SZIOP v Minister for Immigration
[2006] FMCA 1656
•27 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIOP v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1656 |
| MIGRATION – RRT decision – Mongolian claiming persecution for political opinions – Tribunal disbelieved significant claims – not satisfied that other incidents occurred due to political opinions – no jurisdictional error found – application dismissed. |
Migration Act 1958 (Cth), ss.424A, 424A(1), 474(1), 476, 476(1)
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Htun v Minister for Immigration& Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
SZDTZ v Minister for Immigration & Anor [2005] FMCA 1392
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225
| Applicant: | SZIOP |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG920 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 27 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 27 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Dr V Wan |
| Counsel for the First Respondent: | Ms L Clegg |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG920 of 2006
| SZIOP |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 28 March 2006 under s.476 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 15 February 2006 and handed down on 28 February 2006. The Tribunal affirmed a decision made by a delegate on 20 October 2005, which refused to grant protection visas to the applicant, his wife, son and mother.
The latter three people were identified in the applicant’s protection visa application as persons who did not make their own claims to refugee status, and no such claims were made subsequently by them to the Tribunal. The Tribunal’s decision therefore addressed only the position of the applicant husband, and referred to him as “the applicant”.
The applicant has been represented in this Court at all stages on a direct client basis by a barrister who appeared today. He did not have instructions to represent the other three members of the family, and made no application for them to be joined as applicants.
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 remit the matter to the Tribunal unless I am satisfied that its decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa.
The applicant and the other visa applicants arrived in Australia on one month visitor visas in August 2005. There is a suggestion in the papers that the purpose of their visit was to attend the wedding of the applicant’s sister. The protection visa application lodged on 23 September 2005 stated that she was already present in Australia, studying. She is identified in the application as the person who assisted the applicant to prepare the protection visa application, although she did not claim to be a registered migration agent.
In response to questions seeking to discover why the applicant was seeking protection in Australia against return to his country of nationality, Mongolia, the applicant stated:
Why did you leave that country?
I am a supporter of democracy in Mongolia. According to this point of view, I record and collect materials and files which is shown authorities’ activities and actions against Mongolian democracy.
The approach of officers who work for government towards my recorded materials and files is not pleasant. So myself and my family have been confronting financial, physique and mental pressures from them, since I started to work for [a TV station].
The latest example of their activities which is against to my work is that government people arrested me and brought me to [a] detention centre for 72 hours.
Because I recorded and delivered the video record, which is shown Mongolian parliament member and the vice president of Democratic Party of Mongolia, Mr Gundalai was arrested forcefully on his way to a democracy conference from the airport, to the people through TV.
What do you fear may happen to you if you go back to that country?
1)Nobody will hire myself and my family. We can not find a job.
2)A danger of arrestment which is based on without any reasons to my family and myself.
3)A danger to my family and myself life.
4)A danger of hostage myself and the member of my family.
Who do you think may harm/mistreat you if you go back?
-Police organisations
-Taxation office
-Some people who support Mongolian Revolution Party can be harm to myself and my family.
Why do you think this will happen to you if you go back?
My thought regarding fear of may happen to me and my family if I go back to Mongolia is based on firstly, pressures and terrified experiences in my past and secondly tragedy events which happened to supporters of democracy.
Examples of my bad experiences.
1.When my wife was pregnant stranger made threatened call to my home.
2.Burglars came secretly to my place without economic interest and stole my video records and files for many times.
3.My father died prematurely. I believe that behind of my father’s death something wrong.
4.My relationship with neighbours not good. Because they support the policy of Mongolian Revolution Party. When I was away from house my neighbour man came to my place and insulted with words to my brother. When my brother told him go home, he stabbed with a knife to the boy who are very close relative to us at my home.
On the other hand, people who strongly support democracy in Mongolia often ended with tragedy. For example, journalist who published the article about Mr Nyamdorj (former Minister of Justice of Mongolia and current speaker of Mongolian Parliament) was arrested and put into a prison.
Do you think the authorities of that country can and will protect you if you go back? If not, why not?
However there are a few member from Democratic Party in Parliament they can not make decision by theirself.
Because members of Mongolian Revolution Party took the majority seat of Mongolian Parliament.
Also Mongolian Government is established on consensus between Mongolian Revolution Party and Mongolian Democratic Party.
