SZJBA v Minister for Immigration

[2007] FMCA 976

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJBA v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 976

MIGRATION – Persecution – review of Refugee Review Tribunal decision.

MIGRATION – Visa – protection visa – no error in Tribunal making decision without considering response to s.424A notice which applicant failed to send – no error in Tribunal not alerting applicant that only fax coversheet sent by applicant and not s.424A response – loss of property did not amount to serious harm.

Migration Act 1958, ss.91R, 91X, 424A

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437

Applicant: SZJBA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 687 of 2007

Judgment of: Cameron FM

Hearing dates: 11 May & 13 June 2007

Date of Last Submission: 13 June 2007

Delivered at: Sydney

Delivered on: 29 June 2007

REPRESENTATION

The applicant appeared in person.

Counsel for the Respondents: Mr. J. Mitchell

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 687 of 2007

SZJBA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By amended application dated 7 May 2007, the applicant seeks review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 9 February 2007 and which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“Minister”) dated 6 March 2006 refusing the applicant’s application for a protection visa.

2. The Tribunal decision the subject of these proceedings is the second such decision relating to the applicant.  There was a previous Tribunal decision signed on 15 June 2006 which was quashed by order of the this Court dated 7 September 2006 (Court Book (“CB”) page 139).

3. Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicant’s name.

Background facts

1. The Tribunal described the applicant as follows:

   … the applicant, a national of Fiji, was born in April 1956.  He is Hindu and of Indo-Fijian ethnicity.  He speaks, reads and writes English, and speaks Hindi, Fijian and Gujarati.  He has completed 18 years of education and holds a diploma in electronics.  He describes his profession before coming to Australia as “businessmen (electronics)”.  From 1987 until January 1999 he owned his own electronics shop and lived at the same address in Suva from 1994 until his departure from Fiji.  (CB 313).

2. The applicant claims to fear persecution in Fiji because of his ethnicity.

3. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-15 of the Tribunal’s decision (CB 313-324). Relevantly, they are in summary:

   a)the applicant was a member of the Fiji Labour Party (“FLP”).  In 1987 a coup took place.  The applicant claims that he was not part of the coup, but was involved;

   b)the applicant states that Fiji has been characterised by a lack of stability since 1987 and that there were strong racist sentiments against Indo-Fijians as indigenous Fijians sought to “pursue racial supremacy”;

   c)the applicant claims that in 1987 his wife was raped by four soldiers in front of their two children;

   d)the applicant started his own radio transmission which transmitted to a small area.  He also handed out leaflets containing photographs and commentary about what was happening in his area;

   e)in 1992 the applicant’s house was destroyed by the army.  More than 30 soldiers attacked his house, took everything and destroyed what they could not take with them.  They had ransacked and petrol bombed his house;

   f)the applicant and his four staff members were taken hostage by the army.  He was tortured when they pressed burning pieces of wood on his back.  He later escaped whilst his captors were sleeping and was shot at by the army.  The bullet grazed his lower lip;

   g)after the applicant escaped, his family members (his brother and sister) were tortured because the army was looking for him; and

   h)after escaping captivity, it was more than a month before the applicant managed to return home.  The applicant claims that after he came to Australia, he found out that his house had been taken over by native Fijians.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”).  The Tribunal’s decision was based on the following findings and reasons which are paraphrased in the first respondent’s outline of submissions as follows:

   3.2 The Tribunal found that the Applicant was not a credible or truthful witness and that he showed a propensity to fabricate claims and exaggerate and tailor his evidence.  This credibility finding was based on a number of inconsistencies between his written and oral claims.  Specifically:

   (a) His oral testimony regarding his residency in Fiji was inconsistent with his application for a protection visa.

   (b) His oral testimony regarding his employment history in Fiji was inconsistent with his application for a protection visa.

   (c) His oral testimony before the Tribunal as first constituted raised a claim that his wife had been raped during the 1987 coup yet this had not previously been raised in the Applicant’s application for a protection visa.  Further, his testimony regarding the fate of his wife and two children after the coup was confusing, unclear and his testimony before the Tribunal as first constituted was inconsistent with that given at the subsequent Tribunal hearing.

   (d) A number of claims were made at the Tribunal hearing as constituted a second time had not previously been made.  In particular his claim that his house was looted and destroyed in 1992 was raised for the first time before the Tribunal as constituted in 2007.

   (e) His description of his claims to past persecution in 1987 in an affidavit filed in the Federal Magistrates Court were inconsistent with those made previously in writing and orally before the Tribunal.

