SZHIZ & Ors v Minister for Immigration & Anor
[2007] FMCA 1382
•21 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHIZ & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1382 |
| MIGRATION – Review of Refugee Review Tribunal decision – Tribunal did not fail to consider an element of the applicant’s claims – Tribunal dealt with applicant’s claims as explained and refined by applicant’s solicitor at hearing and in post hearing written submission – Tribunal did not apply the wrong test – Tribunal did not apply a balance of probabilities test rather than real chance test – no jurisdictional error – application dismissed. |
| Migration Act 1958, ss.36(2)(b), 424A. |
| Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3 Minister for Immigration & Multicultural & Indigenous Affairs v Respondents S152/2003 (2004) 222 CLR 1 SZDTZ v Minister for Immigration & Anor [2005] FMCA 1392 Applicant VEAL v Minister for Immigration & Multicultural & Indigenous Affairs v (2005) 225 CLR 88 Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14 |
| Applicant: | SZHIZ & ORS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2976 of 2005 |
| Judgment of: | Nicholls FM |
| Hearing date: | 3 May 2007 |
| Date of Last Submission: | 3 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. C. Turner |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr R. J. Bromwich |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.
The application is dismissed.
The first named applicant pay the first respondent’s costs set in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2976 of 2006
| SZHIZ & ORS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 17 October 2005 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 31 August 2005 and handed down on
20 September 2005 to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicants.
Background
The applicants are a husband (“the applicant”), wife (“the applicant wife”) and two sons (“the applicant sons”), who are citizens of Peru, who arrived in Australia on 16 October 2001. On 20 November 2001, the applicants made applications for protection visas. On 24 January 2002, a delegate of the respondent Minister refused to grant a protection visa to the applicant, and on 17 May 2002, the delegate advised the applicant wife and applicant sons of his decision to refuse to grant them protection visas. On 1 March 2002, the applicants applied for review of that decision to the Refugee Review Tribunal (“the Tribunal”). The Tribunal (constituted at that time by a different Tribunal member to decision currently under review) made its decision on 13 June 2003, and handed down its decision on 9 July 2003, affirming the delegate’s decision (this decision record is reproduced in the Court Book (“CB”) at CB 261 to CB 279). The applicants sought review of the Tribunal’s decision in the Federal Court. Subsequently, on 4 February 2005, the Federal Magistrates Court ordered, by consent, that the decision of the Tribunal be quashed and remitted to the Tribunal to be determined according to law. The Tribunal, differently constituted, signed its decision on 31 August 2005 and handed down the decision on 20 September 2005. The applicants now seek review of this Tribunal decision.
The Applicant’s Claims
The applicant wife and applicant sons depended on the refugee claims made by the applicant. Before me, I have for the applicants:
1)The application for protection visas (CB 2 to CB 30).
2)A statement of the applicant (CB 31 to CB 34).
3)A bundle of documents in support of the applications for protection visas (CB 35 to 64).
4)The applicants’ (husband and wife) application to the Tribunal (CB 194 to CB 197).
5)Letter from the applicant’s migration agent to the Tribunal regarding inclusion of the applicant sons in the application for review (CB 198 to CB 199).
6)Statement of the applicant in support of the application for review (CB 204 to CB 211).
7)A bundle of documents submitted by the applicants at the first Tribunal hearing (CB 214 to CB 254).
8)A copy of a facsimile communication from the applicant’s migration agent making submissions to the Tribunal and enclosing a bundle of supporting documentation (CB 354 to CB 430). (Sent after the hearing.)
The applicant attended a hearing before the Tribunal on 2 August 2005. He was accompanied by an adviser (CB 352 and CB 441.7). The Tribunal’s account of what occurred at the hearing is reproduced in its decision record (at CB 441.6 to CB 447.6).
The applicant claimed to fear harm in Peru at the hands of the “Shining Path” (“Sendero Luminoso”: A Maoist group formed in Peru in 1980 – see Department of Foreign Affairs and Trade Report at CB 338 to CB 339). The applicant claimed that at relevant times he held a “leading position” in a manufacturing firm and became a target of this group. In particular, the applicant claimed:
1)In 1991 he was approached by the “Shining Path” who demanded money from him.
2)In August 1991 there was an attempt to set fire to his house and also steal his car. The police carried out an investigation into these incidents.
3)He received telephone threats and “notes” under his door for a period of two years.
