SZIEA v Minister for Immigration - [2007] FMCA 775

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIEA v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 775

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(1); 91S; 424A; 424A(1); 474; pt.8 div.2

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
WAJR v Minister for Immigration and Multicultural and Indigenous Affairs 204 ALR 624
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12

Applicant:

SZIEA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG216 of 2006

Judgment of:

Emmett FM

Hearing date:

10 May 2007

Date of last submission:

10 May 2007

Delivered at:

Sydney

Delivered on:

28 May 2007

REPRESENTATION

Applicant appearing on his own behalf

Counsel for the Respondent:

Mr D. Godwin

Solicitors for the Respondent:

Mr G. Johnson, DLA Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG216 of 2006

SZIEA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 6 December 2005 and handed down on 3 January 2006.
The Applicant was born on 5 October 1978 and claims to be from Malaysia (“the Applicant”).
The Applicant arrived in Australia on 16 February 2005 having legally departed Malaysia on a passport issued in his own name.
On 31 March 2005, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution by religious extremists, the police and the “present ruling government” for his religious and political beliefs. The Applicant described himself in his protection visa application as a “liberal Muslim” and that he would provide details of his claims in a statement.
On 26 April 2005, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 29 May 2005, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. No further material accompanied this application for review. On 6 December 2005, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 19 January 2006, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

On 3 August 2005, the Tribunal invited the Applicant to attend a hearing on 30 August 2005. By way of letter dated 2 September 2005, to Tribunal informed the Applicant that the hearing was postponed to 28 September 2005.
The Applicant attended the hearing before the Tribunal on 28 September 2005 (“the First Tribunal Hearing”) and gave oral evidence in which the Applicant expanded on the claims he made in his protection (Class XA) visa application.
The Tribunal noted inconsistencies between the Applicant’s oral and written evidence. On 30 September 2005 the Tribunal wrote to the Applicant, pursuant to s.424A, identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the Applicant to comment upon it (“the s.424A Letter”).
The Applicant responded by way of a letter, dated 24 October 2005. In the letter the Applicant claimed he was never detained by the police or present government because of his political and religious beliefs, but had enemies who had beaten him and registered a false police case against him.
In the letter of 24 October 2005, the Applicant made several further claims, including that:
·The interpretation at the hearing on 28 September 2005 was not of an adequate standard;
·He was unaware of the claims made on his visa application; and
·The migration agent assisting him with his visa application had been unaware of information regarding his employment and had misunderstood his claims.
On 26 October 2005, the Tribunal invited the Applicant to attend a second hearing on 11 November 2005.
On 4 November 2005, the Applicant requested in writing that this hearing be postponed.
On the day of the hearing the Tribunal received a medical certificate regarding the Applicant and agreed to postpone the hearing until 2 December 2005.
The Applicant gave oral evidence before the Tribunal, at the second hearing on 2 December 2005 (“the Second Tribunal Hearing”), in which the Applicant expanded on the claims he made at the First Tribunal Hearing.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources as well as the application for review.
At the Second Tribunal Hearing the Tribunal noted the Applicant’s lack of knowledge of the political party of which he claimed to be a member and the Applicant’s inability to remember details of his past political involvement.
The Tribunal noted further inconsistencies in the oral evidence given at the First Tribunal Hearing and the Second Tribunal Hearing, as well as in the Applicant’s protection visa (Class XA) application.
The Tribunal found the Applicant not to be a credible witness.
The decision of the Tribunal is accurately summarised by the first respondent in his written submissions as follows:
“The RRT Decision
13. The RRT concluded that the applicant was not a truthful and credible witness (CB 115). Firstly there was his lack of knowledge about PAS. Secondly there were inconsistencies in the applicant’s claims concerning his role in the PAS party. Thirdly, the applicant’s inability to explain anything about his religious beliefs reflected poorly on his claim of persecution because of his religious beliefs. Fourthly, the applicant’s claims about being attacked because of his religious and political beliefs were vague and internally inconsistent in respect of timing and where he lived after the attack.
14. The RRT concluded that the applicant had not been attacked because of his religious and political beliefs and that no false case had been registered against him (CB117).
15. The RRT relied upon independent information concerning protection against discrimination in Malaysia, together with the applicant’s employment history and his ability to obtain a passport and travel overseas on at least 2 occasions to support its conclusion that the applicant had not subject to discrimination which amounted to serious harm by reason of his Pakistani ancestry.
16. The Tribunal concluded its decision by noting that the applicant had made no complaint about the standard of interpretation in the course of either of the hearings. The Tribunal then states (AB118):
“At the second hearing the applicant claimed that he was confused. The applicant’s claim that he was confused was only raised by the applicant when inconsistencies in his evidence were put to him. The Tribunal is of the view that the applicant has only raised his mental state, problems with the interpreter, poor memory and confusion to overcome the serious flaws in his evidence.”