   3.3 Consequently, the Tribunal did not accept most of the Applicant’s claims: CB 328.

   3.4 Notwithstanding the Tribunal’s concerns with the Applicant’s credibility, it accepted that his business was looted by indigenous Fijians in the coup of 1987 and that in 2000 his property was adversely possessed by native Fijians. The Tribunal found that in the period between 1987 and 2000 the applicant had continued to live in Fiji unharmed and that the harm suffered in 2000 did not constitute serious Convention-related harm because the Applicant did not claim that he was financially dependent on the property or that the loss of the property had caused him economic hardship.

   3.5 Based on country information, the Tribunal was not satisfied that the Applicant’s fears of prospective harm on return to Fiji were well-founded.  Specifically, the Tribunal found that the chance of the applicant facing harm by reason of his ethnicity was remote, it was not satisfied that the chance of facing harm for reason of his religion was real, there was no real chance that the Applicant would face harm by reason of his support for the FLP and it was not satisfied that the Applicant would suffer serious harm as a consequence of the general political conditions in Fiji.

2. In essence the Tribunal found:

   The applicant did not impress the Tribunal as a credible and truthful witness.  In reaching this view the Tribunal has had regard to the significant inconsistencies between his written claims and his oral evidence provided at the first and second Tribunal hearings, as well as other reasons detailed below. …

   
   

   The numerous inconsistencies, shifts and changes in the applicant’s evidence throughout the process cast considerable doubt on his reliability as a witness and the credibility of his claims. (CB 325, 327)

Proceedings in this Court

1. The grounds of the application can be summarised as follows:

   a)the Tribunal failed to consider the applicant’s response to the Tribunal’s s.424A(1) notice; and

   b)the Tribunal erred in failing to consider the applicant’s claim that because native Fijians had destroyed and/or taken away his house and land in Fiji he no longer had a place to live in Fiji.

2. Dealing with each of these grounds in turn:

The Tribunal failed to consider the applicant’s response to the Tribunal’s s.424A(1) notice

1. The Tribunal wrote to the applicant, care of his adviser, by its letter of 18 January 2007 (CB 228-230) setting out in six numbered paragraphs matters which it advised would, subject to any comments he made, be the reason or part of the reason for deciding that he was not entitled to a protection visa.  The applicant’s agent responded by a facsimile dated 25 January 2007, which is expressed to be a coversheet and five pages, in which the following appeared:

   I am forwarding [the applicant’s] response to the “Invitation to comment on information” letter from the Tribunal dated January 18, 2007.

   I take this opportunity to request extra time to Tuesday January 30, 2007 for [the applicant] to provide further information.

   Please do not hesitate to contact me on [mobile telephone number] should you require further information. (CB 233).

   The machine-generated notation at the top of that sheet states:

   25/01/2007 14:46 612922465599 PAGE 01/01

   At the bottom of the page appears another machine generated notation which states:

   PAGE 1/1 RCVD AT 25/01/2007 4:10:41PM [AUS Eastern Daylight Time] SVR: SYDFAX/4 DNIS: 5599 CSID: 61292246599 DURATION (mm:ss):00-32.

2. The Tribunal responded by its letter of 29 January 2007, in which it advised that it did not grant an extension of time

   … for providing the comments which were due by 25 January 2007.  However, the Tribunal will not take any steps to finalise your case until 31 January 2007 and will consider any material which is submitted on or before that date. (CB 234).

   No such comments were received.

3. The applicant’s case is that the fax of 25 January 2007 was made up of the coversheet and a five page response to the s.424A(1) notice and the first respondent’s case is that the Tribunal received the coversheet but nothing more.

4. The applicant’s adviser swore an affidavit in these proceedings on

   
   

   7 May 2007 and, amongst other things she said:

   9. On January 25, 2007 I requested the Office Manager at Playfair for the response (5 pages) to be faxed to the Refugee Review Tribunal with the specified Fax Cover that I had prepared.

   10.It is standard office practice at Playfair to always contact the RRT via phone to confirm receipt of the Fax Message.

   11.In the afternoon of January 25, 2007 I received a call from the RRT on my mobile phone.

   12. The person stated that she was calling me regarding [the applicant].

   13. I thanked the person for contacting me and stated that I wanted confirmation that the Tribunal had received the Fax sent by Playfair that afternoon regarding [the applicant].

   14. The Tribunal officer said that she was going to check and after a minute or so, she said: “Yes, here it is, 5 pages.” I said thank you and we finished the conversation.

   15. On Monday, January 29, I was contacted by phone by a Tribunal officer. The officer stated that a Fax was going to be forwarded to my office stating that the Member had not agreed to an extension of time to provide further information as requested in my Fax Message but the Member would not finalize [the applicant’s] case until January 31, 2007 so I could still forward information until such time.

