SZHPI v Minister for Immigration - [2007] FMCA 1454

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHPI v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1454

MIGRATION – RRT decision – Lebanese applicant claiming persecution by Muslim extremists – disbelieved by Tribunal – no bias or bad faith – findings open on the evidence – application dismissed.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.425, 483A, Pt.8

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425
SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547
SZIAY v Minister for Immigration & Anor [2006] FMCA 1680
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102

Applicant:

SZHPI

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3352 of 2005

Judgment of:

Smith FM

Hearing date:

31 May 2007

Date of Last Submission:

6 July 2007

Delivered at:

Sydney

Delivered on:

5 September 2007

REPRESENTATION

Counsel for the Applicant:

Mr R Turner

Solicitors for the Applicant:

McMahons National Lawyers

Counsel for the First Respondent:

Mr J A C Potts

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3352 of 2005

SZHPI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 16 November 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 19 October 2005 and handed down on 10 November 2005. The Tribunal affirmed a decision of a delegate made on 22 August 2005, which refused to grant a protection visa to the applicant.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the present proceeding (see Sch.1 cl.41 of the Migration Litigation Reform Act 2005 (Cth), and Acts Interpretation Act 1901 (Cth), s.8). Under s.483A the Court has the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth), but this is subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal’s decision and send the matter back to the Tribunal, unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a refugee visa.
The applicant is a young man who arrived in Australia in June 2005 on a three months visitor’s visa. On 27 June 2005, a migration agent lodged his application for a protection visa. An attached statement explained why he sought protection against return to his country of nationality, Lebanon.
The applicant claimed to be a Christian, living in a town close to Islamic areas in which “fanatic Islamic groups” had attacked churches in 2000. He said: “some Christian people, some officers from Lebanese army and also some members of the Islamic gangs have been killed. … For these reasons the Christian young and the Lebanese forces started to prepare themselves to face the fanatic Islamic groups”. He then referred to an undated incident:
One night they attacked me in [location] and precisely in my house. I was watching T.V. with my brother while all our family was sleeping. The fanatic Muslims shot on the windows and on my family’s members who started to bleed. My brother who was soldier in the Lebanese army and I faced together the terrorists. We managed to capture three of them and the rest run away. We took them to the Lebanese army. They started to threat to kill me and to kill my family as soon as released.
He explained his departure from Lebanon:
I received many threats after the withdrawal of the Syrian army. I decided to run away to [location] and I knew from my family that some people are asking indirectly about my whereabouts. They are also asking my friends and my neighbors about me. Very soon the leader [name] will be released in exchange of the release of some members of the Islamic movement Al Jihad. This will put my life at a great risk as when released, these terrorists will target me everywhere and will kill me.
Therefore, I decided to run away to Australia, I lost my job, my properties and a bond of fifteen thousands dollars paid to the Australian government.
I cannot go back to Lebanon because I will face the persecution and I will be killed by the hands of these fanatic Islamic terrorists and nobody will protect me.
No supporting evidence for these claims was provided to the Department of Immigration.
In her decision, the delegate referred to country information suggesting that the Lebanese government was willing and able to provide effective protection. She said that she was “not satisfied that the applicant genuinely fears Convention‑based persecution”, and found that he had applied for protection “because of economic reasons and personal gain”.