In result of this Mongolian Democratic Party members can not protect their democracy in Mongolia.
Elsewhere in the application form, the applicant stated that he had qualified as a cameraman in 2002 and had been employed by a TV station between 2002 and 2004. No further details of the claims were provided to the Department, and no supporting evidence was given to the Department.
However, when the applicant appealed to the Tribunal he engaged his present counsel, who is also a migration agent, to assist before the Tribunal. On 12 January 2006, shortly before a hearing which was appointed for 13 January 2006, his counsel forwarded a submission and some supporting material. The submission gave prominence to the applicant’s claim concerning the videotaping of the arrest of a Mongolian opposition party member. It said:
Background to the Application of Protection Visa
2.The primary applicant, [the applicant], had been a professional photographer and been actively supporting the Democratic Party of Mongolia as a member. The Party was also formerly known as Social Democratic Party in Mongolia in appropriate English translation. In or about July 2003, the primary applicant recorded a video tape of a politically controversial event, which was publicly documented illustrating the corrupt Mongolia Government. The contents provoked hostile response from the Mongolian government, subsequently resulting in constant threat, harassment and victimisation of the primary applicant and his family members. The content of the video tape is described in the article annexed and marked with “A”. The following are the relevant paragraphs extracted from the article:
“Lanjar Gundalai, a member of parliament for the opposition Democratic Coalition and vocal opponent of the government, was detained by plainclothes police officers as he attempted to leave the country to attend a regional conference on democracy in Singapore. Witnesses said the police showed no arrest warrants or identity cards. A videotape of the incident allegedly showed Lanjar Gundalai’s driver, who was arrested, being choked, and his assistant being beaten. Lanjar Gundalai was released the next day without charge. No further information was available about the driver.”
3.Subsequent to the recording of the above‑mentioned incident, and distributing and broadcasting of the video tape to the public, the primary applicant was arrested by the police and detained for 72 hours in [a] Detention Centre (“Detention Centre”). The evidence of such arrest and detention is annexed and marked with “B”.
4.Following the arrest and release from the Detention Centre, the primary applicant and his family members constantly experienced physical, mental, and financial pressure from the government, strangers, neighbours and supporters of Mongolian Revolution Party. The applicants seek to adduce six most recent incidents as supporting documentary evidence for well–founded fear of persecution.
The attached press report and other reports clearly identified the date of the Gundalai incident as being 24 July 2003. The “six most recent incidents” which were then referred to in the submission were:
Incident One: Telephone Call Threat
5.Soon after the release of the primary applicant, his pregnant wife was threatened by anonymous telephone call with words to the effect that she should tell her husband, the primary applicant, to be good or else their safety will be put into jeopardy. Annexed and marked with “C” is the affidavit sworn by the primary applicant’s wife.
Incident Two: Burglar
6.The applicants home was repeatedly burgled on 13 April 2001, 2 December 2002 and 23 June 2004 and the police inspection concluded that some photographs, video records and computer at the applicants’ property were stolen, including the video tapes mentioned in paragraph 2. Annexed and marked with “D” is the police report for stolen goods.
Incident Three: Abrupt and Unexplained Death of Primary Applicant’s Father
7.On 22 March 2005, the primary applicant’s father died abruptly and unexplained for unknown reasons, this demonstrates the seriousness of the fear of persecution of the applicant. Annexed and marked with “E” is the medical/death certificate.
Incident Four: Knife‑Wound
8.On 6 September 2003, the primary applicant’s cousin, [name], sustained stabbing wound after a brawl with a neighbour involving heated up political discussion, which resulted in serious injury to his lung. Being very close with his cousin, the applicant is in fear that the same consequence will eventually happen to himself. Annexed and marked with “F” is the medical certificate for [the cousin].
Incident Five: Loss of Employment
9.Since the release from the Detention Centre, the primary applicant has been subject to constant discrimination and abuse at work and subsequently sacked by his employer mainly due to political reasons. Annexed and marked with “G” is the Identification Card for the primary applicant for access to the work.
10.The primary applicant’s experience at the Detention Centre was an example of the element making out the persecution case. The conditions at the Detention Centre is evidenced in the annexure marked with “A” but for the purpose of this submission, the following extract briefly captures the inhumane condition of the Detention Centre:
“However, conditions in detention continued to cause concern. Detainees in [the] detention centre continued to have little or no access to lawyers, insufficient access to toilets and inadequate lighting. In addition, detainees were grouped together without regard to age or the nature of their offence.”
