SZHNW v Minister for Immigration & Anor (No.2)
[2007] FMCA 967
•27 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHNW v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2007] FMCA 967 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. MIGRATION – Visa – protection visa. |
| Migration Act 1958, s.425 |
| Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293 |
| Applicant: | SZHNW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2888 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 28 May 2007 |
| Date of Last Submission: | 28 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2007 |
REPRESENTATION
| The applicant in person. |
| Counsel for the Respondents: | Mr M.P. Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2888 of 2006
| SZHNW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By a second amended application dated 8 May 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) handed down on 12 September 2006 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 3 December 2003 refusing the applicant’s application for a protection visa.
The Tribunal decision handed down on 12 September 2006 came about after the applicant successfully sought review by this Court of two previous Tribunal decisions and obtained consent orders for the matter to be remitted to the Tribunal for a third consideration of his application for review.
Background facts
Based on what was contained in his protection visa application form the Tribunal described the applicant as follows:
The Applicant states that he was born on 7 November 1971 and that he was born in the town of Kandy. He states that he speaks reads and writes both English and Sinhalese and that he speaks Tamil. He lists his ethnic group as Sinhalese and his religion as Buddhist. He lists his occupation prior to his arrival in Australia as that of a student.
He states that he has had 15 years of education; that he completed his high school in Sri Lanka and that from 1999 until 2002 he studied in Australia, first of all at a TAFE College in Fremantle and then at an Institution of Management Technology in Adelaide. He states that he holds qualifications in marine navigation and that he also holds a business management qualification.
The Applicant states that he was a prominent student leader in Sri Lanka and that he was tortured by the Sri Lankan government because of his political opinions and that if he returns to Sri Lanka he fears that he will be killed by the Sri Lankan police. He states because of the torture he was subject to he has a psychological problem. (Court Book (“CB”) page 174)
The applicant claims to have been persecuted and to fear future persecution in Sri Lanka because of his political opinions.
At the Tribunal hearing the applicant changed the facts relied on to support his claim for a protection visa. The revised facts advanced in support of his application are set out on pages 4 - 14 of the Tribunal’s decision (CB 174 - 184). Relevantly, they are in summary:
a)in 1995 when the applicant worked in the shipping industry in Sri Lanka, his work involved travelling in ships carrying cargo from Colombo, the capital of Jaffna, which is one of the main centres of the civil war between the Singhalese (the applicant’s ethnic group) and Tamils (the predominant group in Jaffna);
b)on one occasion, the applicant saw some labourers stealing batteries from boxes being offloaded from his ship. The applicant was afraid that this would lead to his dismissal as he was in charge of these goods. He was also concerned because the batteries could be used in the production of explosive devices. When he asked them to desist, some of the labourers became aggressive and violent. The applicant fought back;
c)later on that day, two men approached the applicant asking to speak with him privately. He took them to his cabin. While one of the men waited outside, the other entered his cabin and stole some money as well as his diary which contained his home address. They also demanded that he leave the ship with them because they were displeased with his actions earlier in the day. The man showed the applicant an identity card identifying him as a member of the Liberation Tigers of Tamil Eelam (“LTTE”), the organisation in armed conflict with the Sri Lankan government;
d)the applicant refused to go with this man, so the man took out a gun and pointed it at the applicant’s head. The applicant managed to disarm the man and struck him on the back of the head with a metal bar. The applicant made the man outside the cabin remove his injured companion from his cabin and forced them to leave the ship. The applicant found out later on that the injured man had died as a result of the injuries he inflicted upon him;
e)the applicant did not report the incident for fear of reprisals but he did change jobs to a shipping company that mainly worked overseas because he became for fearful for his life. He also moved out of his home where he had lived with his elderly parents and has been extremely anxious since then. However, he experienced no further difficulties from the LTTE after he changed jobs;
f)the applicant provided to the Tribunal a letter from the LTTE addressed to him dated 29 September 1995 and headed “Death Warrant” in relation to the death of the LTTE officer. It states:
… you are consequently selected as enemy to our organisation and we strongly inform to our officers to shoot you because of your cruel actions relating to the incident (CB 175);
g)a medical report from a Dr Joseph Emmanuel dated 31 March 2004 states that the applicant suffers from “severe anxiety”;
h)two other medical reports, one issued by the Onslow Road Family Practice dated 15 June 2004 and the other issued by psychologist Dr Jung Sook Kim dated 13 August 2005, conclude that the applicant is suffering from obsessive compulsive disorder, depression and post traumatic stress disorder; and
i)on 15 June 2006 the applicant’s family in Sri Lanka received a threatening phone call from LTTE members. They asked where he was and threatened him. The applicant is concerned about his parents and the rest of his family who live near his parents.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal had serious reservations about the applicant’s claims in relation to the incident that occurred in 1995. The Tribunal found that it was improbable that the events as described by the applicant would go unnoticed by other seamen or the applicant’s superiors;
b)even if the Tribunal accepted the chain of events on the ship as described by the applicant, it did not accept that the LTTE threatened the applicant or are seeking to kill him as a result. This is because no further incidents occurred in the four years after the applicant switched to a different shipping line. No attempts or threats were made upon his life beyond the one letter;
c)further, the Tribunal considered the death threat letter to be a fabrication. The Tribunal found the wording of the letter to be “contrived”. It also found that it was improbable that the LTTE would write to the applicant to inform him of their intentions to kill him;
d)the Tribunal also considered the phone call to the applicant’s home to be implausible. It did not believe that the LTTE would pursue an individual such as the applicant more than ten years later on the basis of one incident in 1995; and
e)the Tribunal accepted that the applicant suffers from anxiety and obsessive compulsive disorder. However, as the medical reports indicate that the applicant’s psychological condition may be attributed to a number of causes and as the reports repeat the applicant’s claims as to the cause of his anxiety the Tribunal did not place weight on these reports as independent evidence that corroborates the applicant’s claims.
