SZHTT v Minister for Immigration
[2007] FMCA 1098
•4 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHTT v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1098 |
| MIGRATION – Review of decision of RRT – whether Tribunal should have provided applicant with written notice of independent country information – whether Tribunal should have given written notice of its concern about inconsistencies in the applicant’s evidence. |
| Migration Act 1958, s.424A |
| SZBYR v Minister for Immigration [2007] HCA 26 |
| Applicant: | SZHTT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG3599 of 2005 |
| Judgment of: | Raphael FM |
| Hearing date: | 4 July 2007 |
| Date of last submission: | 4 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2007 |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms V McWilliam |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.
The name of the First Respondent be changed to Minister for Immigration & Citizenship.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3599 of 2005
| SZHTT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sri Lanka. He arrived in Australia on 12 September 2004. On 6 October 2004 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 2 August 2005 a delegate of the Minister refused to grant a protection visa and on 12 August 2005 the applicant applied for review of that decision.
The Tribunal invited the applicant to a hearing on 10 October 2005 which the applicant attended. On 2 October 2005 the applicant wrote to the Tribunal providing them with a statement about his reasons for claiming the protection of Australia and included certain documentation with it. On 9 October the applicant obtained a medical certificate from a doctor indicating that he was unfit for work and utilised that to postpone the hearing until 24 October 2005.
On 26 October 2005 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 15 November 2005.
The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations arose out of his political activities as a member of the UNP Party which was at that time in opposition. The applicant claimed to have worked as a supporter of an MP called Ravi Karunanayake during the 2004 election and submitted that the work which he did for this MP caused him to become a person whom the now sitting MP, Mr Arjuna Ranatunga, a former Sri Lankan cricket captain and Deputy Prime Minister, had reason to seek out and repress. Mr Ranatunga represented the same constituency as Mr Karunanayake for whom the applicant claimed to have worked.
There was an additional problem that the applicant suffered. Mr Karunanayake had paid the applicant quite a considerable amount of money in Sri Lankan rupees to clean and paint an office building that it was later claimed that Mr Karunanayake had obtained wrongfully from the State. The applicant said that because of his action in assisting the MP in this way he was arrested and badly beaten by the police who he believed were under the control of Mr Ranatunga. The applicant told the Tribunal that the reason the police had taken this hard line with him was because they believed he had certain documentation which would have assisted them to prove that Mr Karunanayake had been involved in the wrongful sale of state property. The applicant told the Tribunal that he feared to return to Sri Lanka because if he did so he would be found by those associated with Mr Ranatunga and would be persecuted.
The applicant claimed that in addition to problems that he himself suffered his father, who was also a strong political supporter of the UNP had disappeared, around the time that he left the country. He was unsure whether his father had yet surfaced although he had been told by his mother that his father had done so. The claims made about his father were presumably made as corroboration of the danger in which he would find himself should he return.
The decision of the Tribunal is detailed and lengthy. The Tribunal examines all the claims made by the applicant and expresses concern about most of them. The applicant had told the Tribunal that his job in Sri Lanka was as an aircraft engineer although he was not specifically qualified in that profession. The Tribunal accepts that he worked at an airport checking Cessna 152 and 156 planes but finds it difficult to see this occupation co-existing with an active political life such as that portrayed.
The Tribunal asked the applicant several questions about the aims and ideals of the UNP and was not impressed with the answers that the applicant gave. It asked the applicant what exactly he had done for Mr Karunanayake in relation to the election and what information he had given the people that he had canvassed. Whilst it could be said that another Tribunal might have felt that the evidence given by the applicant in this regard was reasonable, it being evidence of a general puffing of the candidate’s virtues and the good that he would do for persons who voted for him, this particular Tribunal chose not to accept that as establishing that the applicant had indeed worked as he said he had done. It is not for this court to replace the Tribunal’s views on that subject with its own and any such finding by the Tribunal will be a finding of fact that is not capable of being attacked by this court. To do so would be providing merits review.