Having been detained in the Detention Centre for 72 hours in such an inhumane condition, with no access to lawyers or family, the primary applicant and his family had suffered psychological and mental disorder for weeks even after the release, consequently damaging him psychologically and mentally.
11.The applicants, having fled from Mongolia for fear of harm to their safety and wellbeing, now have more reasons to fear for persecution were they to return or forced to return to their country. Furthermore, reflecting on the past experience they had with the Mongolian government, it is unreasonable to expect them to or pressure them to avail themselves of the protection of the Mongolian government.
Unreasonable Tax Penalty
12.The applicant was served with numerous tax penalty notices on 2 Jul 2002, 12 June 2003, and 1 August 2004 on unreasonable grounds. It is to be noted that the notices were issued after the incident described above. Annexed and marked with “H” are the copies of the penalty notices issued by the Mongolian Tax Department.
As well as the press reports concerning the Gundalai incident, the applicant’s counsel presented the translation of a statement dated 14 October 2005 by a police colonel, which stated that the applicant’s home “[h]as been burgled for several times on the following dates”, referring to dates in April 2001, December 2002 and June 2004. The report said:
According to police inspection, some photographs, video records and computer from above property address had lost.
Police Department of [district] confirms that above cases are inspected.
Another police report dated 9 November 2005 referred to an incident where a person came to the applicant’s apartment block:
the resident of unit 32, same apartment, [name], came in under the influence of alcoholic and raged to them [to other residents] on September 6th, 2003. Then defendant [name] stabbed with knife to Citizen [other resident] and leaded heavy injury to his lung.
Police Department of [district] confirms that according to Criminal Law, Detective section has been initiated criminal proceeding for above criminal case and defendant [name] has been inspected.
Another document forwarded to the Tribunal was a death certificate for the applicant’s father. His death was described: “was died prematurely on [date in 2005] at age of 52”.
Another document forwarded was corroborative of the applicant’s claim to have been subject to tax penalties.
The applicant attended the hearing with his counsel and members of his family, and the Tribunal included in its statement of reasons an extensive description of its questioning of him and of his wife and mother. A transcript is not in evidence, and the Tribunal’s account has not been challenged. The hearing was interrupted at several points, where the Tribunal refers to there being a “break”.
At the start of the hearing, the Tribunal described the applicant giving clear evidence as to his claimed involvement in the Gundalai incident:
The Applicant told the Tribunal that he had a commercial photography and design business doing business cards and CD covers from home after he obtained a qualification in mid 2002. He continued to run this business even after he was employed as a cameraman by [a TV station] from December 2003 to August 2004. The Tribunal queried these dates of his [TV station] employment but he said those dates were correct. Asked later how long he worked for the TV station, he said it was about 8 months. His wife worked in a bank until she was dismissed, because she was pregnant, in June 2005; their baby was born in July 2005. The Applicant’s mother worked as a sales manager until she quit to come here where she minds the baby while the Applicant and his wife work in a factory; they live with the Applicant’s elder sister.
The Applicant said that the head of the privately run [TV station] is [name] and the company manager is [name] (no relation); he did not know if [the TV station] was run by or linked to any political group but said that these two executives support the MPRP. The Tribunal asked if [the TV station] was also called or known as “Patriot TV” but he said it was not. The Applicant said that his superior was [the company manager]. The Applicant said that his job was in the “political” section; he filmed elections, parliamentary proceedings and rallies and other sensitive issues. A journalist, [name], with whom the Applicant worked, directed what he filmed, but [the company manager] assigned the jobs. The Applicant said he was dismissed on 17 August 2004 because he filmed (the forcible arrest of) former MP Gundalai on 24 June 2003 and was detained for 72 hours and then sacked; he had no documentary evidence about this, only a TV station ID card for the period 31 December 2003 to 31 December 2004. The Tribunal put to the Applicant that he was not employed by [the TV station] in June 2003; the Applicant then said that he meant 24 June 2004 (for the Gundalai incident). He was certain that this was the date and that he was detained for 72 hours after being arrested by two men who did not show ID, on his way to work on the morning of 25 June.
