SZHTZ v Minister for Immigration

[2007] FMCA 496

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHTZ v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 496

MIGRATION – RRT decision – Turkish applicant claiming persecution for Kurdish and human rights activities – discredited by Tribunal – partial reliance on travel information given in protection visa application – information also ‘given’ to Tribunal in responses to questioning at hearing – no breach of s.424A – application dismissed.

Migration Act 1958 (Cth), ss.424A, 424A(1), 424A(3)(b), 474(1), 476, 476(1)

Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155
NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214
SZHFC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1359

Applicant: SZHTZ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG3614 of 2005

Judgment of: Smith FM

Hearing date: 21 March 2007

Delivered at: Sydney

Delivered on: 21 March 2007

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Parish Patience Immigration Lawyers

Counsel for the First Respondent: Ms S Sirtes

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $5,000. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3614 of 2005

SZHTZ

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 8 December 2005 which seeks judicial review under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 11 October 2005 and handed down on 1 November 2005. The Tribunal affirmed the decision of a delegate made on 26 November 2004, refusing to grant a protection visa to the applicant.

2. The Court’s jurisdiction under s.476(1) is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) so that I do not have power to 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 refugee claims are true, nor whether he qualifies for a protection visa or any other permission to stay in Australia.

3. The single ground of review raised by an amended application filed at the hearing concerns whether the Tribunal failed to comply with s.424A(1) of the Migration Act in relation to a particular piece of travel information which the Tribunal used as a subordinate reason for rejecting the applicant’s credibility. In these circumstances, I do not need to give more than a very brief sketch of the background.

4. The applicant arrived in Australia on a tourist visa in July 2004, and lodged his application for a protection visa on 2 September 2004.  An attached typed statement narrated a history explaining why the applicant sought protection in Australia against return to Turkey, his country of nationality. 

5. The applicant claimed that his family had a Kurdish background, and that at school he became involved in “the left movement”.  He claimed that during conscription and military service in Kurdistan he witnessed mistreatment of the local population, which caused him to become politically active.  He said: “in 1986, the first Human Rights Association was established and I was involved in the founding of the Association”.  He referred to activities of the HRA and implied that he was involved in them.  He claimed: 

   We were constantly detained, but released without any charges, because we had committed no offence.  But in the meantime, we were beaten and threatened.  They wanted to scare us and make us give up our activities.  And this was successful on some of our friends. During this period, I was detained countless times and subjected to physical and psychological torture. 

6. He also claimed to have developed relationships with Kurdish patriots, and to have conveyed information about atrocities to branches of the HRA including his home‑town branch.  He said that in November 1989 he was taken into custody, subjected to physical and psychological torture and “threatened with having made to disappear”.  He was released after efforts by his employer, but later lost his employment. 

7. He said that he took part in the formation of a committee seeking to address the situation of the Kurds, and participated in major protest meetings.  He claimed that in 1993 he was arrested and charged with other people, but was acquitted.  He claimed: 

   I was again taken into custody during the 1998 Newroz celebrations.  I was subjected to very heavy torture whilst in custody.  During the 6 days I was kept in custody, all efforts made by my lawyers who were attached to the HRA and my family were left unanswered and they were told I was not in custody. 

   He claimed to have been interrogated about “the links between the HRA” and a Kurdish party, and to have eventually obtained release “due to efforts by some members of the European Parliament”. 

8. He said that after the Kurdish insurgency recommenced “one day around April 2004, when I was not at home purely by chance, my home was raided.  When I found out about it, I never returned home again.  He claimed that he discovered that his name was on a list of people suspected of involvement in guerrilla activities, and that there was a warrant for his arrest.  He consequently never went home but came abroad.  

9. When completing his visa application, in response to the question: “did you ever travel outside your home country or country of residence before your current journey to Australia?”, he answered: “yes”, and referred to having visited Holland with the arrival date “25.11.03” for the purpose of “travel”. 

