SZJMU v Minister for Immigration
[2007] FMCA 706
•24 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJMU v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 706 |
| MIGRATION – Credibility – adverse finding – court must not interfere unless there is no basis on which a reasonable person could reach that finding – not set adverse finding aside even if the reviewing body thinks that the probabilities of the case are against, or even strongly against, the finding. |
| Migration Act 1958, ss.312B, 424A, 474 |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 W148/00A v Minister for Immigration & Multicultural Affairs 185 ALR 202 Devries v Australian National Railways Commission (1993) 177 CLR 472 Abalos v Australian Postal Commission (1990) 171 CLR 167 Minister for Immigration and Ethnic Affairs v Wu Shian Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v SGCB [2004] HCA 32 Devries v Australian National Railways Commission (1993) 177 CLR 472 |
| Applicant: | SZJMU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2941 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 15 March 2007 |
| Date of Last Submission: | 15 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 24 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Tony Silva |
| Counsel for the First Respondent: | Mr P. Cleary |
| Solicitor for the First Respondent: | Ms. G. Broderick of Clayton Utz |
ORDERS
The application and amended application are dismissed.
The name of the first respondent is amended to the Minister for Immigration and Citizenship.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2941 of 2006
| SZJMU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 12 October 2006 and amended on
28 December 2006 for orders that the respondents show cause why orders should not be made for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 7 September 2006. That decision affirmed the decision of a delegate of the respondent Minister made on 2 May 2006 to refuse to grant a protection visa to the applicant.
The applicant, a citizen of India, applied for a Protection (Class XA) visa on 2 March 2006:This was refused on 2 May 2006. The applicant then sought review of that decision by the Tribunal. The applicant’s claims to protection are set out in his application (reproduced at Court Book “CB” 1-26) and attached supporting documents (CB 27-41) and in the applicant’s application for review to the Tribunal (CB 52-55). The applicant made further claims for protection in statutory declarations declared on 20 July 2006 (CB 66 and 67) and 28 August 2006 (CB 91 and 92).
By letter dated 30 June 2006, the Tribunal invited the applicant to a hearing to give oral evidence in support of his claim and invited him to provide any new documents or written arguments for the Tribunal to consider (CB 59-60). The applicant responded with an Appointment of Authorised Recipient form, a Registered Migration Agent Notice under s.312B of the Migration Act, and a statutory declaration declared on 20 July 2006 (CB 61-67) which set out further claims for protection.
On 15 August 2006, the applicant requested a delay by the Tribunal on the grounds that
I have threat to my life because of political opinion and political involvement…I am trying to get documents from India to substantiate my case. In order for me to present my case properly I need these documents. (CB 68)
The Tribunal refused the request for the adjournment on 15 August 2006 (CB 70).
On 16 August 2006, the applicant, attended the Tribunal hearing with the assistance of his migration agent (CB 84-85). On 21 August 2006, the Tribunal invited the applicant to comment on the claims made in the applicant’s statutory declaration dated 20 July 2006 and during the course of the hearing, which differed from the claims made in the application for a protection visa. The Tribunal informed the applicant that the matters might raise doubts as to the applicant’s credibility and the veracity of his claims, as the applicant could now be attempting to bring his claims within the Convention definition (CB 88-89). The applicant was invited to comment on the information and responded with a further statutory declaration declared on 28 August 2006 (CB 90-92).
The Tribunal had regard to that statutory declaration (CB 112.6) and on 7 September 2006 the Tribunal affirmed the decision of the delegate not to grant a protection visa. In its “Findings and Reasons”, the Tribunal:
a)Found that the applicant’s claims made in the statutory declaration dated 20 July 2006 and in the course of the hearing, about:
i)Two groups in his factory in India, one supporting the DMK party and one supporting the MDMK party (CB 113.3-113.4); and
ii)His closeness to the MDMK leadership due to his being a relative of the leader, Mr. Gopalasamy (CB 113.3-113.4) and
iii)His being a strong member and supporter of the MDMK since its inception in 1996, and being appointed by the MDMK as assistant youth organiser for his district (CB 113.4-113.5); and
iv)His claim that his distant uncle, Mr Gnanaskaran, a congress leader, spoke to the deceased’s father and both insulted each other referring to their different castes (CB 113.7-113.8);
were new claims not made in the application for a protection visa and the making of such substantial new claims at this stage raised doubts about their veracity and the applicant’s credibility generally (CB 113.9).