4)Following a period of relative calm in 2000, he again began to receive telephone threats and demands for money as a result of his “leading position at work and involvement in the trade union movement”.
5)He received threats demanding financial contributions and assistance in an “ideological campaign”, but refused to co operate with these demands.
6)In March 2001 he was approached by some individuals who attacked him and demanded he distribute flyers and propaganda.
7)On 31 May 2001, in the company of his wife and son, he was again approached by six individuals who threatened him in regard to his failure to distribute materials, but a police patrol car came into sight enabling the applicant to escape.
8)He received death threats for some period of time, and in July 2001 his motor vehicles were destroyed.
9)Because of his leading position in the firm, his “social sensitiveness” and his ideological position within the community, expressing an open and total rejection of the violent actions of the terrorist group, he became a target for the Shining Path.
10)The open and clear threat from the Shining Path filled him with fear and efforts by the government to solve the problem had not been “completely successful”, and “groups” had been killing individuals indiscriminately so no one was safe when targeted.
11)Relocation was not realistic because there was nowhere in Peru which was safe.
The Tribunal’s Findings
The Tribunal’s “Findings and Reasons” are reproduced at CB 448.4 to CB 451. The Tribunal:
1)Accepted that in the early 1990’s, when the Shining Path was at its most powerful, the applicant as a middle manager at a factory, feared harm from the Shining Path as they were engaged in attacks upon industrial sites. But in accordance with the applicant’s oral evidence at the hearing, it found that he was able to avail himself of effective state protection in relation to the unrest at that period of time (CB 448.9).
2)Accepted that during the remainder 1990’s, when the authorities in Peru curtailed the activities of the Shining Path, the applicant did not encounter further difficulties with them (CB 448.10 to CB 449.1).
3)Did not accept that the applicant was subject to ongoing adverse interest from the Shining Path between December 2000 and July 2001 as claimed. The Tribunal based its reasoning on its inability to accept as plausible the applicant’s claimed reason as to why the Shining Path would target him at that time. The Tribunal noted the applicant’s claim in his written statements that he had a political or ideological profile which motivated members of the Shining Path to inflict harm upon him, yet at the hearing he stated he had no particular political associations, nor had he made any public statements or expressed any particular views that would give rise to him being imputed with a particular ideology (CB 449.2 to CB 449.4).
4)Addressed the claim that the applicant claimed that Shining Path sought to harm him because of his managerial position at his place of work and his involvement in the laying off of a number of workers. It noted however, when questioned at the hearing about the laying off of workers, the applicant indicated he was referring to the laying off of workers over an extended period of time, and that he was not responsible for the decision to lay off the workers, nor was he aware of any more senior members who had been subjected to threats from Shining Path (CB 449.5 to CB 449.6).
5)Did not accept as credible that the applicant’s position at the factory or the laying off of workers over an extended period of time was of sufficient proportion or notoriety that Shining Path would target the applicant (CB 449.7 to CB 449.8).
6)Did not accept as credible that in the months immediately prior to his travel to Australia with his family on a tourist visa, that the applicant experienced a surge of threats and intimidation from Shining Path by reason of his managerial responsibilities such that (as he claimed) he came to Australia to flee harm (CB 449.9 to CB 449.10).
7)Did not find as credible the applicant’s description of his claimed encounters with the Shining path from December 2000 to July 2001 (CB 450.1).
8)Found the applicant’s oral evidence relating to his claimed encounters with Shining Path to be “ambiguous and stilted” and was unconvinced an armed terrorist group would require the applicant to distribute leaflets promoting their cause (CB 450.2)
9)Found the applicant’s manner of dealing with the claimed threats to be “incongruent” (CB 450.3).
10)Did not place weight on the police reports provided by the applicant, given that he did not seek to raise this issue at the hearing, and in light of his own evidence that the police are corrupt and police reports are obtained on the payment of monies (CB 450.4 to CB 450.5).
11)Considering the points above, rejected the applicant’s claim that he was targeted by the Shining Path or any other group for a Convention reason in the six months prior to his arrival in Australia (CB 450.6 to CB 450.7).
12)Did not accept the applicant, applicant wife or applicant sons faced harm from Shining Path on their return to Peru (CB 450.8).
Considering the evidence as a whole, the Tribunal was not satisfied the applicant had a well founded fear of persecution and affirmed the decision of the delegate not to grant a protection visa. It followed that the applicant wife and sons, dependent wholly on his claims, could also not be granted a protection visa under s.36(2)(b) of the Act (CB 451).