10. When refusing the visa application, the delegate referred to the absence of corroborating evidence, and also to aspects of the applicant’s travel and country information which raised doubts about the applicant’s claims.  This included a reference to the applicant’s travel to Holland: 

    Apart from the incident in April 2004 the applicant’s claims relate to incidents that occurred in 1998 and earlier.  He has maintained a position as a sales manager and travelled to Holland in 2003.  In view of his earlier experiences I find it unusual that he did not seek asylum in Holland or in Germany as he has relatives living there.  To enter Holland he would have required a Schengen visa giving him right of entry into Schengen countries, yet he has not provided a copy of his Schengen visa. 

11. The applicant employed solicitors to bring his appeal to the Tribunal.  A covering letter to the application for review said: “we lodge the following”, and referred to “copy refusal letter”.  That attachment is on the Tribunal’s files and shows that the solicitors attached not only the decision record, but also the delegate’s statement of reasons with indecipherable annotations.  There was then extensive exchanges between the applicant’s solicitors and the Tribunal about various matters, but I do not need to trace the whole history of the correspondence.  

12. The applicant attended a hearing on 16 March 2005 with his solicitor, and presented two Turkish documents which he claimed corroborated that a warrant had been issued for his arrest.  Later, English translations of these documents were presented to the Tribunal.  The Tribunal raised with the applicant at the hearing, and in subsequent correspondence, the possibility that these documents were fraudulent.

13. In the course of the hearing, the applicant was questioned, among many other matters, about his travel to Holland:  

    Q.So how many times have you been detained altogether? 

    A.In ’93 and in ’98. 

    Q.Only twice? 

    A.We can say that, but of course I’m not counting when the police detained me, kept me for a day and then released me. 

    Q.How about you count those occasions; how many altogether? 

    A.I don’t know.  Perhaps 30 times. 

    Q.And you were physically mistreated on those occasions? 

    A.Partially.  Not big torture.  Threats. 

    Q.Given this history of being detained, you say, on about 30 occasions, being physically mistreated and tortured, why did you not apply for refugee status when you went to the Netherlands in 2003? 

    A.Between 1980 and 2004, although I was detained by the police and interrogated by the police, there was no reason for me till I went to Holland to migrate, because we were fighting certain thing, and the government forces was able to detain us and physically abuse us. 

    Q.Many people who have had the history that you claim to have had have left Turkey and applied for (inaudible).  You had the opportunity to leave and you did leave Turkey in 2003, so are you saying that in 2003 you didn’t consider that you’d been persecuted in the past and you didn’t fear being persecuted in the future? 

    A.No, no, I didn’t.  I was fighting for something, and that was a response to that fight, and that was normal. 

14. Following the hearing, the Tribunal instigated inquiries in Turkey directed to the Human Rights Association in the applicant’s town. Information was received from this source that there was no record of the applicant having ever been a member of the Association, and that no person under the applicant’s name was known to the Association. These matters were fully put to the applicant in s.424A invitations for comments, which gave rise to further correspondence with the applicant’s solicitors.

15. In its statement of reasons under the heading “Findings and Reasons”, the Tribunal accepted that the applicant was a Turkish national of Kurdish background, but concluded that he was “not a credible witness”.  It did not accept that he was of “adverse interest to the Turkish authorities” at the time he left Turkey, nor that he was of “adverse interest to the Turkish authorities currently”.  The Tribunal said: “I am of the view that the applicant fabricated his claims in an attempt to create for himself the profile of a refugee”. 

16. In support of these conclusions, the Tribunal examined his claim to have been a member, or involved in the activities, of the Human Rights Association.  It addressed both the information obtained in Turkey and the applicant’s responses to its questioning.  It also closely examined the documents he presented.  It is unnecessary for me to explain its reasoning on these matters. 

17. After expressing a conclusion which rejected all the applicant’s claims, the Tribunal said: 

    I also reject the applicant’s claim that he has been detained or otherwise mistreated in the past.  My conclusion that the applicant’s claim to have been detained and mistreated in the past is not credible is strengthened by the fact that the applicant did not apply for protection when he visited the Netherlands in 2003.  In my view, if the applicant had been seriously mistreated prior to 2003, as he claims, he would have taken steps to seek protection while he was outside Turkey. 

18. The one ground of appeal argued by counsel for the applicant was: 

    1.The RRT failed to comply with s424A of the Migration Act 1958.