The proceeding before this Court

The Applicant was unrepresented before this Court although had the assistance of an interpreter.
The Applicant confirmed that he relied on an application filed on 19 January 2006 identifying the following grounds:
“1. The decision on my Protection Visa Application was made without taking all the circumstances in to account.
2. The Migration Act of 1958 was not properly observed.
3. The decision was made contrary to the definition of the Refugee Convention.”
The Applicant also confirmed that he relied on written submissions filed by him on 15 February 2006.
Before this Court, the Applicant submitted for the first time that the Tribunal did not understand what he was saying and that his English was not very good. He said that he did not have time to say a lot of reasons to the Tribunal and just told the Tribunal one thing, namely, that he was in danger. The Applicant stated that he was forced to leave his country, that he was now in Australia, it is very difficult and that otherwise his country is a “good country”.
The Applicant further stated that he suffered from extreme high fevers six months before arriving in Australia. When asked by this Court whether he had provided any medical evidence of his suffering to the Tribunal, the Applicant responded that the Tribunal had not asked and therefore he did not give it.
The Applicant was then invited by this Court to provide any medical evidence in support of his allegation that he has suffered brain impairment. The Applicant responded that “he” was the evidence.
The Applicant informed the Court that he had a wife and child still in Malaysia. The Applicant also said that his brain was not functioning very well, and that at the Second Tribunal Hearing he was asked questions that he found difficult to answer because he was scared of the Tribunal member, although he did not know why. He said that he wanted to speak but was unable to do so.
When asked by the Court to identify any particular difficulties he had he said that he could not remember, that he did not know the law and it was very difficult. The Court pointed out to the Applicant that he had not provided any evidence in support of these contentions which would at least require a copy of the transcript. The Court noted that directions had been made on 16 February 2006 directing the Applicant to file and serve any evidence in support of his application by 30 May 2006.
The Applicant did not seek an adjournment and, in circumstances where the Applicant was not able to provide any oral particulars as to any particular complaint about the conduct of the Tribunal beyond those already mentioned, this Court was satisfied that the interest of justice did not demand that the proceeding be adjourned to provide the Applicant with any further time to put on any further evidence.
At the heart of the Applicant’s submissions, appears to be a complaint that the Tribunal did not have sufficient regard to his psychological condition.
For the sake of completeness the submissions written by the Applicant are as follows:
“1) All the circumstances were not taken in to Account:
a) The Tribunal in its decision states that I didn’t faced any discrimination in Malaysia because of my Pakistani Origin and provides the Independent information that ‘ The constitution provides for equal protection under the law and prohibits discrimination against citizens based on religion, race, descent or place of birth’ I personally agree that it is stated in the constitution but in real life things are different. I did face serious discrimination in Malaysia because of my Pakistani origin, particularly, when I raised my voice against the unfair policies of the government or PAS party. The Tribunal officer never took in to account the inconsistent nature of life in real in Malaysia and what has been written in the constitution.
b) The Tribunal in its decision states that I only claimed to be confused because of the inconsistencies I had in my evidence during my interview. I totally disagree with this finding. I have been seeing doctor for the Psychological problems I have, which includes tension headaches, at times memory loss, blood in my eyes and many other problems related with severe stress and depression. My mental/medical condition was not taken in to account by the Tribunal.
c). My inability to explain properly to the Tribunal at the hearing, because of my mental condition, and inability to provide hard evidence to the Tribunal, in order to establish the serious harm I would face in Malaysia if I go back, does not proves that my claims for protection are false. My psychological condition should have been taken in to account.
2) The decision was made contrary to the definition of Refugee convention and the Migration Act of 1958.
a) Part of Article 1A (2) of the Refugee convention states that
‘Owing to well founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion’
I fear serious harm for the reason of my race, nationality, religion and political beliefs if I would go back to Malaysia. These are all convention related reasons of my fear of persecution. I understand that there might have been inconsistencies in my evidence to the Tribunal, but it wasn’t because I was making fake or false claims but mainly because of my mental/medical condition.
b) The Tribunal must have investigated my mental situation through its own resources. And, after proper investigation it should have made its decision. I am a human being and human life has great value in countries like Australia, and here I am talking about my life. So, the Tribunal should have been more concerned about my life instead of hurriedly making its decision. It should have investigated my medical condition properly, which have led to all these inconsistencies during my oral evidence.”
As stated above, despite enquiries by this Court on more than one occasion of the existence of any medical report or evidence in support of his assertion of a “mental/medical condition”, none was provided. Moreover, the Applicant told the Court that he had no other medical evidence in support.
The medical report sent to the Tribunal, and to which it had regard, arose from a hand written report from Griffith Base Hospital and signed by Dr A.T. McKendry. That hand written letter is in the following terms:
“To whom it may concern
re [Applicant]
DOB 5.10.78
This man attended Emergency Dept here at Griffith complaining of constant dull central and frontal headaches. He associated these with emotional tension & stressful situations & explained that as a refugee he was facing possibly his last tribunal hearing soon.
He also explained that as a Muslim he had just finished Ramadan (the fasting month). He expressed fear that because of the emotional & physical stresses of Ramadan, he would not be able to cope with the tribunal. In turn he felt that these stresses were aggravating his headaches.
Physical examination revealed no sinister abnormalities & this, with the history (as given) leads to the diagnosis of tension (muscle contraction) headaches.
I believe that it is fair for this man to have a delay of 1 to 3 weeks for his tribunal case in order to improve his health but it is equally important that the case be held soon.”
Upon receipt of that hand written report, the Tribunal contacted Dr McKendry requesting a medical certificate. A medical certificate was then faxed to the Tribunal dated 11 November 2005 signed by