The application puts forward the following grounds with particulars:
“1. The Tribunal failed to carry out its statutory duty to review the decision in respect of the Applicants…
2. The Tribunal applied the wrong test…
3. The Tribunal failed to take account of relevant considerations…”
At the hearing, Mr Turner appeared for the applicants and Mr Bromwich of Counsel, appeared for the first respondent.
The applicant’s first ground contains two elements. The first is that the Tribunal failed to consider an element of the applicant’s claims arising from the circumstances before it, namely, whether the belief of the Shining Path guerrillas that the applicant had a particular ideology adverse to their own, was sufficient to establish a well-founded fear of persecution.
Mr Turner submitted that the applicant’s claims were that he had been a floor manager in a factory in Peru and that in the early 1990’s when the power of this group was at its highest, the applicant had been subject to threats by that group. The applicant’s evidence was that there had been a period of rationalisation at the factory and that he was hated by the workers because he was involved in a visible way with the downsizing and loss of jobs at the factory. The applicant then claimed that when President Fujimori came to power, the Shining Path was subdued and he did not encounter any further difficulties with the Shining Path until December 2000 (and up until July 2001 - a period following President Fujimori leaving power). The applicant’s evidence was that the sackings continued, he was revisted by the terrorists, and that further threats were made to him at that time, and, in contrast with the earlier period when effective protection was available to him, effective protection was not available to him at that time and he therefore left Peru for Australia.
Mr Turner’s submission was that the Tribunal’s failure can be seen with reference to its decision record at CB 449.2:
“The Tribunal does not accept that the Applicant was subject to ongoing adverse interest from Shining Path between December 2000 and July 2001. The Tribunal reasons to this finding as follows. The Tribunal does not accept as plausible the Applicant’s claimed reason as to why members of Shining Path would target him. The Applicant claimed in his written statements that he had a political or ideological profile or was imputed with a particular political or ideological profile which motivated members of Shining Path to inflict harm upon him. However at the hearing the Applicant stated that he had no particular political associations nor had he made any public statements or expressed any particular views that would give rise to him being imputed with a particular ideology.”
Mr Turner’s submission was that the complaint is with what follows the words “particular views” in the extract quoted above. The applicant had never claimed a political ideology with which he could have been said to have been “imputed” with any particular relevant views by the Shining Path. What the applicant had claimed was that the Shining Path sought to harm him because of his managerial position and his place of work and because of his involvement with laying off a number of workers over an extended period. The complaint is that it was the Tribunal’s failure to deal with the perception by the Shining Path of his role in this laying off of workers which was the claim that the Tribunal failed to deal with. The applicant, according to Mr Turner, had stated that he was hated by the workers because he was the person responsible for passing on the “bad news” and that there was a connection between the workers and the Shining Path, such that the Shining Path would perceive him to have played a role in the dismissing of workers from employment. By dealing with the matter on the basis of imputed political or particular ideology, the Tribunal failed to deal with that aspect which arose from what the applicant had put.
In support of the contention that a failure to consider an aspect of the applicant’s claims leads to jurisdictional error, Mr Turner relied on Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 at [42] and SZAIX v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 3 (“SZAIX”) at [45] and [51].
Mr Bromwich’s submission was that the Tribunal dealt with the applicant’s claims as presented by the applicant himself and as ultimately “explained and refined” by his solicitor before the Tribunal by way of written submission made after the hearing.
I agree with Mr Bromwich that the appropriate way for this Court to proceed is not to look at extracts of the Tribunal’s decision record in isolation, but rather to look at the claims made by the applicant (and his adviser) in total, and at that point look at the whole of the Tribunal’s decision record to determine whether its analysis and conclusion addressed each integer of these claims and matters which could be said to arise in the circumstances presented by the applicant.
In this regard, I looked at the following in particular:
1)Mr Bromwich referred the Court to that part of the applicant’s statement attached to his application for review which could be said to provide the applicant’s presentation as to the reason why he became of interest to the Shining Path (CB 206.9):
“It was because of my leading position in the firm, my social sensitiviness and my ideological position within the community, expressing my open and total rejection of the violent actions of the terrorist group that I became a target for ‘Shinig Path’ whose members threaten and terrorise their victims and if their demands are not complied with they resort to harassing and killing people, like myself, who have been labelled as enemies.” [Errors in original].