On appeal, the applicant was invited to a hearing held by the Tribunal on 17 October 2005. He attended with his brother and sister‑in‑law. Shortly before the hearing, his agent lodged a number of statements from members of the applicant’s family, and other people. These did not clearly corroborate the applicant’s claims, although they referred vaguely to the applicant and his family receiving threats from “an Islamic Group”. A statement from a priest in Australia referred to the release of militants from prison, and said that the applicant “was one who lately fled away from his resident, moving from one area to another, hiding away”. Some general background material was also provided, but this did not corroborate the particular incident described by the applicant in his statement.
In its statement of reasons, the Tribunal narrated its questioning of the applicant and his brother at the hearing, in a manner which accords with the transcript which is in evidence before me. At the request of the applicant, I have also listened to the tape recording of this hearing. I did so, in order to obtain a clear impression of the tone and timing of some questioning by the Tribunal in passages, which were the subject of particular criticisms by the applicant’s solicitor. As I shall explain below, this has allowed me to reach a firm opinion that there was nothing unfair in the conduct of the hearing, and that a lay observer would not have formed an apprehension that the Tribunal did not bring an open mind to receiving and considering the evidence given by the applicant and his brother.
In his evidence, the applicant identified the incident in which his house was attacked as occurring in October 2002. He claimed that his brother was a sergeant in the Lebanese Army military intelligence, and that the group of six militants wished to kill the applicant in retaliation for the involvement of his brother in the capture of militants during the 2000 campaign. In the incident, he said that his brother shot and injured two people and captured one, and the other three escaped. The applicant claimed that he then left home, and stayed in different places, while continuing to attend his workplace.
In the course of the hearing, the Tribunal drew attention to elements in his evidence which might appear contradictory or implausible, and to country information which did not appear to support his claims. The applicant’s Australian brother indicated that he had only second‑hand knowledge of the claimed events, but referred generally to their family being threatened.
In its “Findings and Reasons” the Tribunal expressed a conclusion generally adverse to the applicant’s credibility, before explaining its reasons for that conclusion. It said:
The Tribunal found the applicant’s claims and evidence to be implausible, contradictory, internally inconsistent and moreover, inconsistent with the independent evidence. In fact, given the range of inconsistencies in the applicant’s evidence; and the inherent implausibility in his claims and evidence, the Tribunal cannot be satisfied that the applicant has been truthful in his claims and evidence, and cannot be satisfied that he has any claim to have a well founded fear of persecution for a Convention reason.
The Tribunal supported this conclusion with particular reference to the applicant’s contradicting himself in his evidence to the Tribunal in relation to the period for which he had lived in his family home, and in relation to his attendances at work. The Tribunal also considered that the applicant “altered his evidence as need in the hearing” on some matters.
Having read the transcript, I consider that it was open to the Tribunal to find the applicant’s evidence unreliable in relation to the matters it identified. It was open to the Tribunal to find that the applicant, in fact, had lived at home and worked continuously at the same place of employment until he came to Australia. The applicant’s solicitor did not submit that this finding was not open on the evidence, but the language in which the Tribunal’s findings were expressed was criticised. I shall discuss these criticisms below.
The Tribunal then examined the applicant’s claims in relation to the incident in October 2002. The Tribunal found many aspects to be “inherently implausible”, including that the assailants would wait until the applicant’s soldier brother was at home before attacking the applicant, and that the brother would have been able to wound two of the assailants and capture another. The Tribunal noted that no corroboration of the incident was submitted, and found it to be “wholly lacking in credibility”.
In my opinion, this reasoning was also rational, and open to the Tribunal on the material before it. Again, essentially, the applicant’s attack on it rests upon some of the language used by the Tribunal, which I shall consider below.
