SZILM v Minister for Immigration
[2007] FMCA 994
•27 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZILM v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 994 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (class XA) visa - no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.91X, 476 |
| Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 X v Minister for Immigration & Multicultural Affairs (2002) 67 ALD 355 WAIJ v Minister for Immigration & Multicultural Affairs (2004) 80 ALD 568 |
| Applicant: | SZILM |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG661 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 9 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser (appearing on a direct access basis) |
| Counsel for the First Respondent: | Mr MP Cleary |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The name of the first respondent be amended to read "Minister for Immigration & Citizenship".
The application filed on 2 March 2006 is dismissed.
The applicant is to pay the first respondent's costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG661 of 2006
| SZILM |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) ("the Act") and has been given the pseudonym "SZILM".
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.476 of the Act filed in the Sydney registry of the Federal Magistrates Court of Australia on 2 March 2006 for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal decision was made on
20 January 2006 and handed down on 31 January 2006, affirming a decision of a delegate of the first respondent made on 26 September 2005, refusing to grant the applicant a Protection (Class XA) visa. The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.
The applicant seeks an order that the respondents show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Act. Pursuant to r.44.11(c) of the Federal Magistrate Court rules 2001 (Cth) ("the Rules"), I dispensed with a hearing under r.44.12 and set the matter down for final hearing.
A Court book ("CB") prepared by the first respondent’s solicitors was filed and served on 2 May 2006. I have marked it Exhibit "A" and it was read into evidence.
Background
The Tribunal decision of Ms A O'Toole, reference N05/52464, provides the following background information:
The applicant, who claims to be a citizen of Nepal, arrived in Australia on 4 August 2005. On 14 September 2005 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (the Act). On 26 September 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa and on 11 October 2005 the applicant applied [to the Tribunal] for review of that decision.(CB 80)
The written submissions prepared by Mr Cleary contain the following summary of the applicant's claims. I adopt paragraphs 11 to 13 of those submissions for the purposes of this judgment:
11. The applicant claims he fears that should he return to Nepal, the Maoists and the Nepalese authorities will persecute him by reason of his political opinion.
12. The applicant claims (CB 19-22, 85-92):
· the Maoists currently controlled the area where he lived in Nepal, namely Butwal;
· on 20 January 2005, the applicant's family received a ransom letter from the Maoists, threatening to take the applicant prisoner if money was not paid;
· on 1 February 2005, the applicant was abducted and placed in a training camp for 12 days and told if his family did not pay the ransom he would be forced to join the Maoists;
· he trained with the Maoists and received beatings to the point of losing consciousness;
· on 12 February 2005, he was ordered to ambush army personnel. Twenty prisoners were killed;
· following this, the applicant escaped and fled to India on 13 February 2005;
· the applicant asserts his kidnapping was reported in the newspaper, and a second ransom letter was sent to his family;
· later, the applicant returned to Butwal, and stayed with his uncle (a police officer). The police questioned him subsequently. Following this his uncle was killed;
· the applicant then went to Kathmandu, stayed with his parents, and then left for Australia (arriving there on 4 August 2005) on a student visa.
13. When he departed Kathmandu airport he did not experience any difficulties with the Nepalese authorities. Regardless of that, the applicant claimed that the Nepalese authorities suspected him of being a Maoist sympathiser and would arrest him if he returned.
The Tribunals findings and reasons
A summary of the Tribunal's findings is also contained in the first respondent's written submissions prepared by Mr Cleary and I adopt paragraphs 14 to 16 of those submissions:
14. The Tribunal reviewed at length the claims and evidence. Firstly, it reviewed the applicable law in unobjectionable terms. It then set out the claims and evidence and the independent country information. Next it set out the s424A letter, a reply to the s424A letter, and finally set out its findings and reasons.
15.The Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason and was not someone to whom Australia had protection obligations under the Convention (CB 103). The Tribunal rejected the application for asylum and on the following grounds:
· The Tribunal found that the applicant lacked credibility. It found the applicant's evidence was inconsistent, contradictory and implausible. In particular, the Tribunal made this finding based on the following (CB 101-102):
i) the applicant's explanation for waiting until 4 August 2005 until leaving Nepal to come to Australia was unconvincing;
ii) the applicant's evidence given at the Tribunal earlier that he was not tortured by the Maoists was inconsistent with the evidence he later gave in the hearing that he was tortured by the Maoists during the 12 day training camp;
iii) that the applicant's written evidence dated 11 October 2005 regarding his fears of being harmed by Nepalese authorities was inconsistent with his oral evidence given at the hearing – that the Nepalese authorities could not offer him security;
iv) the 15 December 2005 letter from the applicant's brother contradicted the applicant's claims that the Maoists had abducted him;
v) the applicant's claim that he was of adverse interest to the Nepalese authorities was not supported by the applicant's unhindered departure from Nepal;
· the Tribunal rejected the applicant's claim that he was ever abducted, beaten and tortured by the Maoists at any time prior to his departure from Nepal (CB 101);
· the Tribunal found that the explanation provided for by the applicant's brother in the 15 December 2005 letter as to the abduction was unconvincing - there being no mention in the letter of any abduction of the applicant by the Maoists (CB 102);
· the Tribunal found that there was no credible evidence to substantiate that the applicant was at risk of suffering serious harm in the reasonably foreseeable future if he returns to Nepal (CB 103).