2)In written submissions provided to the Tribunal following the hearing, the applicant’s solicitor (Mr Turner also represented the applicants before the Tribunal), provided “the essential or significant reason” for the fear of persecution as being:
“The applicant was targeted because of his perceived role in the sacking of over 300 people who the Shining Path saw themselves as representing. The Applicant’s role as a manager with such responsibility is a social group. The targeting of him as a manager, is an essential and significant reason for the persecution.” (CB 355.7).
3)In its account of what occurred at the hearing, the Tribunal records (at CB 442.9) that the applicant had stated his position in the company as a floor manager responsible for some of the day to day operations and that he supervised staff. The Tribunal then asked the applicant about his experiences with the Shining Path and what occurred in relation to this is reported at CB 443 and CB 444. In particular:
a) At CB 444.3:
“The Applicant then stated that part of the reason for the threats related to the fact that he was required to sack some 350 workers. The Applicant stated because of this the union was antagonistic towards him and they threatened him.”
b) At CB 444.8:
“The Tribunal asked the Applicant whether the threats he received related to the sacking of 350 people, or whether they related to something else. The Applicant stated that the union was against him and that Shining Path knew about this and targeted him as a boss within a company. The Applicant stated that Shining Path was in some ways linked to this union.”
I agree with Mr Bromwich that a reading of the Tribunal’s analysis in its “Findings and Reasons” when read as a whole, and when read with reference to the claims as put by the applicant and his adviser, reveal that the Tribunal dealt with those claims as put to it. The Tribunal’s summary of the applicant’s claims beginning its consideration accurately reflects the applicant’s claims, particularly as ultimately explained and refined in the solicitor’s submission after the hearing. Importantly, the Tribunal found:
1)It accepted as plausible that in the early 1990’s, that the applicant, as a “middle manager in a factory”, feared harm from the Shining Path. But it noted that the applicant was able to avail himself of effective state protection at that time (CB 448.9).
2)It accepted that subsequently in the 1990’s that the authorities in the Shining Path were curtailed and that the applicant did not encounter difficulties (CB 448.10 to CB 449.1).
3)It did not accept that the applicant was subject to ongoing adverse interest from the Shining Path between December 2000 and July 2001 (at CB 449.3).
It is clear that in relation to that part of the Tribunal’s decision record specifically complained of by Mr Turner, that the Tribunal’s finding that the applicant had not made any public statements or expressed any particular views that would “give rise to him being imputed with a particular ideology” was a finding directly relevant to and addressing the applicant’s claimed ideological profile (“idological position”)(with reference to CB 206). With reference to what the applicant himself had said at the hearing, the Tribunal noted that the applicant had stated that he had no particular associations or made any relevant statements or expressed any views that would themselves give rise to him being imputed with a particular ideology.
Importantly, however, the Tribunal then went on to deal with what the applicant had actually claimed, that is, that the Shining Path sought to harm him because of his managerial position at his place of work and his involvement with the laying off of a number of workers. It was in the applicant’s post-hearing submission itself that the essential and significant reason for the persecution was said to be the targeting of the applicant by the Shining Path “as a manager and because of his perceived role in the sacking of over 300 people who the Shining Path saw themselves as representing”. It was precisely this claim that the Tribunal dealt with and in particular when it went on to find at CB 449.7:
“While the Tribunal considers it plausible that the Applicant experienced some animosity from workers in regard to these job-losses, the Tribunal does not accept as credible that the Applicant’s position at the factory or the laying off of workers over an extended period of time was of sufficient proportions or notoriety that Shining Path would target the Applicant.”
I can only agree in all the circumstances with Mr Bromwich that the characterisation that it was an aspect of the applicant’s claims that the fear of persecution was based on a general perception or belief held by the Shining Path. This was not the applicant’s claim. The applicant’s claim specifically, and as emphasised by the adviser’s post hearing submission, was to have been “targeted” by the Shining Path because of his managerial position and his role in the sacking of workers over some period. As Mr Bromwich submitted, the Tribunal was entitled, indeed, required, to deal with the claim presented and not some other claim which was not part of the applicant’s claim, nor was it required to deal with some claim which could be said to arise from the circumstances as presented by the applicant (see also Minister for Immigration & Multicultural & Indigenous Affairs v Respondents S152/2003 (2004) 222 CLR 1 at 11-13 [27-9] per Gleeson CJ, Hayne and Heydon JJ). In essence, I could not see that the applicant’s claim was that he might be targeted by the Shining Path for some perception that they may have had but that he had been targeted for a specific reason which the Tribunal directly dealt with. This aspect of ground 1 does not succeed.