   16. I explained to the Tribunal officer that that was all right because we (meaning [the applicant] and I) had already submitted the comments we wished the Member to consider in the Response faxed on January 25, 2007 and the extra time requested in the Fax to provide further information was for the purposes of providing further country information, should anything developed [sic] in Fiji during the extra week that had been requested.

   17. That day the RRT Fax that was the subject of the conversation with the Tribunal officer (at 10 and 11) [sic: 15 and 16] was received at Playfair at 11:26am.

   18. I did not provide further information to the Tribunal because there was no further country information to be forwarded.

   Since the reason for originally asking for time … was to have extra time to forward up to date country information, should it be necessary, and no major developments had occurred that week, there was no need to provide further information. 

5. In her evidence to the Court the applicant’s adviser said that with the cover page sent on 25 January 2007 she also sent the five pages which are referred to in the headings of the coversheet, or at least she had directed a staff member of her office to send them.  When it was put to the adviser that only one page had been faxed to the Tribunal and not the six she asserted, the adviser said that on 25 January 2007 she had been rung on her mobile by an official of the Tribunal in response to the facsimile and it was stated to her that the Tribunal had received the five pages. The adviser said that she was out of her office at the time she received the call and she did not have a note of the conversation. The adviser further stated that although she may at any one time have conduct of several matters in various stages of preparation, she does not take file notes of informal conversations.

6. The adviser also said that normally a yellow facsimile transmission report would be attached to a document which had been faxed but in this case one had not been.

7. The adviser told the Court that the usual practice in her office is that once a facsimile is sent to the Tribunal her office will ring the Tribunal to confirm that it has been received and that if the officer handling the particular matter at the Tribunal is not the one who takes the call then sometimes someone else will take a message and look around for the facsimile and call back. The adviser said that the call she received was a call to confirm receipt of the facsimile. She said that she remembered the conversation because it occurred on the day when the response to the s.424A(1) notice was due, it was the day before Australia Day and she was leaving the office early that day. Additionally, the s.424A(1) notice had been sent by one Tribunal officer while the telephone call had come from a different officer. For these reasons, the adviser said that she remembered the conversation clearly.

8. The adviser was shown a copy of the electronic casenotes kept by the Tribunal in relation to the applicant’s application, where no reference to the alleged 25 January 2007 conversation appears but, although accepting that no record of the conversation appeared in those notes, she denied the proposition that the conversation had not taken place.  The adviser said that the conversation did take place but a note had not been made of it by the Tribunal. 

9. In relation to the conversation of 29 January 2007 deposed to in her affidavit, the adviser said in her oral evidence that the Tribunal telephones before sending facsimiles. The adviser said that even though there was nothing in the casenote of that conversation which records that the adviser said that she had already submitted to the Tribunal what she wanted to submit, she confirmed in her oral evidence that the conversation of 29 January 2007 did take place in the terms deposed to in her affidavit.

10. In his affidavit sworn 10 May 2007, the District Registrar of the Tribunal, Mr Willoughby-Thomas, deposed that the notation at the foot of the adviser’s facsimile to the Tribunal dated 25 January 2007

    … is printing produced by the MRT-RRT facsimile system and shows that one page was received by the RRT on 25 January 2007 from [the facsimile number of the applicant’s agent].

11. Mr Willoughby-Thomas also deposed to instructions to all officers of the Tribunal to take casenotes of any discussions with review applicants, their migration agents, legal representatives, authorized recipients or other persons on behalf of an applicant about a particular case.  In his evidence Mr Willoughby-Thomas said that all telephone communications would be recorded in a casenote and if a facsimile was received it would be placed on the paper file. 

12. Annexed to Mr Willoughby-Thomas’s affidavit sworn 18 May 2007 is a listing of all the facsimiles stored in the Tribunal’s “Sydney Fax mailbox” for the period 25 January 2007 to 12 February 2007, the latter date being the date when the Tribunal’s decision was handed down.  Also annexed to that affidavit is an email from the Tribunal’s Director of IT & Communications dated 18 May 2007, who describes the facsimile listing in the following terms:

    Please find attached the Outlook logs for the Sydney Fax Mailbox for 25 January to 12 February 2007. Please note that I am relying on the logs from the Outlook mailbox for these dates as the server logs are not available for that time due to a problem with the backups. The Outlook mailbox keeps a copy of emails received in its subfolders and it is from here that this log is derived. The contents of the Outlook mailbox is accessible by staff and it is possible it could be modified.