16.For these reasons, the Tribunal found the applicant was not a refugee and affirmed the delegate's decision.
Application for review of the Tribunal's decision
On 2 March 2006, the applicant filed an application for review under s.39B of the Judiciary Act. In accordance with orders made at the first Court date, the applicant filed an amended application on 7 July 2006 containing the following grounds:
1.An aspect of the applicant's claim was that he faced a risk of being abducted by the Maoists in the future because he was a "young [fit] guy" and the Maoists want "fighter men". (CB 84.2) In the circumstances, the Tribunal should have considered whether the Maoists forcibly recruited young men and, if so, whether the applicant was a member of a particular social group and had a well-founded fear of persecution on this basis. However, the Tribunal failed to consider this aspect of the applicant's claim, giving rise to jurisdictional error.
2.The applicant provided a letter and newspaper article to the Tribunal written in Nepalese. The Tribunal failed to obtain an English translation of these documents. On this basis, the Tribunal fell into jurisdictional error.
3.The applicant's brother informed the Tribunal that he was willing "to be interviewed" and gave the Tribunal his contact telephone number. The Tribunal should have invited the applicant's brother for an interview. Its failure to do so constituted jurisdictional error.
Submissions and reasons
At the commencement of the hearing, Mr Zipser, appearing for the applicant, indicated that the applicant wished to abandon the third ground of the amended application and only press the first (“the particular social group issue”) and second (“the overall documents issue”) grounds. In respect of the first ground, the applicant claims that prior to coming to Australia he was kidnapped by the Maoists militia and forcibly recruited at one of their training camps. He subsequently managed to escape and depart for Australia. Mr Zipser contends that the applicant's claim is not just that he had been forcibly recruited in the past, but that he faces a risk of being forcibly recruited in the future; which is one of his fears about returning to Nepal.
The Tribunal rejected the applicant's claim about what occurred to him in the past and was not satisfied that he had suffered any persecution in Nepal prior to his arrival in Australia. Mr Zipser contends that a person’s claim that “I maybe forcibly recruited by a group” can constitute persecution for a Convention reason. Mr Zipser referred to Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25 where consideration was given to, amongst other things, whether young able bodied men in Afghanistan could constitute a particular social group. The High Court in that case said that they could.
Mr Zipser contends that the effect of Applicant S is that if a person claims fear of being forcibly recruited by a minority group to fight, then a question arises as to whether that person is part of a particular social group. Mr Zipser argues that the Tribunal did not consider this, which gave rise to jurisdictional error.
Mr Zipser then referred to the following passage in the Tribunal decision:
Overall, I do not accept that the applicant was abducted and tortured by the Maoists. I do not accept that he is of adverse interest to the Maoists or the Nepalese authorities. I am not satisfied that he was assaulted or harmed in any way by the Maoists. I am not satisfied that he was forced to go into hiding because of a fear of persecution. There is no credible evidence upon which I could find that the Applicant stands at risk of suffering serious harm in the reasonable foreseeable future if he returns to Nepal.(CB 103.5) [emphasis added]
Mr Zipser argues that the difference in the position between the applicant and the first respondent comes down to the meaning of the second sentence in the passage above. The applicant's position is that the second sentence must be read in the context of the paragraph in which it appears. The context explains that the applicant was not assaulted or harmed in any way by the Maoists when he was in Nepal because he was not of adverse interest to them or the Nepalese authorities. Mr Zipser acknowledges that the use of the word “is” in the second sentence results in an ambiguity. He contends that the applicant’s position would have been advanced if the Tribunal had used the word “was” instead.
Mr Cleary submits in respect of the first ground that the applicant’s argument is unmeritorious because his claim was dealt with in the following way by the Tribunal:
·First, the Tribunal set out the very claim the applicant asserts it did not consider when it stated, “that if [the applicant] returns to Nepal he will suffer persecution at the hands of the Maoists and also the authorities”.(CB 100.7)
·Then, after carefully analysing the claims, the Tribunal stated “I do not accept that [the applicant] is of adverse interest to the Maoists or the Nepalese authorities”.(CB 103.6) The Tribunal clearly set out and dealt with all of the applicant's claims in accordance with requirements of the Act. The applicant's argument, in essence, seeks merits review of the Tribunal decision.