Furthermore, the Tribunal found that the applicant’s specific identification of Mr Sathiaseelan at the review stage also raised doubts about the veracity of his claims and the applicant’s credibility generally (CB 113.5-113.9).
The Tribunal carefully considered the applicant’s explanations for the new claims which the Tribunal found unpersuasive and unconvincing (CB 114.2-114.3).
b)The Tribunal found the applicant’s evidence in relation to when his uncle was stabbed was internally-inconsistent and confused, raising further doubts about his claims (CB 114.3-114.6).
c)
The Tribunal found the applicant’s explanation that
Mr Sathiaseelan was not personally involved but had hired people to do his work for him, was unconvincing. (CB 114.6-114.7).
d)In light of the above and the consideration of the evidence as a whole, the Tribunal was satisfied that the applicant fabricated a number of claims in order to bring his claims within a Convention ground(s), which reflected poorly on his credibility (CB 114.8-114.10).
The Court finds that the Tribunal was entitled to reject those parts of the applicant’s evidence with which it found fault.
e)The Tribunal did not accept the applicant had ever been a member and/or supporter of the MDMK, or that he was ever involved in any activities of the MDMK, or that he is related to Mr. Y Gopalasamy, or that he was related to Mr. Gnanaskaran who was stabbed to protect the applicant, or that he was ever appointed as assistant youth organiser, or that he was ever a youth worker in the MDMK, or that he was the secretary of the Youth Front, or that in his factory there were two groups, one supporting the DMK and another supporting the MDMK, or that people gathered against him at the factory and hindered his work, or that the worker was the main person supporting the DMK group at the factory, or that Mr. Sathiaseelan had hired a killer, or that there was any enmity between the applicant and a particular named person, or that there were any plans to kill the applicant which led him to run away many times. (CB 114.10-115.2)
The Tribunal did not reject all of the applicant’s evidence and found that in some aspects his evidence was plausible (CB 115.2). The Tribunal therefore did not “reject the claims wholesale” as asserted by the applicant. It exercised care in rejecting the evidence it did.
f)The Tribunal accepted that the applicant opened his own business and had to borrow money to do so. (CB 115.2)
g)The Tribunal accepted as plausible the claim that one of the applicant’s employees died following an accident at the factory and that the employee had a drinking problem; but did not accept that the person named was the employee’s father or that he had any connections with the DMK (CB 115.2-115.3).
h)The Tribunal found the generality of the applicant’s answers about his persecution by the employee’s family, provide further support for the Tribunal’s finding that the applicant was not ‘persecuted’ by the family, or that they considered him a political enemy. Furthermore, in consideration of the evidence as a whole and given the credibility concerns, the Tribunal did not accept that the family took steps to persecute him, that they hired a professional killer, or that “many leaders put case against me”, or that the father ever threatened the applicant, or that he complained to the police but they took no action, or that the father of the deceased set fire to the factory, or that he had no alternative but to close down his business, or that the father’s gang went to Thailand searching for the applicant, or that he had to hide in Thailand, or that the father and the applicant insulted each other referring to their different castes, or that there is a caste issue involved, or that the applicant would be killed if he returned to India (CB 115.4-115.8).
i)The Tribunal found the applicant’s explanations as to why he did not seek refuge in Thailand, Singapore, or Malaysia unconvincing. Further, it found these matters raised further doubts about the veracity of the applicant’s claims (CB 115.8-115.9).
In consideration of the evidence as a whole, the Tribunal was not satisfied the applicant suffered Convention-related serious harm at the hands of the deceased’s family, nor was it satisfied there was a real chance of such harm occurring in the reasonably foreseeable future. The Tribunal therefore affirmed the decision of the delegate not to grant a Protection (Class XA) visa (CB 115.10-116.5).