13. In relation to the integrity of the fax record annexed to his affidavit sworn 18 May 2007 Mr Willoughby-Thomas said that although a record of a facsimile having been received could be deleted in its entirety, a record could not be amended. That is to say the Tribunal’s logs could be modified only by the deletion of an entire entry, not by alterations to the detail of an individual entry.

14. I am satisfied that the Tribunal’s records disclose that on 25 January 2007 it received a facsimile transmission from the applicant’s agent of one page in length. That is also confirmed by the machine-made notations at the top and the bottom of the document.  The evidence provided by Mr Willoughby-Thomas in his second affidavit satisfies me that the Tribunal’s records do not disclose that a further facsimile was sent by the applicant’s agent to the Tribunal that day and that, at no time prior to the handing down of its decision, did the Tribunal receive the further five pages which the applicant asserts had been sent to it.

    
    

    I also note that it is not the applicant’s case that the facsimile was sent more than once.

15. I do not accept that the evidence of the applicant’s adviser concerning the telephone conversations she says she had with officers of the Tribunal is accurate. It is not corroborated by contemporary file notes or by a facsimile transmission report from her office. Moreover, her evidence is contradicted by the Tribunal’s casenotes, where there is no record of statements relevant and important to these proceedings which the adviser says were made on 25 and 29 January 2007. Further, the Tribunal’s letter of 29 January 2007 (CB 234) suggests that the Tribunal had not received any substantive response to its s.424A(1) notice.

16. I find that on 25 January 2007 the applicant’s adviser faxed one page only to the Tribunal, that being the facsimile cover page reproduced at CB 233.

17. Although the headings on the 25 January 2007 facsimile might have put an alert reader at the Tribunal on notice that not all pages which had been intended to be sent were actually sent, or at least had not been received, the Tribunal is not obliged to make inquiries or to prompt and stimulate an elaboration which the applicant choses not to embark upon: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21 – 22 [42] and [43]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at 451 [58]. No error is demonstrated by the Tribunal not correcting the applicant’s adviser’s error.

1. Consequently, no error is demonstrated because the Tribunal proceeded to make its decision without the information which the applicant failed to transmit to it.  Nor is there error in the Tribunal not pressing the applicant for the information which he did not supply.

The Tribunal erred in failing to consider the applicant’s claim that because native Fijians had destroyed and/or taken away his house and land in Fiji he no longer had a place to live in Fiji

1. At the hearing on 17 January 2007 the applicant told the Tribunal that he owned a house and land at Lambassa but did not live there because his business was in Suva.  He said that the house and land had been taken over by native Fijians and he found this out after he came to Australia. (CB 319).  At the earlier Tribunal hearing on 26 May 2006 the applicant said that he owned a house at Lambassa but nobody had been living there since he arrived in Australia. (CB 316).  At a later point in that hearing he said that his house had been destroyed and the land taken over by native Fijians with the result he did not have a place to stay. (CB 318).

2. The finding relevant to this claimed ground of review is found at

   
   

   CB 328 where the Tribunal says:

   The applicant departed Fiji in 1999 prior to Fiji’s third coup in 2000 which brought about severe and violent repercussions on Indo-Fijians.  The Tribunal is prepared to accept that during this period or in its aftermath a piece of land and a house the applicant owned were adversely possessed by native Fijians.  While the Tribunal acknowledges that this is a source of distress for the applicant; the Tribunal is not satisfied that the loss of land and the house amounts to serious harm.  The applicant did not claim to have been financially dependent on this piece of land or that the loss of the property has caused him significant economic hardship. 

3. Clearly, the Tribunal did consider the issue of the applicant’s property being taken from him but found that this did not amount to serious harm, as required by s.91R of the Act. Further, the Tribunal considered the consequences to the applicant of the loss of this property and recorded that the applicant had not claimed that any particular hardship flowed from this dispossession.

4. The applicant submits in his amended application that the passage from the Tribunal’s decision quoted above at [30] indicates that the Tribunal failed to consider that the applicant no longer had a place to live.  However, what the Tribunal actually found was that while he was in Fiji the applicant operated his business in Suva and was able to support a wife and child.  Impliedly, the Tribunal was saying that the loss of the property at Lambassa would have no relevant effect on the applicant’s life in Fiji, notwithstanding that it was a distressing event.  Because of this, the consequence of the loss of the property did not amount to serious harm and thus did not support the applicant’s claim to a protection visa. 

5. Jurisdictional error has not been made out in respect of this asserted ground of review.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently the application will be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Cameron FM.

Associate:

Date:  29 June 2007