The Tribunal then questioned the applicant extensively, in particular about the inconsistency between his claim that the Gundalai incident occurred during his employment, and the press reports placing it at a date prior to his employment. The Tribunal also questioned the applicant about his claim to have joined the Mongolian Social Democratic Party, including with questions to test his knowledge of that party. The Tribunal said:
After a break the Applicant declined the Tribunal’s invitation to say anything more about the matters already discussed.
The Applicant said he didn’t complain or do anything about his dismissal as he didn’t think it would achieve anything as the boss and the manager were against him. The Tribunal asked the Applicant the real reason for his dismissal given that he hadn’t even been employed by [the TV station] at the time of the Gundalai incident. He replied that the main reason was a difference in political belief between himself and his manager; he was sacked after he had been detained. Asked whether he was detained because of the tax problem the Applicant’s evidence was evasive and contradictory before he finally said that he was checked by the Tax Department when his home business happened to have been very profitable and so had to pay a high amount of tax and he was detained because he didn’t pay it.
The applicant then gave further evidence about obtaining a passport, and about his delay in seeking asylum in Australia, the stabbing of his relative by his neighbour, the burglaries, the anonymous calls received by his wife, and his father’s death. He also made a new claim to have once taken a photograph of the Interior Minister receiving a bribe in 2004.
At the end of the hearing, the Tribunal put to the applicant that it had serious doubts about his credibility. The Tribunal said:
Asked after a break if he wished to add anything to the evidence already given, the Applicant said that the tax problem was related to the business he ran from home and not to his dismissal from [the TV station], which was due to his political belief. He added that before he came here he paid all outstanding taxes and the tax issue has nothing to do with coming here; he then said that he paid all the taxes in July 2003 before he was issued with a passport.
The Tribunal then recorded evidence given by his wife, as to telephone calls in March and June 2005 “by an unknown and anonymous caller(s) who told her to tell her husband to stop what he’s doing or she’ll be badly abused”. These calls were not reported to the police.
The applicant’s mother also gave evidence, including:
Asked if she ever had any problems herself the Applicant mother referred to the unexpected death of her husband, a teacher, in March 2005; she thought her son’s politics had something to do with it.
This was not explained further by her.
Following the hearing, the Tribunal sent to the applicant a letter under s.424A(1) of the Migration Act, inviting comments on inconsistencies between the applicant’s evidence and other information given by him to the Department in his visa application. A response was made by his counsel. No point is now taken that there was any failure by the Tribunal under s.424A.
In its statement of reasons, the Tribunal referred to this correspondence, and to some country information concerning Mongolian politics.
Under the heading “Findings and Reasons”, the Tribunal recorded a clear finding about the credibility of the applicant’s key claims:
In this case, the Tribunal accepts that the Applicant is a citizen of Mongolia as claimed and as supported by his Mongolian passport which he brought to the Tribunal hearing. In essence, the Applicant claimed to have suffered various incidents, and to fear arrest, and not being able to get a job, if he returns to Mongolia, because of his political opinion; in particular he claimed to have been arrested and detained, and then sacked, because he recorded the violent arrest of Mr Gundalai, but more generally because of his activities and membership of the Democratic Party. However the Tribunal is not satisfied that the Applicant has a well‑founded fear of persecution within the meaning of the Convention. This is because the Tribunal does not accept that the Applicant is a credible witness. The Tribunal has set out the Applicant’s evidence in considerable detail above because it clearly shows the inconsistent nature of that evidence about key issues. Having considered all the evidence the Tribunal is satisfied that the Applicant’s key claims have been fabricated.