Proceedings in this Court
The grounds of the second amended application can be summarised as follows:
a)the hearing was delayed for at least 30 minutes;
b)a water glass fell on the table at the hearing with the result that the applicant was flustered and could not answer questions and it made illegible the papers from which he had intended to read;
c)the circumstances were such that the applicant was depressed and could not properly concentrate on the Tribunal’s questions;
d)the Tribunal made its decision with inadequate information;
e)the Tribunal did not take into account the applicant’s evidence that the LTTE had threatened his family several times;
f)the Tribunal ignored the applicant’s depressive state and knew that he could not be cross-examined;
g)the delay caused the applicant anxiety and the Tribunal knew he could not tolerate pressure;
h)the delay by the Tribunal and the wetting of his papers meant that the applicant was not sufficiently composed to be able to present his case;
i)some of the Tribunal’s findings were incorrect.
None of the grounds, in the way they are articulated in the second amended application, represents a basis for judicial review of the second Tribunal’s decision. However, it would be inappropriate to take too strict a view of an unrepresented applicant’s form of pleading if it can be discerned that he is endeavouring to articulate a complaint which, properly pleaded, could reflect a recognisable ground for judicial review. That appears to be the case here. The essence of the applicant’s claim is that he was denied a proper hearing. In the context of translation problems, Goldberg J said in Mazhar v Minister for Immigration & Multicultural Affairs (2000) 183 ALR 188 at 195 [31] that where an applicant appears but is not able through the conduct of the Tribunal to give evidence or present arguments then there will be a contravention of s.425(1). His Honour noted that the invitation to the hearing must not be a hollow shell or an empty gesture and:
If an invitation to appear is extended to an applicant, where the tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the tribunal. If that situation arises the tribunal will not have fulfilled its obligation under s.425(1).
The applicant also asserts that the Tribunal erred
a)by making its decision with inadequate information;
b)by not taking into account the applicant’s evidence that the LTTE had threatened his family several times; and
c)by making incorrect findings.
Dealing with each of these grounds in turn:
The applicant was denied a proper hearing
At the hearing in this Court the applicant’s evidence was that because the Tribunal hearing started thirty minutes late he was anxious about being late for an appointment he had after the Tribunal hearing. However, in his evidence he also said that he had not been told by the Tribunal prior to the hearing of any particular finishing time for the hearing nor did he tell the Tribunal about the later appointment.
In his evidence the applicant said that if had had more time he could have told the Tribunal more but it is to be noted that no such additional material was included in the letter he sent to the Tribunal after the hearing and which was received by the Tribunal on 22 August 2006. In that post-hearing letter of 22 August 2006 the applicant did not seek to address any deficiencies in his evidence to the Tribunal at the hearing on 15 August 2006. That letter speaks of the applicant’s conversion to Christianity from Buddhism but commences in the following terms:
I’m sorry I couldn’t able to tell few things in front of the lawyer & other interpreter …
Had the applicant truly had concern about the conduct of the hearing and whether he had been able to put before the Tribunal everything he wished it to consider, this was the opportunity to do so. The fact that the applicant sent a letter to the Tribunal is proof that he knew that he could. However, in that correspondence he raised no complaints with the Tribunal about the fairness of the hearing which he had been given.
The applicant told the Court that during the course of the Tribunal hearing he suffered a panic attack as a result of which he could not tell the Tribunal about the phone calls his parents had received from the LTTE. However, the applicant also said that he did not say anything to the Tribunal about how he was feeling as a result of that alleged panic attack.