Dr McKendry and in the following terms:
“To whom it may concern,
I saw this man whilst working at Griffith base Hospital in the Emergency department. He complained of overwhelming tiredness, lethargy, sleep disturbance, anxiety and depressive symptoms.
He stated that these symptoms were as a result of his impending Refugee Tribunal hearing and also due to the fact that he had just finished Ramadan (religious fasting period of one month), which normally was a trying & debilitating time, for him.
In view of the above and his clinical findings, I believe that he is unfit for the Tribunal proceedings from 11/11/05 until 25/11/05. I would recommend that, however, the matter for review by the tribunal, be finalized as near to 25/11/05 as possible
Yours faithfully
[signed Dr A.T. McKendry]”
As stated above there has been no other medical evidence provided by the Applicant either prior to that date or since that date in respect of his medical condition.
Ground 1 of the Applicant’s application is a complaint that the Tribunal made its decision without taking all his circumstances into account.
As expressed in the Applicant’s written submission in sub-para 1(a) of the Applicant’s written submissions (see paragraph 38 above in these Reasons) the Applicant disagreed with the Tribunal’s acceptance of independent information before it about the Malaysian constitution. That finding by the Tribunal related to the Applicant’s claim of having suffered discrimination in Malaysia because of his Pakistani origins. The Tribunal noted its exchange with the Applicant about this issue and noted that the Applicant stated that “native Malays don’t like strangers”. The Tribunal noted that it put to the Applicant in its s.424A Letter that “The Constitution provides for equal protection under the law and prohibits discrimination against citizens based on religion, race, descent, or place of birth.”
The Tribunal noted the evidence provided by the Applicant that he ran his own business and was previously employed as a sales representative. The Tribunal noted the Applicant’s oral evidence at the Second Tribunal Hearing that his life was perfect before he was attacked in 2003. The Tribunal noted that the Applicant, having obtained a passport in August 2004, travelled overseas on at least two occasions.
The Tribunal noted that the Applicant’s claim of persecution because of his Pakistani origins had been in the nature of “verbal abuse”. The Tribunal considered the notion of “serious harm”, pursuant to s.91R(1) of the Act, and was not satisfied that the Applicant had been subject to discrimination in Malaysia that involved “serious harm”. That was a finding that was open to the Tribunal on the evidence and material before it and for which it provided reasons.
The Applicant does no more in his written submissions than disclose his disagreement with the findings made by the Tribunal about that matter. This is an impermissible attempt to review the Tribunal’s factual findings (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”)).
Paragraph 1 of the Applicant’s written submissions also complains that the Tribunal failed to take into account his mental and psychological condition.