The Tribunal referred to numerous problems in relation to the applicant’s claims to have been persecuted as a result of filming the Gundalai incident. The material before the Tribunal clearly allowed it to form a view that this claim was fabricated. It said:
The Tribunal accepts independent country information, including that submitted by the Applicant’s adviser, that the Gundalai incident occurred on 24 July 2003. Given the Applicant’s highly inconsistent and unsatisfactory evidence the Tribunal is not satisfied that the Applicant was employed by [the TV station] at the time of the Gundalai incident or that he filmed it, either as an employee of [the TV station] or otherwise. The Tribunal also rejects these claims as fabricated because the Tribunal finds the Applicant’s oral evidence about filming this on a day off from his job at [the TV station], but on a live feed to the station, implausible for the reasons put to the Applicant in the hearing. As the Tribunal does not accept that the Applicant was employed by [the TV station] at the time of the Gundalai incident on 24 July 2003 or that he videoed or filmed it, the Tribunal does not accept that the Applicant was sacked from job at [the TV station] as a result of filming the Gundalai incident or that he was arrested and detained for 72 hours for that reason. The Tribunal also rejects these claims for other reasons; for example, the Tribunal does not accept as plausible that the Applicant was sacked for filming the incident when it was also his evidence that the TV station showed the incident, because independent country information is that there were many witnesses to the incident, and photographs of the incident were front page news on non‑State media the next day, thus hardly secret, and because the Tribunal does not accept as plausible, on one version of the Applicant’s evidence, that he was arrested and detained on 25 June 2004 or sacked from his job at [the TV station] in August 2004, more than a year after the Gundalai incident, for reasons associated with that incident.
The Tribunal then addressed the applicant’s claim that he had been arrested and detained for 72 hours. It referred to many aspects of this claim which were unsatisfactory, analysing in detail how the claim had been presented in various ways. It did not discuss the possibility, raised by the applicant’s own evidence, that his detention might have been related to his business or taxation affairs. The Tribunal’s conclusions were:
For the present purpose the Tribunal is prepared to accept that the Applicant was arrested and detained at [the detention centre] for 72 hours as such a claim is consistent with independent country information, for example, that police may arrest people suspected of a crime and hold them for up to 72 hours before a decision is made to prosecute or release them (“Mongolia” US State Department Report for 2004 section 2d), and also that he may have been mistreated during that time, but the Tribunal is not satisfied that the Applicant was arrested and detained, or mistreated during that detention, for reasons associated with the Gundalai incident, or more generally, for reasons set out below, for reason of his actual or imputed political opinion or activities, or for any other Convention reason. This is because of the unsatisfactory nature of his evidence about these matters as set out above. Also, independent country information is that although police sometimes beat detainees, there is nothing to suggest that this occurs for a Convention reason.
The Tribunal then addressed the third key element of the applicant’s claims, being his claimed membership of the Democratic Party. The Tribunal said that it was clear from his answers that “he knew very little about” the party. The Tribunal concluded:
Given his evidence about this issue, the Tribunal is not satisfied that the Applicant was or is a member of a Democratic Party in Mongolia although he may well be a supporter and/or have voted for them at times.
The Tribunal noted that, in any event, independent material indicated that:
… members or supporters of the many democracy parties in Mongolia (a significant part of the voting population) are not persecuted for reason of their political opinion, including after the MPRP regained power in 2000.
The Tribunal then stated a general conclusion rejecting the applicant’s key claims:
Given the Applicant’s unconvincing evidence and the independent country information, the Tribunal is not satisfied that the Applicant was arrested and detained or sacked from his job at [the TV station], for reason of his activities in filming the Gundalai incident, or for being a member [or] supporter of the Democratic Party or more generally for reason of his actual or imputed political opinion in favour of democracy, or for any other Convention reason.
The Tribunal then recorded its findings in relation to the various further incidents which the applicant attributed to persecution by reason of his political opinions. In relation to the burglaries of his house and his father’s death, the Tribunal said:
Although the Tribunal accepts for the present purpose, that his home was burgled three times since 2001 and his father passed away unexpectedly in March 2005, the Tribunal is not satisfied, for the reasons already stated, that these events occurred because the Applicant filmed the Gundalai incident (two of the burglaries pre‑date it), or for reasons arising from the Applicant’s political opinion or activities in support of democracy, as claimed. The Tribunal also rejects these claims because although his father’s unexpected death was a shock, and although the family home was burgled three times in over three years, there is nothing in the evidence before the Tribunal to suggest that these incidents had anything to do with the Applicant’s political opinion or activities.
The Tribunal then explained why it was not satisfied that the stabbing of the applicant’s relative “gives rise to a well‑founded fear of persecution within the meaning of the Convention”, noting that the applicant had continued to remain in the apartment block for almost two years after the incident.
The Tribunal considered the wife’s claim about two threatening phone calls. It said:
The Tribunal is prepared to accept that this occurred but it is not satisfied that they occurred for reason of the filming of the Gundalai incident or more generally, for reason of the Applicant’s actual or imputed political opinion.