There is nothing in the decision record of the Tribunal, which in pages 12-14 (CB 182-184) summarises what happened at the hearing on 15 August 2006, which suggests that the applicant was denied a real and meaningful hearing. In particular, the Tribunal’s decision records that the applicant’s adviser, a solicitor, was present at the hearing and it also indicates that the applicant was sufficiently composed to be able to identify to the Tribunal a further factual allegation, namely, that on
15 June 2006, his family had received a phone call from the LTTE threatening the applicant and asking after him. Further, towards the end of the hearing the Tribunal asked the applicant if there were other matters he wished to bring to the attention of the Tribunal to which the applicant responded that he risked his life by preventing the theft of the batteries out of loyalty to his country and in an attempt to serve his country. There was no mention at that time that the water spillage or the lateness of the hearing’s commencement caused the applicant any difficulty in the presentation of his case, where, as has already been noted, the applicant was assisted by his adviser.
The scheduled start time of the hearing was 10am, but it did not actually commence until 10.50am and it ended at 11.47am: “RRT Hearing Record” at CB 147. Nevertheless there is no mention in the Tribunal’s decision of any circumstances which would suggest that the hearing was too brief or that something had happened which had disturbed the applicant’s equilibrium. No transcript of the Tribunal hearing has been provided to the Court to support the allegation that the applicant was denied a real and meaningful hearing.
The applicant submitted that the Tribunal did not conduct a fair hearing because it did not sufficiently take into account his psychiatric condition notwithstanding that it was aware of it. But it is clear enough that the applicant said nothing to the Tribunal during the course of the hearing which would have put it on notice that the applicant was unable to give evidence or to present arguments in relation to the issues arising out of the decision under review.
It has to be kept in mind that a Tribunal can conduct a hearing in good faith which, nevertheless, does not meet the requirements of s.425: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 198 ALR 293. However, and notwithstanding the applicant’s evidence to the Court, I do not accept him when he says that he was unable to make his case at the Tribunal hearing. As a witness, he was uncompelling and this, coupled with his failure to make any complaint either at the Tribunal hearing (although accompanied by a solicitor), or subsequently, satisfy me that there is no substance to this part of his application to this Court. I find that he was not denied a proper hearing and that the Tribunal did not fail to meet its obligations under s.425.
The Tribunal made its decision with inadequate information
The applicant explained this ground as meaning that, once the water had been spilt, he felt uncomfortable and was unable to explain his case to the Tribunal. He submitted that it was not fair to ask further questions beyond that point and it was not fair to continue the hearing after that point.
No medical evidence has been tendered in support of the applicant’s allegation that his psychiatric condition rendered him incapable of giving evidence or presenting arguments.
It was for the applicant to put before the Tribunal such information as he wanted it to have in order that the Tribunal could be satisfied that the applicant met the criteria for the issuing of a protection visa. If the information before the Tribunal was inadequate this was as a result of the applicant not putting before the Tribunal adequate or adequately convincing information either at the hearing or in his subsequent letter.
Consequently, and also for the reasons given in relation to the first ground, this asserted ground of review is not made out.
The Tribunal did not take into account the applicant’s evidence that the LTTE had threatened his family several times
At CB 183 the following passage appears in the Tribunal decision:
The Tribunal asked the Applicant whether there were other threats apart from the threat of 15 June 2006. The Applicant stated that he thought there might have been two other occasions where he received threats but he could not recall these incidences [sic] at this point in time.
Consequently, to the extent that the applicant did tell the Tribunal about these events, they were taken into account by the Tribunal.
However, a consideration of the Tribunal’s decision reveals that the applicant did not tell it that the LTTE had threatened his family several times. Consequently, there is no factual basis for this asserted ground of review. Moreover, threats against the applicant’s family are not relevant, without more, to the applicant’s claim that he fears persecution in Sri Lanka for a Convention reason. As there is nothing more to link such supposed threats to the persecution which the applicant alleges he fears there would be no basis for the Tribunal to take such threats into account when considering the applicant’s application to it.
Consequently, no jurisdictional error is shown in respect of this asserted ground of review.
The Tribunal made incorrect findings
The final page of the application filed on 8 May 2007 appears to be an attempt to challenge the Tribunal’s findings on the merits of the applicant’s application. Such a course is not open in judicial review proceedings such as these, the Court being limited to determining whether the Tribunal’s decision is affected with jurisdictional error. Consequently, no jurisdictional error is demonstrated by this ostensibly asserted ground of review.
Conclusion
Jurisdictional error on the part of the Tribunal not having been demonstrated, the application will be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 27 June 2007
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