The second element and particular of ground 1 is that the Tribunal also failed to adequately deal with an aspect of the applicant’s claims in that it had found (at CB 448.8) that threats had been made against the applicant in the early 1990’s. The complaint is that even though the Tribunal found that actual threats were made in the early 1990’s, the Tribunal failed to consider whether the applicant’s fear in relation to the threats that he said came from the same guerrilla group between December 2000 and July 2001, were made, and were credible.
I understood the submission to be that the Tribunal looked at each of these sets of claims separately (it took “individual integers” on their own “basis”) rather than looking at the totality of the applicant’s claims in a cumulative fashion. That is, whether given that the threats had occurred in the past, whether later similar threats would lead to a well-founded fear given the earlier experiences.
I agree with Mr Bromwich that a plain reading of the Tribunal’s decision record reveals that the Tribunal did not find that any of the threats had actually been carried out against the applicants in the early 1990’s. But that the Tribunal accepted as being plausible that given the strength of the Shining Path at that time, that the applicant as a “middle manager at a factory” feared harm because the Shining Path at that time were engaged in attacks against industrial sites. The Tribunal also noted that it was the applicant’s own evidence that effective state protection during that time of unrest was available to him. In light of this, I cannot see that the Tribunal’s subsequent analysis was flawed in the way asserted by the applicant now. Further, on what was before it, it was entirely open to the Tribunal to find that the applicant did not encounter further difficulties with the Shining Path in the late 1990’s (CB 449.1). That this was due to the “Fujimori situation” or indeed due to any other situation does not detract from the Tribunal’s finding that the applicant did not encounter any further difficulties. This was entirely consistent with the evidence, including the applicant’s own evidence put before it.
In addition, as is also submitted by Mr Bromwich, it is clear that on the independent country information available to it, the different operation of the Shining Path between the early 1990’s and the late 1990’s and then in the period between December 2000 and July 2001, were three very different situations which plainly did not require the Tribunal to address all of the claims in a cumulative fashion. I accept that the fair reading of the Tribunal’s decision record is that the circumstances that existed in 1991 were so different to those in 2000 that any direct comparison was meaningless. The Tribunal plainly had before it clear changes in circumstances through the three periods (early 1990’s, late 1990’s, December 2000 to July 2001). That the applicant feared harm in the early 1990’s but was not found to have actually suffered harm at that time does not in the circumstances before the Tribunal, require that it consider the claims for the third period in light of the first, or indeed, the second period. The critical issue is that the Tribunal did not find that the applicant had been targeted for harm in the early 1990’s. That the Tribunal found that the applicant feared that he would be a target, and that the Tribunal subsequently found that the applicant was not the subject of ongoing interest between December 2000 and July 2001, was plainly open to it on the material before it and for the reasons that it gave. In all therefore, I do not see that this second element of the applicant’s first ground is made out.
The applicant’s second ground is that the Tribunal applied the wrong test in its assessment of the applicant’s claims. Again, two particulars are relied upon in support of this ground.
The applicant’s complaint derives from what the Tribunal said in its decision record at CB 450.2:
“The Tribunal is unconvinced that an armed terrorist group would require the Applicant to distribute leaflets promoting their cause and considers that Applicant’s description of his claimed encounters with Shining Path in the street were more akin to a description of criminal gang activity rather than activity of armed terrorists.”
Mr Turner’s submission was that the applicant had claimed not only that there had been threats made to him in 2001 but that there was an actual incident which led to his fear. At the hearing before the Tribunal, the applicant had told the Tribunal that three incidents had occurred in the relevant period, in 2001 in March, May and July, and that these incidents were carried out on each occasion by different people (see CB 445.4).
Mr Turner’s submission was that the Tribunal dismissed these claims on the basis that the incidents were “more akin to a description of criminal gang activity rather than the Shining Path”. His submission was, the phrase “more akin” reveals that the Tribunal’s conclusion was that the incidents were “more likely than not” criminal activity and that this reveals that the Tribunal’s finding was made on balance rather than the appropriate real chance test.
Mr Turner referred the Court to SZDTZ v Minister for Immigration & Anor [2005] FMCA 1392 (“SZDTZ”) and in particular [21]-[23], where Smith FM found in the circumstances of that case that the Tribunal applied a balance of probabilities test rather than the required real chance test (I note that Mr Turner represented the applicant in that matter before FM Smith).