It gave reasons for this conclusion, additional to its earlier reasoning in relation to the Gundalai incident.
The Tribunal then addressed the applicant’s claims that “he was subjected to discrimination and abuse at work and was sacked mainly for political reasons, and that he couldn’t get another job for political reasons”. It did not accept these claims, and gave rational reasons for that conclusion.
It also referred to the applicant’s late claim about photographing the Interior Minister. It noted that the applicant did not claim to have published or circulated the photograph, nor to have had any problem as a result of having taken it. It also noted the passage of time.
The Tribunal summarised its conclusions:
In sum, the Tribunal does not accept the Applicant as a credible witness. In particular, the Tribunal does not accept that the Applicant filmed the 23 July 2003 Gundalai incident, that he was arrested and detained for 72 hours and mistreated during that time and then sacked as a result of that filming or more generally because of his support or membership of the Democratic Party or because he is a supporter of democracy. The Tribunal is not satisfied that the Applicant has a well‑founded fear of persecution within the meaning of the Convention.
The applicant’s counsel today relied on an amended application filed on 21 August 2006. This contains a rolled‑up general ground of jurisdictional error:
… the Tribunal identified the wrong issue, failed to take account of relevant material and took into account irrelevant material, made a finding that is unsupported by evidence, reached a conclusion that is Wednesbury unreasonable, failed to properly interpret the law, apply the right test and ask itself the right questions, failed to complete its jurisdictional task by not considering all possible issues, and failed to consider the elements of each claim.
It is also contended that:
The Tribunal’s decision is otherwise contrary to law.
Lengthy particulars are then given, without clear attribution of the particulars to any of the various jurisdictional errors contended. Compounding the Court’s difficulty in understanding his arguments, the applicant’s counsel today did not relate his written and oral submissions to the jurisdictional errors alleged in the amended application, nor to the particulars in the amended application.
I propose to give my short reasons for rejecting the particulars of jurisdictional error asserted in the amended application, and then to attempt to address the more elaborate arguments presented today orally.
The particulars in the amended application are:
Particulars
A.The Tribunal failed to deal with and/or consider sufficiently the elements of each of the claims giving rise to well founded fear for a Convention reason. The various claims include incidents of arrest and physical abuse of the Applicant by the authorities, threats to the Applicant’s wife, serious wound inflicted upon the Applicant’s cousin, three burglaries, sudden and unexplained death to the Applicant’s father, and loss of employment.
B.It is manifestly unreasonable for the Tribunal to conclude in the absence of plausible explanations that the various incidents, separately or together, as described by the Applicant above do not lead to “well founded fear” for a Convention reason, and/or it is manifestly unreasonable for the Tribunal to introduce an explanation without any material before the delegate or Tribunal such as “criminal investigation” for detention and physical abuse of the Applicant.
C.The Tribunal made a finding without supporting evidence such as the finding of a non‑Convention reason (including criminal investigation) causing detention and physical abuse of the Applicant.
D1.The Tribunal erred in relying or relying excessively upon the written submission for extracting evidence when the submission is made primarily for the purposes of presenting legal arguments without the input of the Applicant who cannot speak English and is untrained in reading such documents, and erroneously compared it with the evidence presented orally by the Applicant at the hearing and found lack of credit due to some differences.
D2.The Tribunal failed to consider or consider sufficiently all independent country information presented, a lot of which was given by the Applicant, and to make enquiry of such information, which is central to the application and readily available through research.
E.The Tribunal failed to consider or consider sufficiently the fact that the Applicant’s commencement of membership of the democracy movement predates two of the three burglaries, which took place as a result of the membership, and it incorrectly took into account the reason for the incidents as the filming of Mr Gundalai, which is in fact largely irrelevant in this context.
F.The Tribunal failed to take into consideration or to consider sufficiently all the information relating to the intricacy and complexity of the current political development in the country of origin of the Applicant as evidenced by the fact that there is a significant body of information contrary to the view of the Tribunal on that subject; the Tribunal thus failed to consider all the possible issues and complete the jurisdiction task in respect of “well founded fear” including the objective test.