Mr Cleary referred the Court to the passage from the Tribunal decision which is reproduced at [12] above. He contends that the last sentence of that paragraph should be read as a summary which links all of the previous sentences. It is submitted that in light of the way the decision developed, the sentence showed reference to the Maoists and Nepalese government claims, not just to what happened to the applicant in the past.
Mr Cleary submits that the argument mounted by the applicant is seeking merits review of the Tribunal decision by asking this Court to determine that there was harm suffered by the applicant when the Tribunal has found that there was not.
I agree with the submissions made by Mr Cleary in respect of the first ground. A review of the decision indicates that the Tribunal member carefully analysed the applicant’s claims and dealt with each issue in accordance with its obligations. The significant issue it identified was the applicant’s credibility, which is a matter of fact that can only be decided by the Tribunal not by the Court. I do not believe that this view would have altered significantly even with the interpretation that Mr Zipser suggests in respect of the last sentence of the paragraph reproduced at [12] above. The review undertaken by the Tribunal was sufficiently comprehensive. If the Tribunal member did make that mistake in expression, it was not consistent with the remainder of the decision.
In respect of the second ground, which Mr Zipser has labelled “the overlooked document issue”, he refers to two documents that the applicant's brother provided to the Tribunal:
a)A letter purporting to be a letter of demand from the Maoists to the applicant's family; (CB103.2) and
b)A section of a Nepalese newspaper containing an article which reported the applicant's abduction by the Maoists.(CB 92.10)
The documents are not written in English script. It appears that the Tribunal did not obtain translations of the documents, although, as noted above, it was aware of their basic contents. The Tribunal made the following finding:
In making the above finding I have had regard to the statements provided by the Applicant's brother, the documents forwarded to the Tribunal by the applicant on 15 December 2005, those are; a letter purported to be a letter of demand from the Maoists to the applicant's family and a newspaper article from Nepal. However, given the degree of credibility problems with the evidence of the applicant, I cannot give any weight to the statements relating to the applicant's material claims as set out in these documents.(CB 103)
Mr Zipser argues that if the Tribunal had translations of the documents, it would then be entitled to not believe the applicant and not place any weight on them. That process of reasoning has been endorsed in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49] per McHugh and Gaudron JJ:
In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.
Mr Zipser argues, however, that that did not occur in the present case. As the documents were in Nepalese script, the Tribunal was unable to have regard to its complete contents. That is an important distinction from Applicant S20/2002.
The argument in Applicant S20/2002 that the Tribunal’s reasoning process was illogical was rejected by the majority who said that the Tribunal was entitled to proceed in the way it did.
Mr Zipser argues that the Tribunal does have an obligation to translate documents it receives into English. In X v Minister for Immigration & Multicultural Affairs (2002) 67 ALD 355 at [30], Gray J stated:
This was an occasion on which the Tribunal was "under an obligation to obtain a translation of a particular document which is in a foreign language and whose relevance has been explained" to it. To fail to do so was to act without power, because the Migration Act should be construed as not permitting the Tribunal to distinguish against the appellant on the ground of his race, language, or national or social origin, by refusing to take into account a document of his making because it is not in the English language. It is one thing for the Tribunal to request that documents be translated into English. It is quite another to refuse to take into account a document that is asserted to be relevant to a specific issue on the ground that it has not been so translated.
Also in WAIJ v Minister for Immigration & Multicultural Affairs (2004) 80 ALD 568 at [6] - [8], Lee and Moore JJ stated:
6 On or about 26 February 2001 the appellant signed an application for a "protection visa", prepared on her behalf by a migration agent. On 21 March 2001 a delegate of the Minister refused the application for a visa and the appellant sought review of that decision by the Tribunal. On 12 April 2001 the appellant appointed another migration agent, who was also a legal practitioner, to assist her. On 14 May 2001, that agent forwarded a submission in support of the appellant’s application for review. Enclosed with the submission were two documents forwarded from Iran. One document was said to be a letter to the appellant from her sister and the other a notice of dismissal issued by the appellant’s former employer in Iran forwarded by the sister by facsimile transmission, presumably to the office at the detention centre. The documents were in Persian script. No translation was forwarded to the Tribunal.
7 On 21 May 2001 the Tribunal conducted a hearing at which the appellant responded to the Tribunal’s questions through an interpreter. The two documents were not discussed at that hearing. On 21 August 2001 the Tribunal determined that the grant of a visa should be refused. The reasons for that decision provided by the Tribunal did not refer to the documents.