The applicant provided some written evidence purporting to corroborate his claims, in particular his claims concerning the manner in which he left the country and the medical treatment he received after being beaten up following his arrest. Of the former the Tribunal says at [CB 123]:
“However, no further information is provided in these letters about the Applicant’s political views or political activities, or even reveal on what these generalised assertions are based. Moreover, the Applicant himself reveals very little knowledge of the UNP and only claims to have been a member of it for 4 years. Indeed, at the hearing, when the Tribunal asked him how many members there were of his branch, the Applicant replied that he was not an active member of a political party but rather that he helped Mr Ravi Karunanayake; said he did not hold a position in it and claimed that he had never stood for parliament or public office in Sri Lanka (as he worked as an aircraft technician, there was no necessity to stand for a position).”
The Tribunal expressed concern about a letter from the Deputy General Secretary of the UNP which spoke of the applicant in the highest of terms suggesting that had he not left the party would have been assured of victory in the future. Given the evidence provided by the applicant it was not difficult for the Tribunal to come to the view that this letter constituted something of an embellishment in order to enhance his claims for a protection visa.
The view that the Tribunal took of the applicant’s evidence as a whole was that it was not particularly credible and that much of it had been embellished. Throughout the Tribunal provides grounds for coming to those views. It states at [CB 130]:
“It follows that given all of the above the Tribunal again finds that the Applicant is not a credible witness and it also does not accept his unsupported claims that he will be “snatched” at the airport and persecuted to death and will not have the opportunity to prove his innocence in a court of law and the state police are corrupt and have become “the politicians lackeys” or indeed that he will be detained, arrested or persecuted by the police and other authorities if he returns to Sri Lanka, now or in the foreseeable future.”
The Tribunal finally states at [CB 131]:
“In short, having considered all the Applicant’s claims both individually and cumulatively, the Tribunal has not been able to satisfy itself that there is a real chance that the Applicant would be subjected to serious harm amounting to persecution for a Convention reason if he returns to Sri Lanka, either now or in the foreseeable future, and finds that he is not a refugee.”
On 30 April 2007 the applicant filed an outline of submissions in which he states that his two grounds to quash the Tribunal decision is that the Tribunal failed to comply with s.424A of the Migration Act 1958 (the “Act”):
“The Tribunal did not give a written notice about the adverse information “the country information on Sri Lanka” in which the Tribunal relied and rejected my review application. The information is very significant to me and if I had been told I would have provided my comment upon it. In the page 118 in the green book, the Tribunal put me the independent country information but it did not put the details (full contents) of the country information. Some part of the country information was in my favour, which was not also put to me. I was not given an opportunity to read the country information and to make a written submission to the Tribunal.”
The country information which the Tribunal put to the applicant at [CB 118] was of the most general type relating to the recent elections which the EU had deemed largely free and fair, that there had been no reports of politically motivated disappearances during the year 2004, that the government generally respected the human rights of its citizens and that the Constitution provided for an independent judiciary which the government generally respected. This information is information which falls squarely within the exemption contained in s.424A(3)(a) of the Act. The applicant did not appear from the Tribunal’s decision to have disputed the general assertions made by the Tribunal at [CB 118] and suggested to the Tribunal that the fear that he had was of a personal vendetta against him by Mr Ranatunga and his supporters. I would be unable to provide a review to the applicant on the basis of this submission.
The second matter put by the applicant was that the Tribunal did not put the inconsistencies which he had found between his oral evidence and his written evidence especially the internal inconsistencies that were set out in detail in the decision between [CB 119 – 131]. In SZBYR v Minister for Immigration [2007] HCA 26 at [18] Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ said:
“If the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting "information" within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute "information". Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word "information".
"does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc".
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly "information" be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.”
In the light of this reasoning by the High Court I am unable to support the applicant’s claim that the Tribunal’s failure to provide him with written notice concerning the concerns it had about inconsistencies in his evidence constitutes a jurisdictional error. I am satisfied that, in any event, the Tribunal did make it quite clear to the applicant during the course of the hearing that it had concerns about his claims and had given him every opportunity to persuade the Tribunal that they were genuine.
I dismiss the application. I order that the name of the first respondent be changed to the Minister for Immigration and Citizenship and I order that the applicant pay the respondent’s costs which I assess in the sum of $4,000.00.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM
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