursuant to s.424(A) of the Act.
4. Subject to s.424(A) of the Act, the Tribunal must give to the applicant particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review and ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and invite the applicant to comment on it.
5. Those documents were clearly critical and were specifically about me. Further more, as I never worked in the said University, never was the head of the Biological Department of the University and was not aware of information submitted in Moscow, I am of the view that it would be sensible to provide me with the copies of the documents. This would be the only way to ‘ensure that I understood the relevance of such information’.
6. The Tribunal failed to give me the opportunity to comment on credible and relevant informant, which was in breach of s.424A(1). In failing to do so, the Tribunal failed to observe the rules of natural justice.
7. In addition, I would like to refer to the matter of SZFVL v MIMIA [2005] FMCA 991. It was held that, ‘the presiding member deterred the applicant from introducing his evidence by leading the applicant at the hearing to believe that his claims had been accepted. In the circumstances it was procedurally unfair for the presiding member to make an adverse credibility finding based only upon the subjective opinion of the presiding member.’
8. I believe that the presiding member ‘followed the pattern’. During the course of the hearing I was under impression that she accepted my explanation in relation to the above said documents. This resulted in my inability to provide the Tribunal with further evidence, such as the Diploma that I graduated from the Medical College (not University). Then the Tribunal could contact the said college to verify the information.
9. I ask the court to remit the case back to the Tribunal for further determination.
The applicant was directed at a first Court date to file any evidence in support and written submissions prior to the hearing, but did neither of those things. He presented at the start of today's hearing a written submission, which he tells me was prepared with the assistance of his agent. This does not raise any new arguments, except those which I shall refer to later in these reasons after considering the applicant's central contentions. These were that there was a failure by the Tribunal to comply with a duty under s.424A(1) of the Migration Act, and alternatively that failures of procedural fairness affected the conduct of the Tribunal's hearing.
In relation to compliance with s.424A(1), it is unfortunate that neither the Court Book nor other evidence before the Court allows a clear finding as to what was the actual source document or documents, whether physical or electronic, from which the Tribunal gained its information as to the documents presented to the Australian Embassy and the activities of the Embassy in checking those documents. I have set out above the description of the source information provided by the Tribunal to the applicant in the course of the hearing and in its reasons. It is not clear that the Tribunal, in fact, had before it the letters which had been provided to the Embassy. It is possible that it had only a description of the letters and inquiries in a “case note” obtained from a cable or computer screen.
However, I am prepared to assume that somewhere within the possession or control of the Department of Immigration may have been the documents which had been presented on behalf of the applicant when obtaining his business visa, and notes of the procedures followed in the Embassy when obtaining "confirmation" from the Director of the academic institute as to the applicant's claimed position.
Section 424A(1) provides:
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
It was pointed out by the Full Court in NATL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 112 at [14]:
The obligation imposed by s424A of the Migration Act 1958 is to “give ... particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review...”. The significant phrase is “particulars of any information”. The section does not require the provision of evidence. The test is whether an applicant is fairly informed of the information considered to be adverse: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396. We think that identifying an informant by describing the person as the proprietor of a specified establishment is an adequate provision of particulars relating to that person.
In some cases, the objects of the section might only be able to be met by the actual provision of a copy of the source documents for the Tribunal's information. For example, where the Tribunal proposes to draw information from the appearance of a document which can not adequately be described in particulars. I discuss the general purposes of an invitation for comments in Elrifai v Minister for Immigration & Anor [2005] FMCA 1484 at [34] and following, and will not repeat that discussion here.
In my opinion, in the present case the Tribunal’s s.424A letter sufficiently identified particulars of the information gained from the Moscow Embassy, which was then used by the Tribunal in its reasons in the paragraphs I have set out above.
The gist of the information obtained by the Tribunal was clear. This comprised details of a claimed employment, the fact that letters had been given to the Embassy in corroboration of that employment, and that Embassy staff had "confirmed with the rector of the institute" the claimed employment and position. Those particulars were given to the applicant in the letter dated 14 June and, taking into account the circumstances surrounding the giving of the letter, including the agent’s response, I consider sufficient particulars were given to comply with the obligations of s.424A(1)(a).
The letter also, in my opinion, sufficiently identified the potential relevance of that information, being that it was inconsistent with the factual claims of the applicant to the Tribunal as to his employment in Armenia and that he was in hiding, and that:
These inconsistencies have the potential to cast doubt on the credibility of your claims to have had problems with the Armenian authorities for political reasons.
I am therefore not satisfied that the Tribunal was in breach of its obligations under s.424A.
Considering the situation more broadly from the perspective of general obligations of procedural fairness, and assuming that these are capable of surviving notwithstanding the presence of s.422B of the Act, I am not persuaded that any failure of procedural fairness occurred in this case. In particular, I am not persuaded that there was any obligation on the Tribunal to provide copies of the source of its information in the absence of any request by or on behalf of the applicant.
On the description given by the Tribunal, the information held by the Tribunal was fully discussed at the hearing in the presence of the applicant's agent. A written invitation for comment then presented particulars of the adverse information which was in the possession of the Tribunal. It was open to the applicant and his agent to request the Tribunal to provide copies of relevant documents in its possession, or which it was able to obtain. There is no evidence that any such request was made. If, as the applicant suggests, more time might have been needed to respond to the concern, no request for more time was made to the Tribunal. It appears to me that the applicant and his agent thought that it was sufficient to counter the suggestion of inconsistency by way of the arguments which were presented in the applicant's agent's letter.
The applicant in his submissions to me has shown that he now regrets not making a more extensive response together with further evidence. However, those regrets do not, in my opinion, reveal a failure of procedural fairness by the Tribunal.
Within the applicant’s submissions is a contention that the Tribunal was obliged to make further inquiries as to the true position concerning the applicant's academic qualifications and his employment. However, there is clear authority that no such duty lies upon the Tribunal (see Dissananayake v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 976 at [18]; Win v Minister For Immigration & Multicultural & Indigenous Affairs (2001) 105 FCR 212 at [15], Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]).
There is a contention in the amended application and the applicant's submissions that he was misled by the Tribunal into thinking that it accepted his explanation as to the documents presented to the Moscow Embassy. However, there is no evidence to support that contention. On the evidence before me, being the Tribunal's description of the procedures, the applicant and his agent could not have been under any such misapprehension. Certainly by the time they received the letter under 424A, any belief that the Tribunal had accepted the applicant’s explanation should have been dispelled. In the absence of a transcript of the hearing, I do not accept that there was anything said at the hearing which could reasonably have caused a false impression in the minds of the applicant and his agent so as to give rise to a failure of the Tribunal properly to conduct its review (c.f. Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82, and Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1).
The applicant's submissions pointed to various factual aspects of the applicant's claims, which the applicant argued revealed error in the Tribunal's doubting of his credibility. Several of these facts do not appear, in fact, to have been presented to the Tribunal. I have considered all these contentions, but do not consider that they do more than argue with the merits of the factual assessment made by the Tribunal. I do not consider that they reveal that the Tribunal's reasoning was not open to it on the material before it.
For the above reasons I am not persuaded that the Tribunal's decision was affected by jurisdictional error. It is therefore a privative clause decision for which relief is barred under s.474(1) and I must dismiss the application.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 20 April 2006
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