However, the Tribunal had regard to the medical certificate of Dr McKendry who had stated that, in his view, the Applicant was unfit for Tribunal proceedings between 11 November 2005 and 25 November 2005 because of his symptoms of “overwhelming tiredness, lethargy, sleep disturbance, anxiety and depressive symptoms”, following the completion of religious fasting for one month.
In his hand written note faxed to the Tribunal on 7 November 2005, Dr McKendry noted that “Physical examination revealed no sinister abnormalities” and led the doctor to a diagnosis of “tension (muscle contraction) headaches.” Neither letter from Dr McKendry suggested that there was any ongoing mental impairment suffered by the Applicant that would affect his ability to participate effectively in a Tribunal hearing.
The Tribunal noted that the Applicant complained to it that interpretation at the first hearing had led to misunderstandings and confusion. The Tribunal also noted that at both the First Tribunal Hearing and Second Tribunal Hearing, the Applicant had been informed that if at any stage of the hearing he had any difficulty understanding the interpreter he should tell the Tribunal. The Tribunal noted that the Applicant did not indicate that he had any difficulty understanding the interpreter at either the First Tribunal Hearing or Second Tribunal Hearing.
The Tribunal also noted that at the Second Tribunal Hearing the Applicant claimed that he was confused. The Tribunal found that the Applicant’s claim of confusion only arose when inconsistencies in his evidence were put to him. The Tribunal found that “the applicant has only raised his mental state, problems with the interpreter, poor memory and confusion to overcome the serious flaws in his evidence.”
Those are findings by the Tribunal that were open to it on the evidence and material before it and for which it provided reasons.
Counsel for the First Respondent referred the Court to the words of French J in WAJR v Minister for Immigration and Multicultural and Indigenous Affairs 204 ALR 624 (“WAJR”)at [43] as follows:
“It is undoubtedly the case that many people, perhaps most people, who appear before the tribunal are under emotional stress. This does not require an inquiry by the tribunal in every case where an applicant is evidently under stress, into the question of the applicant’s fitness to appear. The tribunal would be entitled to expect that a migration agent appearing for an applicant in such a condition would bring it to the attention of the tribunal and seek to support it by medical evidence with a view to securing an adjournment. The tribunal is, of course, entitled, and may be obliged in some cases, to take into account the emotional state of an applicant when assessing the applicant’s evidence. That kind of assessment is ultimately central to the fact-finding process of the tribunal. It is not a matter in which the court can substitute its own opinion in judicial review proceedings.”
In WAJR, the applicant had referred at one point to his “mental condition”, however, French J had found that there was no evidence to suggest that “the Tribunal was aware that the appellant was labouring under such a mental or physical disability if he could not meaningfully participate in the hearing or that would have a significant effect upon his credibility.”
Similarly, in the case before this Court, there was no evidence before the Tribunal to suggest that the Applicant was unable to participate effectively in the hearing. The Tribunal did not conduct its review and make its decision in ignorance of the Applicant’s medical condition (Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293).
In the circumstances, a fair reading of the Tribunal’s decision makes it clear that the Tribunal took into account the Applicant’s “mental situation” and “psychological condition”.
A fair reading of the Tribunal’s decision makes it plain that the Tribunal had regard to the Applicant’s circumstances, in particular, his alleged mental impairment, poor memory and confusion.