I note however, that at paragraph 23 of SZDTZ, which Mr Turner relied upon, His Honour said:
“I therefore would not have upheld this ground of review if I were not persuaded from the overall reasoning process revealed by the Tribunal, and by its treatment of key evidentiary issues, that it mistakenly thought that it was enough for it to resolve doubts about the claimed history by making findings on the balance of probabilities.”
His Honour then goes on to set out a long list of aspects of the Tribunal’s reasoning process to support his conclusion.
What was before His Honour in SZDTZ and what was found by His Honour can plainly be distinguished from what is before the Court now, on the basis that any plain examination of the overall reasoning process of the Tribunal would reveal that it did not approach its task in this case on the basis of a balance of probabilities. The applicant relies on one aspect, on one particular part of the Tribunal’s decision, and draws on one phrase “more akin”, which in my view, as Mr Bromwich correctly submits, is to take a small part of the Tribunal’s reasons out of context. I note here what was said in Applicant VEAL v MIMIA (2005) 225 CLR 88 at 95-6 [16].
It is clear that any plain examination of the Tribunal’s reasoning process reveals that on the issue of the applicant being of adverse interest to the Shining Path, between December 2000 and July 2001, the reference “more akin” complained of now, was only one of a number of elements in the Tribunal’s analysis. The Tribunal did not accept as plausible the applicant’s reasons as to why the Shining Path would target him during this period. The Tribunal gave a number of reasons for its conclusions and these are set out variously at CB 449. Within that context, the Tribunal (CB 450.1) did not find as credible the applicant’s description of the claimed incidents with the Shining Path during this period. Variously, it found his oral evidence to be “ambiguous and stilted” and was unconvinced that an armed terrorist group would require the applicant to distribute leaflets promoting their cause. It was within this context that the Tribunal noted that the applicant’s description of his claimed encounters with members of Shining Path were “more akin” to a description of criminal gang activity rather than activity of armed terrorists. Further, the Tribunal considered that there was an incongruent element to the applicant’s claims of how he dealt with these claimed threats. In context, it is clear that the Tribunal was not applying a balance of probabilities test to its analysis but when it used the phrase “more akin”, was likening the applicant’s description of his claimed encounters in the street as being similar to or of the nature of criminal gang activity than the activity of armed terrorists. This description was one part of one finding which was open to the Tribunal on the material before it. I cannot see that even on its own, this would give rise to an inference that the Tribunal may have applied a balance of probabilities approach, let alone when read in context of the totality of the Tribunal’s reasoning that such an inference could be said to arise. This first aspect of the second ground does not succeed.
The applicant also complains that even if the activity complained of was that of a criminal gang, then the Tribunal was still required to consider whether effective state protection was available to the applicant, and if not, whether it was withheld from the applicant for some convention reason. Mr Turner relied on Minister for Immigration and Multicultural Affairs v Khawar [2002] HCA 14 (“Khawar”) in support of this complaint. He also relied on SZAIX particularly at [45] and [48]. I understood Mr Turner to be relying on the finding in that case that the applicant’s claims and submissions “mandated” an inquiry into the prospect that the applicant may have been denied reasonable protection from the police.
In my view, what plainly distinguishes the circumstances before the Court now from those in Khawar and SZAIX is that unlike, as in those two cases, in the Tribunal decision before the Court now, there was no finding that the incidents of harm had occurred. In Khawar, Mrs Khawar had plainly been the victim of domestic violence at the hands of non state actors, that is, her husband and his family. In the circumstances of that case, the Court found that the Tribunal was obliged to consider whether as a woman who was the subject of domestic violence, albeit from non state actors, the authorities (that is the police) tolerated or condoned such harm being inflicted on her (Khawar at [30]-[31]).
In the case before the Court now, the Tribunal made no finding that the applicant had suffered harm by way of the incidents that he claims to have occurred in December 2001. The Tribunal did not find as credible the applicant’s description of these claimed encounters. It found his evidence to be ambiguous and stilted. Further, it was “unconvinced” that the Shining Path would require him to distribute leaflets promoting their cause, and further found his claimed manner of dealing with these threats to be “incongruent”. I accept Mr Bromwich’s submission that there was no uncertainty in the Tribunal’s rejection of the applicant’s claim to have been the subject of incidents involving the Shining Path. Further, in these circumstances, there were in fact no circumstances such as to mandate the addressing of the question as to whether effective state protection was available to the applicant.