    Particulars 

    (i)The Tribunal failed to give to the Applicant, in writing, particulars of material given with the Applicant’s Protection visa application lodge with DIMIA, which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review; and failed to ensure, as far as is reasonably practicable, that the Applicant understood why it was relevant to the review; and failed to invite the Applicant to comment on it: 

    (a)     The Tribunal failed to disclose, as provided by that section, that the Applicant had stated that he travelled to the Netherlands; and

    (b)     The Tribunal failed to disclose, as provided by that section, the year of that travel. 

19. Counsel for the Minister did not contend that the Tribunal’s reference to the applicant’s travel to the Netherlands, in the part of its reasons which I extracted above, did not form “a part of the reason, for affirming the decision that is under review”, within s.424A(1). In my opinion it did inform “a reason”, albeit a minor or subordinate reason. However, the relative insignificance of the Tribunal’s reference to the travel information is not sufficient to avoid the requirements of s.424A(1), according to its interpretation given in the Federal Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214.

20. The issue which was debated before me was whether the Tribunal’s obligation to include reference to this information in a s.424A letter was excluded by reason of s.424A(3)(b), which provides that “this section does not apply to information … that the applicant gave for the purpose of the application”. 

21. The application of this exemption is, of course, the subject of innumerable decisions of this Court and the Federal Court.  Both counsel referred me to the most recent consideration of relevant authorities in the Full Court, in Young J’s judgment in NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195. Gyles and Stone JJ agreed with his Honour’s reasons.

22. Young J reviewed the current state of authority on whether an applicant “gave” information to the Tribunal when questioned about that information by the Tribunal, where the information upon which he was questioned derived from information previously given by the applicant to the Department of Immigration in the body of his visa application or its supporting statements.  His Honour examined the support given in SZEEU (supra) for a previous decision of Jacobson J in NAZY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 744, which suggested that an applicant’s responses to questions might not always amount to the “giving” of the information which was put to him. At [52], Young J referred to the test applied by Jacobson J, as to whether the applicant’s responses to his questioning showed the giving of information “in chief”. 

23. For myself I have always had difficulty with the distinction suggested by Jacobson J, since I do not think it accords with the statutory procedures required of the Tribunal when conducting a hearing, nor with the way in fact it usually conducts its hearings.  Justice Young seems to have had similar reservations, since at [52] he did not accept “the general proposition that information given in the course of a Tribunal hearing must be put forward in chief before it can fall within the exception in s 424A(3)(b)”.  At [56] he again declined to endorse generality of a principle sought to be drawn from NAZY, and identified different approaches implicit in SZEEU.  He said: 

    56The different ways in which the Full Court approached the s 424(3)(b) issue in SZBMI and SZDXA may be explicable on the basis that the first case concerned a detailed statement concerning flight information, whereas SZDXA concerned a specific piece of factual information (entering Australia on a business visa) which was adopted in terms by the appellant in the course of his evidence.  For present purposes, however, the important point that emerges from this discussion is that the decision of the Full Court in SZEEU does not endorse the generality of the principle that the appellant in this case seeks to draw from NAZY. 

    57In SZCJD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 609 (‘SZCJD’), Heerey J said at [42] that the exception in s 424A(3)(b) would apply to information which is affirmed by an applicant for the purposes of the review, even if the information might also have been obtained by the Tribunal from another source. His Honour referred to Moore J’s reasons in SZEEU at 242 [91], with whom Weinberg J at 254 [173] and Allsop J at 268 [264] agreed. In circumstances where the information is necessarily within the knowledge of the applicant himself, his Honour held at [43] that:

    ‘To conclude that an applicant “gave” information for the purpose of the Tribunal application it is not necessary that the information was initially volunteered by the applicant.  Information is equally given if it comes in response to questioning by the Tribunal.’ 

    There is no inconsistency between this approach and SZEEU: see also SZHFC v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1359 at [24]‑[25].

24. The reference to SZHFC is to a judgment of Allsop J at first instance given on 19 October 2006, where at [24] Allsop J opined: 

    If the Tribunal, as here, puts an earlier statement or application to the applicant and asks questions about it, it does not seem to me capable of being denied that the answers given to those questions will be information for the purposes of s 424A(3)(b). 