The Tribunal considered the evidence of the applicant’s brother “that the applicant is still receiving threats”, but was not satisfied that “the witness has been truthful about this claim”.
It considered the documents submitted by the applicant, giving the letter from the Australian priest no weight on the ground that its information was “second‑hand from the applicant”. It considered that the statements of family members were “expressly written with a view to enhance the applicant’s claims for a protection visa”, and said:
In any case, the Tribunal cannot give weight to this documents or the statements by the applicant’s parents and sister and “witnesses” letter because in the Tribunal’s view it would have been a relatively straightforward matter for the applicant to contrive these documents by giving his family instructions in relation to what they and their “witnesses” should write and secondly, because there is no definitive evidence to support a claim that the applicant’s parents, sisters or “witnesses” are actually the authors of these statements.
It concluded:
In summation, the Tribunal has found the applicant to be an unreliable witness, completely lacking in credibility and in light of this, and the Tribunal’s concerns about the documentation as discussed above, it cannot give the documentation weight.
The applicant’s ‘second further amended application’ was filed with leave after the hearing, so as to include an additional ground which was discussed at the hearing and was addressed in supplementary written submissions.
The first ground is:
1.The Tribunal applied the wrong test.
PARTICULARS
(a)The Tribunal failed to apply the ordinary meanings of the terms “reside” and “live” and therefore applied the wrong test in determining the credibility of the Applicant.
(b)The Tribunal failed to look at the evidence as a whole to determine the veracity of the evidence and the credibility of the Applicant.
As I understood the applicant’s argument, it was submitted that the Tribunal’s opinion that the applicant gave contradictory evidence as to his “residence” during 2002 and 2005, was vitiated by a misapprehension as to the meaning of the word “residence”. It was argued that in law, drawing upon ordinary language, in some circumstances a person can “reside” at two locations over the one period, and have two “residences” at the same time. It was argued that the Tribunal failed to appreciate this, when finding the applicant’s evidence to have been contradictory.
However, I can find no merit in the argument as presented, putting aside the problems facing the characterisation of the argued error as jurisdictional.
Page 5 of the transcript of the Tribunal’s hearing shows repeated questions by the Tribunal to clarify the period during which the applicant “resided” at his family home “continuously”. This was clarified by the applicant himself as: “do you mean I live there and didn’t move somewhere else?”. He then answered unequivocally “Yes”, to questions: “so you were there from 1999 until you came to Australia in 2005?”, and “you lived there from 1999 until 2005; is that correct?”. Later in the hearing, at page 14, he clearly resiled from these answers, claiming that he had “left home because of this problem” in 2002, and blaming the interpreter for earlier mistranslations.
Listening to the transcript of the relevant passages, it is clear that the applicant’s responses, as translated, were accurately identified by the Tribunal. They were responses which were given without pressure by the Tribunal, and without any unfairness in its questioning. The repetition of the questions, and the need for translation gave the applicant ample time to reflect on his responses. In my opinion, it was well open to the Tribunal to conclude that the applicant gave inconsistent evidence, and to regard this as seriously undermining his credibility.
I can detect no misapprehension operating on the Tribunal’s part, neither during the hearing, nor in its reasons for decision, in relation to the meanings able to be given to the word “reside”. It is clear in its earlier questioning that the Tribunal was exploring the places where the applicant “lived” in the sense “you ate there, you slept there, you lived there”. There was no suggestion on the part of the applicant anywhere in the transcript that he ever lived in two houses over the same periods. Rather, he gave inconsistent evidence as to where he lived in the period subsequent to the claimed 2002 incident.