It is important to note in this regard that the Tribunal’s description of the applicant’s claimed encounters in the streets as “more akin” to criminal activity rather than activity of armed terrorists, was not, on a plain reading of the Tribunal’s decision, a finding that what had occurred was activity of a criminal nature rather than of a politically inspired “Shining Path” nature. The Tribunal’s very clear analysis was that the events claimed to have occurred did not occur. The reference to “criminal gang activity” was plainly in relation to the applicant’s description of what he said had occurred, descriptions which were plainly found to be “not…credible” (CB 450.1). In all therefore, this complaint does not succeed.
The applicant’s third ground is that the Tribunal failed to take into account a relevant consideration. Although as set out in the application, this appears to rely on two such relevant matters, namely that the Tribunal failed to take account of the fact that the applicants lodged their applications for a protection visa shortly after arriving in Australia, and that the Tribunal dismissed police reports provided by the applicants. Mr Turner submitted at the hearing that while the first matter was not being “pressed as it is” that he saw it as being “relevant in the mix of everything”. Written and oral submissions did not appear to elaborate on this issue.
Nonetheless, and in any event, as Mr Bromwich submits, and as I fully agree, the first aspect of this complaint (if indeed it remained as a complaint) was misconceived at a number of levels. The Tribunal was plainly aware that the applicants had arrived in Australia on 16 October 2001 and applied for a protection visa on 20 November 2001 (see CB 437.1). Further, what weight to be given to this factor is of course a matter for the Tribunal and nor do I see that this fact constitutes a “relevant consideration” in the sense such that it was necessary for the Tribunal to address it. As Mr Bromwich also in my view, correctly submits, a delay in five weeks in applying for a protection visa might indeed have been taken against the applicant if the Tribunal had decided to do so. But in any event, the issue is, it is not such a factual matter as required the Tribunal to address it either way.
The ground as developed in written submissions and oral submissions before the Court by Mr Turner is that police reports provided by the applicant to the Tribunal in support of his claims were not considered by the Tribunal. The applicant makes reference to the Tribunal’s decision record at CB 450.5:
“The applicant did not seek to raise with the Tribunal these police reports and the Tribunal does not place weight on these documents in light of the Applicant’s own evidence that the police are corrupt and that police reports are obtained on the payment of monies.”
The police reports were provided by the applicant to the Tribunal. They were provided to the previously constituted Tribunal (see CB 216 to CB 219) and were before the Tribunal (SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 at [43] per Emmett, Rares and Siopsis JJ). These certificates related to the incidents that the applicant claimed to have occurred in 2001 and were attached to his statement at the Tribunal. Mr Turner submitted at the hearing before the Court that these documents relevant to this ground of complaint were before the Tribunal.
The Tribunal’s account of what occurred at the hearing before it reveals that the issue of referring the claimed incidents of harm to police was generally and variously raised at the hearing (see CB 445), and that the applicant, subsequently before the course of the hearing, was specifically asked whether there was anything he wished to add after having recounted his claims and fears (at CB 446.5 to CB 446.8):
“The Tribunal asked the Applicant whether there was anything else he wished to tell the Tribunal about. The Applicant stated that there was not. The Tribunal then raised with the Applicant the existence of police reports that are on the Department file and attached to the protection visa application. The adviser stated that he did not have copies of these police reports. The Tribunal raised with the Applicant its concern as to whether or not the Tribunal could place weight on these documents. The Tribunal stated that it was reticent to place weight on these documents, given the Applicant’s own evidence that the police are corrupt and that they make reports and/or act on things according to the money that they are paid. The Applicant stated it is true and the police are corrupt.”
The applicant and his adviser were put on notice by the Tribunal at the hearing that it had concerns about whether or not it could place weight on these police reports and gave the applicant reasons for this. I note that subsequently, in a submission provided by the applicant’s adviser to the Tribunal after the hearing, that no reference is made to the police reports let alone the Tribunal’s known concerns as to the weight that it should place on these documents (see the submission at CB 354 to CB 355).
I understood in submissions before the Court that Mr Turner’s position was that the Tribunal, by placing no weight on these documents, “dismissed” the documents but should have done so with a proper, logical, and proper evidentiary basis to support its action. The submission was that the reasons that the Tribunal gave for placing weight on these documents were insufficient to lead it to dismiss the documents. His argument was that if the incidents claimed by the applicant had actually occurred then the documents would have gone to support such a position.