G.The Tribunal failed to take into consideration the effect of the possibility of emotional and traumatised state of the Applicant upon the giving of his evidence particularly oral evidence when he was overtaken by emotion and wept on several occasions, and instead focused on “inconsistency” in the details of the evidence, including the “inconsistency” in dates when the Applicant did the filming.
H.The Tribunal failed to correctly interpret the law, identify the issues, or ask the correct questions relating to “well founded fear” and failed to correctly consider and apply the “real chance” test in relation to the Applicant’s well founded fear including the consideration of remoteness and lacking in substance.
I do not accept that the Tribunal failed to consider the applicant’s claims to be a refugee, or any element essential to them. As I have indicated above, the Tribunal carefully analysed the factual narrative asserted by the applicant. It identified the key components in his claims, and explained why it did not accept them as true. It also addressed the other incidents which it did accept had occurred, and explained why it did not consider that they supported the applicant’s claim to be a refugee.
I do not consider that there was anything “manifestly unreasonable” in any of the conclusions arrived at by the Tribunal on the material that was before it. As I have indicated above, I consider its findings were all supported by the evidence before it. The Tribunal’s statement of reasons shows, in my opinion, that it made a genuine and rational assessment of all the material presented by the applicant.
The criticism of the Tribunal for referring to factual statements presented to the Tribunal by the applicant’s counsel in his submission and response to the s.424A letter does not, in my opinion, have substance. The Tribunal was required to consider all the material that was put before it by or on behalf of the applicant. It was entitled to assume that factual assertions made on behalf of the applicant were made with his authority and on his instructions.
I am unable to identify any independent country information which was not considered by the Tribunal.
Finally, I consider that the contentions in pars.E., F., G. and H. are arguments disputing the factual assessment of the Tribunal only and do not identify jurisdictional error.
I now turn to the oral submissions of the applicant’s counsel which were presented today, and which addressed a discursive written submission. I do not consider that they have identified any jurisdictional error.
His first submission was that the Tribunal failed to consider “all of the essential elements of the claim raised by the material or evidence”, in accordance with the jurisdictional requirement on the Tribunal which was referred to in Htun v Minister for Immigration& Multicultural Affairs (2001) 194 ALR 244 at [7], and has been more recently considered by the Full Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1.
However, counsel did not identify any particular element in the material which was not addressed by the Tribunal in its reasons. As I understood him, his essential criticism of the Tribunal was that it made no attempt, or only a cursory attempt, to consider the claims made by the applicant. In particular, it failed to consider whether the sequence of the incidents claimed by him, particularly those which the Tribunal assumed had actually occurred, gave support to the applicant’s claim that he had a well‑founded fear of persecution by reason of his political opinions. It was submitted that the Tribunal had failed to consider the claims of the applicant “cumulatively”.
I do not accept that the Tribunal made any of these mistakes, whether they be mistakes of fact or jurisdiction. As I have described the structure of the Tribunal’s reasons above, it properly addressed the central issues presented by the applicant, being his attribution of political persecution arising from his involvement in filming the Gundalai incident, and from being a known supporter and member of the Democratic Party. The Tribunal has rejected these key elements as fabricated. It has also rejected his claim to have been arrested and held in detention as a result of that incident, or for political reasons associated with the incident or with his membership of the Democratic Party.
It is true that the Tribunal did not expressly say that it had taken into account the incidents involving him and the members of his family, when rejecting the applicant’s key claims. However, I would not conclude that it did not do so. It did examine those incidents, and explained why they did not support the applicant’s claims to have suffered persecution by reason of his political opinion. The paragraph I have extracted above, where the Tribunal discussed the burglaries and the death of the applicant’s father, indicates that the Tribunal considered the chronology of the incidents, as well as their particular circumstances, when considering whether they provided support for the applicant’s refugee claims. I am not persuaded that it failed to assess any part of the evidence before it, when making its key findings on the credibility of the applicant’s central claims.
Counsel for the applicant also made other general criticisms of the Tribunal’s reasons. One was that the Tribunal did not show that it had considered the possibility that the applicant might have given inconsistent evidence for innocent reasons, so as to take into account the uncertainties of memory and the difficulties of communicating through an interpreter when claiming refugee status. He cited a well known passage where Kirby J discussed these matters in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [73].
Counsel also submitted that the Tribunal did not take into account that the applicant may have been “traumatised” by events before he came to Australia. However, there was no evidence which was before the Tribunal and which gave such a claim any substance.