Paragraph 1 of the Applicant’s written submissions otherwise disagrees with the factual findings made by the Tribunal and therefore invites merits review which this court cannot undertake (Wu Shan Liang).
Accordingly, ground 1 is not made out.
Ground 2, as supported by the Applicant’s submission, appears to be a complaint that the Tribunal failed to investigate the Applicant’s mental condition.
However, upon receipt by the Tribunal of Dr McKendry’s hand written note, the Tribunal did seek further information from Dr McKendry and had regard to that material. In accordance with Dr McKendry’s recommendations, the hearing was postponed until after the 25 November 2005. The Tribunal noted that Dr McKendry recommended that the hearing should be conducted as soon as possible after that date.
In the circumstances the Tribunal conducted its review and made its decision in accordance with the available medical evidence. The Tribunal is not obliged to make any further investigations (Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ).
Otherwise the Tribunal sent to the Applicant the s.424A Letter inviting the Applicant to comment upon inconsistencies that the Tribunal considered may be the reason for it affirming the decision under review. The Applicant responded in writing to the s.424A Letter and had the further benefit of another hearing at which he was able to make further oral submissions.
Ultimately, the Tribunal rejected the Applicant’s claims and found the Applicant not to be a truthful or credible witness.
In particular, the Tribunal noted that the Applicant’s claims about the alleged attack upon him were “vague” and he did not know who had attacked him or why he had been attacked. The Tribunal also noted internal inconsistencies at the first hearing as to when the attack occurred and internal inconsistencies as to where the Applicant lived following the attack. The Tribunal noted that the Applicant was unable to explain at the second Tribunal hearing anything about his religious beliefs and had not referred to such a claim at all at the First Tribunal Hearing. The Tribunal noted the Applicant’s lack of knowledge of the PAS Party and his inconsistent evidence in relation to his role in that party.
The Tribunal concluded that it was not satisfied that there is a real chance of the Applicant being persecuted for reasons of his race, religious or political opinion or any other Convention ground if he were to return to Malaysia. The Tribunal, therefore, concluded that it was not satisfied that the Applicant had a well-founded fear of persecution for a Convention reason.
Those findings and conclusions were open to the Tribunal on the evidence and material before it and for which it provided reasons.
The Tribunal complied with its obligations pursuant to s.424A(1) of the Act by sending its letter dated 30 September 2005 to the Applicant explaining the relevance and inviting the Applicant to comment. The Applicant was otherwise invited to come to two hearings before the Tribunal and all the evidence given at both was taken into account by the Tribunal.
Accordingly, ground 2 is not made out.
Ground 3 of the application essentially disagrees with the findings and conclusions made by the Tribunal. The Applicant asserts that inconsistencies in his evidence were explained by his medical condition. That matter was considered by the Tribunal and which it rejected. As stated above, such a finding was open to the Tribunal on the evidence and material before it and for which it provided reasons.
This ground would otherwise seek to challenge the Tribunal’s assessment of those matters thereby inviting impermissible merits review (Wu Shan Liang ).
Otherwise, the Tribunal complied with its statutory duties in the making of its decision, including in the conduct of its review.

Conclusion

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, commenced by way of application filed on 19 January 2006, is dismissed.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 28 May 2007