I should just note that I did not see the documents that the Tribunal referred to as being the document reproduced at CB 218 referred to in the written submissions. The document at CB 218, while a police document, appears to be a police certificate as to criminal record and is plainly different given the translations in English provided to the certificates with translations provided at CB 35 to CB 46 and are plainly attached to the protection visa application as noted by the Tribunal in its decision record (CB 446.5). While this issue was not raised in any ground or even in submission (in fact, Mr Turner submitted that the documents were before the Tribunal), nonetheless for the sake of completeness, I note in terms of the Tribunal’s obligations pursuant to s.424A(1) of the Act, that the police statements were attached to the statement provided by the applicant to the Tribunal, and it appears, received by the Tribunal on 11 March 2003 (CB 210 and CB 211) and reproduced at CB 204 to CB 209. This statement is to a great degree similar to a statement attached to the application for a protection visa and the sentence “all these incidents were always duly reported to the police. Relevant documentation enclosed” in both documents relates to the events of 2001. I note further that in its report of what occurred at the hearing, the Tribunal noted that the adviser stated that he had copies of these police reports. Ultimately however, the Court relies on submissions by Mr Turner that the police reports were before the Tribunal for the purposes of the review and no s.424A issue was taken.
I do not agree with the applicant’s complaint as stated in his ground of review and in written submissions in support. The Tribunal did not fail to take account of relevant considerations in the sense that it failed to consider the police reports. To the extent that Mr Turner submitted to the contrary, there is plainly a distinction between the Tribunal deciding not to place weight on these documents and it being said thereby that it did not consider the documents. Such a submission in my view does not rise above a request for impermissible merits review. As Mr Bromwich submits, the Tribunal did turn its mind to the issue of what weight could be placed on these documents and that clearly it did consider whether the documents therefore might be an accurate record of events. Nor for that matter can it be said as submitted by Mr Turner that there was no proper logical basis or evidentiary basis for the Tribunal’s conclusion in this regard.
Plainly, the Tribunal’s analysis of the events from December 2000 to July 2001 was that it did not find the applicant’s description of claimed encounters with the members of Shining Path during this period to be credible. It was unconvinced that an armed terrorist group would require the applicant to distribute leaflets in the way that he said that they did. The Tribunal further found “incongruent” his claims to have reported each of these encounters to the police in circumstances when he had also complained that Shining Path had infiltrated the police force to the extent that he feared reprisals from reporting these incidents. It was in this context that the Tribunal then looked at his claim to have reported these incidents to the police. On what is before the Court it is open to the Tribunal on what was in turn before it, to note that the applicant did not seek to raise the police reports with the Tribunal. Its account of what occurred at the hearing showed that it was the Tribunal that raised the issue after the applicant stated he had nothing further to add and it was also plainly the applicant’s own evidence that the police were corrupt and that reports could be obtained on the payment of monies. This in my view provides a logical and proper evidentiary basis for the Tribunal’s decision not to place weight on these documents.
Importantly, it must be emphasised that the Tribunal did not find that the documents were fabrications. The Tribunal’s finding was not such as to reject the documents as being false. The Tribunal’s analysis reveals that for reasons that it gave, it could not place weight on these documents. In my view, it was for the Tribunal to assess the weight of the material before it and whether to accept or not to accept that material in the context of adding or detracting from the applicant’s claims. Further, given the applicant’s own evidence (and there is nothing before the Court to challenge the Tribunal’s report that the applicant gave such evidence), it was open to the Tribunal to decide that the documents, that is what was asserted in the documents, could not be accepted at face value. That the Tribunal did not place weight on these documents in support of the applicant’s claim does not reveal a failure to take into account the Tribunal’s consideration.
Plainly the Tribunal considered the issue of the documents, an issue which it must be emphasised, it raised with the applicant at the hearing, and put him on notice as to its concerns and provided him with an opportunity to make further submissions through his adviser. An opportunity which on this issue, was not taken up by the applicant. In all therefore, this ground does not succeed.
The applicant’s grounds as put forward in his application, and as pressed by Mr Turner at the hearing before the Court do not reveal jurisdictional error on the part of the Tribunal. This application is accordingly dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: Dawnie Lam
Date: 21 August 2007
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