8 In about September 2001 the appellant applied to this Court for judicial review of the Tribunal’s decision. Pursuant to O 80 of the Federal Court Rules the Court appointed pro bono counsel to represent the appellant. On 4 April 2002 an order was made by a Judge of this Court (RD Nicholson J), by consent, that the decision of the Tribunal be set aside and the matter remitted to the Tribunal for reconsideration. It was a term of the order that the Tribunal give due consideration to the foregoing documents.
In WAIJ, the Court noted that the Tribunal determined that the applicant was not entitled to a protection visa, and spent some time analysing the documents: WAIJ at [12]. Their Honours then reproduced a passage from the Tribunal decision which states:
In my view, these letters do not overcome the problem I have with the applicant's evidence and I place no weight on them as proof of credibility of the applicant's claims.
Mr Zipser submits that this is consistent with Applicant S20/2002 in that the Tribunal looked at the documents and then concluded that it did not believe the applicant's claim, which it is entitled to do.
In WAIJ at [26], Lee and Moore JJ stated:
The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents "do not overcome the problems I have with the applicant’s evidence".
The evidence in the present case indicates that if the two documents had been translated and the Tribunal was persuaded by what they said, there was a good chance that they have affected the outcome of the case. Mr Zipser contends that the Tribunal fell into jurisdictional error by failing to obtain translations.
Mr Cleary submits that the Tribunal found:
[G]iven the degree of the credibility problems with the evidence of the Applicant, I cannot give any weight to the statements relating to the Applicant's material claims as set out in these documents.(CB 103.3)
The decision also comprehensively set out why it found the evidence of the applicant untruthful.(CB 101-102) The Tribunal found it “inconsistent, contradictory and implausible”.(CB 100.9)
Mr Cleary submits that the Tribunal in WAIJ simply found that because the evidence of the applicant was not believed, it gave weight to the documents. Mr Cleary submits that WAIJ at [24] and [26] states:
24.The importance of the Tribunal’s function and acknowledgement of the foregoing principles is recognised by s 430 of the Act which requires the Tribunal to explain its decision by providing a written statement that sets out the findings made by the Tribunal on material questions of fact, the evidence or material relied upon for those findings, and the reasons of the Tribunal.
26. The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents "do not overcome the problems I have with the applicant’s evidence".
Mr Clearly submits that the reference to the applicant's evidence was the only allegation of untruthfulness by the Tribunal, which is different to this matter where there has been a history of untruthfulness. WAIJ at [27] continues:
Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred.
Mr Cleary submits that the Tribunal in WAIJ was bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant's credibility. Failure to do so would result in jurisdictional error. In WAIJ, their Honours summarised at [28]:
This appeal did not involve a case which the credibility of the applicant had been destroyed by stark findings of untruthfulness.
Mr Clearly submits that in this case, it was unnecessary for the Tribunal to have the documents translated and read as it was unnecessary to consider those documents in order to find that the applicant's case had failed.
Mr Cleary submits that when an applicant cannot be believed, the Tribunal cannot be satisfied with an alleged corroboration, as discussed in Applicant S20/2002. This case is not a case where, for example, the Tribunal has found it unnecessary to consider corroborative material because it considers unlikely that the events described by the applicant did occur: WAIJ at [27]. It is submitted that the Tribunal correctly found that:
In light of the fundamental lack of credibility within the Applicants evidence I am not satisfied that the statements relating to the applicant's material claims in the two documents was true.
(CB103.5)
Consequently, the Tribunal committed no legal error.
Mr Cleary submits that the case of X does not apply to the rule discussed in WAIJ. That was a case about whether or not the Tribunal was obliged to take into account relevant passages from a diary which was not translated. It was not a case where there was an issue about credit or truthfulness of the applicant.
I agree with the submissions made by Mr Cleary that the facts in this matter differ from those in WAIJ. In this Tribunal decision, the member was aware of the contents of the two documents as they were provided to the Tribunal by the applicant’s brother attached to a four page letter dated 15 December 2005.(CB 92-94) The translation of the documents into English would not have acted as corroborative evidence as the Tribunal provided a comprehensive list of material which it had considered in coming to its conclusion. It indicated that the two documents provided by the applicant’s brother would not alter that view.
Conclusion
I am satisfied that neither of the grounds contained in the amended application can be sustained and consequently the application should be dismissed.
I am satisfied that an order for costs should be made this matter.
I order that the applicant pay the first respondent's costs and disbursements of an incidental to this application.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Associate:
Date: 27 June 2007
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