    Allsop J then drew a distinction between the Tribunal using that information, as distinct from using the information taken from the previously given source. 

25. In NBKT Young J’s conclusions on the state of the authorities can be found in [59] and [60] of his Honour’s judgment: 

    59These authorities highlight the importance of giving careful consideration to the nature of the information that is said to fall within s 424A(3)(b) and the circumstances in which it is communicated to, or elicited by, the Tribunal. There may be good reasons for requiring that the applicant affirm or actively give specific ‘information’ for the purposes of the review, in order for the exemption in s 424A(3)(b) to apply. Both SZEEU and NAZY suggest that the exception may not apply where the appellant does no more than affirm the accuracy of a statement which contains many diverse pieces of information.  At the same time, the weight of authority indicates that artificial distinctions should not be drawn between information that is provided by an applicant in the course of his evidence in chief rather than in answer to questions posed by the Tribunal. 

    60In the present case, the relevant information was uncontentious factual material that formed an essential element of the decisions which were under review by the Tribunal. The appellant either expressly provided or affirmed the relevant dates in response to basic propositions put by the Tribunal at the hearing. The Tribunal’s questions arose naturally from the appellant’s application. In these circumstances, and given the uncontentious factual nature of the information, I consider that the exemption in s 424A(3)(b) applies.

26. The approach indicated in this passage is, in my opinion, binding upon me, and is also consistent with the approach taken by another recent Full Court in Applicant S301/2003 v Minister for Immigration & Multicultural Affairs [2006] FCAFC 155 at [16]‑[17]. This requires me to examine the context in which an applicant’s responses to questioning at a hearing occurred, and to consider whether the information which provided the basis for the Tribunal’s questioning can be regarded as being given by an applicant when responding, because it formed part of an uncontentious factual matrix upon which his review application rested.

27. In the present case, I must analyse the applicant’s response to the Tribunal’s question in the passage extracted above: “why did you not apply for refugee status when you went to the Netherlands in 2003?” in the light of the approach suggested by the Full Court. 

1. It is clear that the applicant had no quarrel with the factual premise of the Tribunal’s question.  On the above authorities, I have little doubt, if the Tribunal had split its question into two parts, and first put to the applicant: “do you agree that you travelled to the Netherlands in 2003?”, before it asked: “why did you not apply for refugee status when you were there?”, that a “yes” response to the first question would amount to the giving of that information within the provisions of s.424A(3)(b). As I understood him, counsel for the applicant did not dispute this.

2. In my opinion, the authorities do not require me to arrive at a different conclusion when considering the applicant’s response to the present question in its context. 

3. It is clear that the Tribunal understood the fact of the applicant’s travel to Holland to be uncontentious, and the applicant has understandably accepted this fact without demur.  It was not new information nor surprising information that was being put to the applicant, but relevant travel information which he himself had given to the Department, and which had been referred to in the delegate’s decision.  The point that was being put to him, based on that information, was the very point which the delegate had drawn.  The applicant’s response which explained “there was no reason for me (sic: to migrate) till (sic: before) I went to Holland”, in my opinion, showed that the applicant affirmed the travel information in the course of responding to the Tribunal’s question. 

4. In my opinion, the situation comes within the reference in Young J’s decision to an applicant “adopting in terms” “a specific piece of factual information” (see NBKT [56], quoted above). I consider that applying his Honour’s analysis in [60], that the questioning shows the applicant “affirmed” the travel information “in response to basic propositions put by the Tribunal at the hearing”. 

5. My conclusion that the applicant “gave” his travel information to the Tribunal when answering questions about it at the hearing, means that I do not need to consider whether he also “gave” it when his agent forwarded a copy of the delegate’s decision to the application for review, enclosing factual findings which referred to the travel information.  

6. For the above reasons, I am therefore satisfied that no obligation arose on the Tribunal under s.424A(1) in relation to the travel information which it used in the challenged passage of its reasons.

7. Since I do not accept the ground which was argued, I must dismiss the application. 

I certify that the preceding thirty‑four (34) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  17 April 2007