In my opinion, this ground fails at its foundation – it requires the Court to identify evidence before the Tribunal which was, in fact, not given. It requires the Court to hold that the Tribunal was bound to accept an explanation for apparently inconsistent evidence given by the applicant, in a situation where the explanation now argued was not, in fact, even offered by the applicant when questioned about the inconsistency. I note that the applicant’s complaint about the interpreter was not pursued in this Court.
Ground 2 of the second further amended application was:
2.The Tribunal failed to carry out its review in a bona‑fide manner.
PARTICULARS
(i)The Tribunal misrepresented the evidence given by the Applicant.
(ii)The Tribunal referred to “my record” when no such record existed.
(iii)The Tribunal continually interrupted the Applicant’s evidence.
(iv)The Tribunal engaged in a “forensic ambush”.
(v)The Tribunal sarcastically referred to the Applicant’s evidence.
(vi)The Tribunal failed to take account of the Applicant’s brother’s military standing and experience in assessing the evidence.
(vii)The Tribunal improperly dismissed the Applicant’s written evidence.
(viii)The Tribunal used words and terms which indicated it did not bring an open mind to the review.
An allegation that a Tribunal did not arrive at a decision “in a bona‑fide manner” requires the Court to “find that the Tribunal member was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him” (see NAKF v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 130 FCR 210 at [24] and cases considered therein).
In the present matter, I am far from satisfied that there is any evidence suggesting that the present Tribunal did not make an honest and genuine attempt to arrive at a decision which properly weighed the evidence.
Particulars (i), (ii) and (iv) set out above relate to the Tribunal’s questioning of the applicant as to where he lived. As I have held above, I regard this questioning as appropriately conducted, and the conclusions drawn from the applicant’s responses to have been rational and legally open to the Tribunal. I do not accept that there was any “forensic ambush”, in any sense suggesting impropriety on the part of the Tribunal. It was the Tribunal’s duty to explore the truth of the applicant’s claims, and I consider that he was not tricked, coerced or otherwise unfairly led to give the inconsistent evidence which was identified by the Tribunal.
I do not accept that the transcript shows the Tribunal “continually” interrupting the applicant. There were some points where the Tribunal required the applicant to answer its questions relevantly, but I have not identified any incident of this which appears oppressive or unreasonable. Although the Tribunal insisted upon the applicant recounting his history in a chronological and detailed way, its questions gave the applicant sufficient opportunity to give the whole of his claimed history. In my opinion, the applicant was not, ultimately, deprived of the opportunity required by s.425 of the Migration Act.
Nor, in relation to particulars (v) and (viii), do I consider that the language used by the Tribunal, either in the course of the hearing or in her statement of reasons, supports a conclusion of “bad faith”. Generally, the Tribunal framed its questions in an entirely appropriate fashion. There are only a few occasions where the Tribunal strayed into the dangerous use of colourful language and irony, to emphasise a particular concern as to the credibility of an element in the applicant’s evidence. At one point she said: “well, it makes your brother sound like superman, to be honest”. At another point, she said: “they [the army] weren’t as efficient as your brother”. However, the tone of these comments, as revealed on the tapes, was not emphatic nor intimidating, and I would not conclude that they were plainly inappropriate in the circumstances. I am far from satisfied that they showed a state of mind on the part of the Tribunal member which was closed to a dispassionate consideration of the applicant’s evidence on its merits.
I find similarly in relation to some expressions used by the Tribunal in its statement of reasons. The characterisation of aspects of the applicant’s evidence as “so far fetched as to be fanciful”, and “far fetched to the point of being ludicrous”, may have been over‑emphatic and may not have been necessary. However, any concerns about these expressions do not cause me to conclude that the factual conclusions made by the Tribunal were not honestly arrived at after a proper assessment of the evidence. As I have found above, the conclusions reached by the Tribunal, stripped of colourful language, were clearly open on the evidence before the Tribunal.