I have carefully considered the reasoning of the Tribunal and its description of the hearing, and I am not persuaded that the Tribunal failed to bear in mind the wisdom of Kirby J. I am not persuaded that the Tribunal failed to weigh up each part of the applicant’s evidence, and the circumstances under which it was given, before deciding how much it could accept as true.
I accept generally the submission of counsel for the Minister that the Tribunal’s decision is “reasoned, coherent and comprehensive”.
I reject the submission of counsel for the applicant that the Tribunal engaged in a process of reasoning which is not clear, or which is hard to understand. To the contrary, I think this Tribunal has shown that it attempted meticulously to examine the evidence before it. As I have indicated above, it was faced with manifest difficulties accepting the key components of the applicant’s claims, and it has explained those difficulties very clearly, in my opinion.
Some criticisms were also made by counsel for the applicant that there was particular evidence which was not addressed, and was not taken into account. In particular, he submitted that the Tribunal failed to appreciate the significance of the death of the applicant’s father, and did not take into account his widow’s opinion that “her son’s politics had something to do with it”. The latter piece of evidence was submitted to be “independent evidence” which the Tribunal had a duty to address specifically. The Tribunal was criticised for saying “there is nothing in the evidence before the Tribunal to suggest that these incidents [including the death of the father] had anything to do with the Applicant’s political opinion or activities”, in the face of the evidence from the widow and the unexplained death.
However, in my opinion, the weight which the Tribunal could give to the opinion of the widow, which lacked any explanation for her linking the death with the son’s politics, was minimal, and I would not draw an inference that it was overlooked merely because the Tribunal did not discuss it specifically under the heading “Findings and Reasons”. I would not read the Tribunal’s reference to there being “nothing in the evidence” to suggest that the Tribunal overlooked that the applicant and his mother and wife wished to suggest a political explanation for the incidents. Rather, it was pointing out that the documentary evidence concerning the incidents did not support such a connection.
The Tribunal’s statement that there is “nothing in the evidence” occurred after the Tribunal had explained why it was not satisfied that the applicant had any political membership which might have given rise to persecutory actions. Apart from the applicant and his family’s assertion of political explanations for these incidents, counsel for the applicant did not point to anything in the evidence which supported this claim.
The applicant’s counsel also submitted that the Tribunal could have made further enquiries into the causes of the father’s death, and as to the reasons for the widow’s opinion that it had a political connection. However, this submission is contrary to well‑established authority that the Tribunal has no duty to make such inquiries (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187], and WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]).
Counsel for the applicant submitted that there was no evidence allowing the Tribunal to suggest that the applicant’s difficulties with the tax authorities explained his detention. However, as I have indicated above, I do not read the Tribunal as making such a finding. Its conclusion as to the “unsatisfactory nature of his evidence” about his detention is sufficiently explained by the points expressly made by the Tribunal, which did not rely upon the applicant’s evidence in relation to his tax affairs.
The last point, which I understood counsel for the applicant to make, was that the Tribunal failed to consider the possibility that the applicant’s claims might be true notwithstanding its adverse finding on credibility. He referred to Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, which established the “real chance” test of future persecution, and submitted that the Tribunal had failed to apply this principle.
However, I do not accept that submission. The Tribunal in its usual discussion of the law properly instructed itself as to the understanding of the definition of “refugee” and the need to consider whether a fear of future persecution is “well‑founded”. It is well established that a consideration of those issues is properly commenced by a consideration of the acceptability of the history of past persecution which is presented by a claimant (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575–576, and Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 544–545, [82]‑[84]). In my opinion, the present Tribunal performed that exercise, before arriving at clear findings that “the Applicant’s key claims have been fabricated” and that it was not satisfied that anything in his history showed persecution by reason of political opinions. In those circumstances, in my opinion, the Tribunal was not obliged to discuss in its reasons the possibility that its findings on the credibility of his account might be wrong (see Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 at [11] and following, and the other authority extracted by me in SZDTZ v Minister for Immigration & Anor [2005] FMCA 1392 at [19] and following).
For the above reasons, and after carefully considering all the submissions of counsel for the applicant, I have not been persuaded that the Tribunal’s decision is affected by jurisdictional error. It is therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 14 November 2006
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