Finally, I am unpersuaded that the Tribunal’s reasoning reveals any patent inadequacy in the identification and weighing of the evidence favouring the applicant, comparable with the reasoning which, in other cases, has led to findings of a failure genuinely to perform the Tribunal’s review function. I consider that the present decision does not demonstrate the defects which I identified in SZIAY v Minister for Immigration & Anor [2006] FMCA 1680, or the cases which I cited. I am not satisfied in this case that the decision comes within the language of Mansfield J in SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 at [36]:
… the Tribunal approached its review of the applicant’s claims on the basis that it should look for reasons why it could reject those claims. … its reasons overall show that it did not address the applicant’s claims by asking whether he has a well‑founded fear of persecution for a Convention reason, but in substance by asking whether there was evidence which would enable it to reject the applicant’s claims.
The applicant’s particular criticisms of the Tribunal’s assessment of evidence emerge from Ground 3 of the second further amended application:
3.The Tribunal’s findings are illogical, irrational and based on unwarranted assumptions.
PARTICULARS
(a)The following findings were based on unwarranted assumptions and/or were illogical and/or irrational:
(i)     that it was implausible that the group would wait two years before taking any action against the Applicant;
(ii)     that it was implausible that they would target him at any time and place as they wish;
(iii)   that the Applicant’s brother (a military intelligence officer) was not able to wound two assailants and capture them;
(iv)    that the documents presented by the Applicant were contrived;
(v)     the treatment by the Tribunal of the Applicant’s brother’s evidence;
(vi)    that the evidence was designed to enhance the Applicant’s protection visa application and was, therefore, unreliable.
In their terms, these particulars provide no more than arguments attacking the merits of particular factual findings. All of the arguments are of dubious substance, even when so regarded. In my opinion, each of the findings which are attacked was open to the Tribunal, and may even have amounted to a correct assessment of the relevant evidence. I am far from persuaded that individually or cumulatively they reveal either lack of bona fides, or any of the other grounds of jurisdictional error which might be evidenced by illogicality, irrationality or unwarranted assumptions (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38], citing Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [34] and [37]).
Ground 4 of the second further amended application relies upon the features of the Tribunal’s hearing and decision which were attacked under the other grounds, and contends that they lead to an inference of apprehended bias upon the principle applied by the High Court in Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425 (“Ex parte H”) at [27]‑[32]. Their Honours held that the test of “whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided” was applicable to proceedings in this Tribunal, and suggested that, in view of its administrative and inquisitorial nature, the test might be formulated “by reference to a hypothetical fair‑minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias”.
In Ex parte H (supra), the High Court pointed out that an assessment of ostensible bias in the present context must take into account the different nature of the Tribunal’s proceedings when compared to curial proceedings. Their Honours said:
[30]Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings.
[31]Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair‑minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision‑maker’s view.
[32]In the present case, a fair‑minded lay observer or a properly informed lay person, in our view, might well infer, from the constant interruptions of the male prosecutor’s evidence and the constant challenges to his truthfulness and to the plausibility of his account of events, that there was nothing he could say or do to change the tribunal’s preconceived view that he had fabricated his account of the events upon which he based his application for a protection visa. In other words, a fair-minded lay observer or a properly informed lay person might well apprehend bias by the tribunal against the male prosecutor. And because the female prosecutor’s application stood or fell with his, a fair‑minded lay observer or a properly informed lay person might, in our view, form the same view in her case.
Ex parte H was applied by Kenny J in VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 at [68]. In that case, her Honour found that a relevant apprehension arose from the conduct of the hearing by the Tribunal, in which she found an aggressive and sometimes unfair style of questioning, adverse commentary, talking over and interrupting the applicant, and repeated expressions of disbelief.
However, I do not consider that this occurred in the present case. Listening to the tapes, it was clear to me that at no time did an apprehension arise that the applicant might have felt “overborne or intimidated”, or might have felt that there was nothing which he could say which might sway the Tribunal in his favour. No evidence to this effect from the applicant has been presented to the Court. I accept the submission by counsel for the respondent:
When one listens to the tapes, the Tribunal Member’s tone was calm and patient. She asked questions and permitted complete answers. When she had to interrupt, the Member was apologetic for having to do so … There was nothing in the manner in which the hearing was conducted which could possibly sustain a conclusion that the Member acted in bad faith, or that a reasonable bystander would apprehend bias on the Member’s part.
I do not consider that the Tribunal’s ultimate reasoning processes in her statement of reasons, supports a conclusion that she did not bring an appropriately open mind at stages prior to arriving at her decision. That she then expressed her findings in emphatic, even over‑dramatic, terms, does not support that conclusion. All that it shows is that, at the end of the proceeding, the Tribunal had no doubts about the findings which it was her duty to arrive at.
For the above reasons, I am not persuaded by any of the grounds of review argued before me. I must therefore dismiss the application.

I certify that the preceding forty‑three (43) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 5 September 2007