The Tribunal noted (CB 114.5) that the applicant stated that he had been suffering from depression and anxiety, but that there was no independent clinical evidence before the Tribunal to support the applicant’s contention that he suffers from any condition which the Tribunal needs to take into consideration in assessing his claims. The Tribunal appreciated that a hearing can be stressful, but observed that “the applicant did not appear to be stressed as suggested” (CB 114.6). The Tribunal was therefore alert to the fact that the applicant may be under pressure when giving evidence. Furthermore, as found above, the Tribunal did not reject all of the evidence of the applicant. The Tribunal was not…obliged to embark upon an open-ended investigation of the respondents’ psychological condition to see whether, in any way, it might have affected his ability to put his case to best advantage: Minister for Immigration and Multicultural Affairs v SGCB [2004] HCA 32, Gleeson CJ, Gummow, Kirby, Hayne, and Callinan JJ, per Gleeson CJ at [19].
Findings adverse to credibility
The applicant says that the main reason (although not the only reason) that the Tribunal made adverse credibility findings about the applicant was the delay in making his new claims (which the Tribunal found to be inconsistent with his earlier claims). It was contended that the Tribunal had to proceed with great caution in making adverse credibility findings on that basis, and should have instructed itself in terms of the cautious approach set out in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191] as follows:
…the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.
The Court finds that the Tribunal was proceeding with caution as it was alert to the fact that the applicant may have been anxious. The Court does not accept that the awareness that the applicant may have been anxious would necessarily have been confined to considering how the applicant gave evidence on that day; that consideration may have been applied to how the Tribunal looked at the inconsistencies between the claims made recently and those made 20 days after the applicant arrived in Australia (and not made under pressure at the airport). Being alert to the problems faced by the applicant does not mean that the Tribunal should accept evidence where it finds fault in it.
The first respondent contends that it was open to the Tribunal to make the adverse credibility finding it did, and that “where there is a finding against the credibility of a party there would have to be some very compelling independent evidence to refute that credibility finding.” The decision in W148/00A v Minister for Immigration and Multicultural Affairs was cited as authority for the proposition; the citation given was 185 ALR 202 at 64-67. The correct citation is (2001) 185 ALR 703, paras.64-67. The Court quotes and respectfully adopts the following paragraphs in full:
The tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 ; 112 ALR 641 at 646 per Brennan, Gaudron and McHugh JJ:
If the trial judge's finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge ``has failed to use or has palpably misused his advantage'’ or has acted on evidence which was ``inconsistent with facts incontrovertibly established by the evidence'’ or which was ``glaringly improbable'’.
See also Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 ; 96 ALR 354. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.
It is important to identify, in this case, the precise question for determination by the minister and the tribunal. The relevant question is whether the minister and the tribunal could be ``satisfied'’ that the case for refugee status has been made out: see ss 65 and 415 of the Act. The High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 ; 146 ALR 481 at CLR 275–7 per Brennan CJ, Toohey, McHugh and Gummow JJ, considered this requirement of satisfaction and observed that the decision under review is of a subjective nature and is not the same as a review of an entirely objective determination of refugee status. This distinction underlies the need for care when viewing the decision of the tribunal, especially in relation to the question of credibility, because the review is as to the satisfaction of the minister or his delegate and not as to the determination of the minister or the delegate.
The reasoning of the tribunal indicates that the rejection of the appellant's evidence as to his political opinion and activity was based on a perceived inconsistency between his evidence and what the tribunal inferred was likely to have occurred and the difficulty the tribunal had accepting the appellant's version of his journey from Iran. The impression created by the appellant was that he ``appeared'’ to be genuine at the hearing. However, the summary of the reasoning contained in the two paragraphs of the tribunal decision quoted above indicates that the decision-maker considered that the alleged circumstances of his escape, including his ability to leave the hospital and the taping of the satellite broadcasts, were so far out of accord with what was likely to occur and the factual circumstances that they could not be accepted. This conclusion affected the appellant's credibility to such an extent that it was seen to justify rejection of his case. The determination as to credibility engaged in by the tribunal essentially involved an evaluation and conclusion as to whether one group of considerations outweighed another group. This is a question of fact and degree. The tribunal did not simply dismiss the appellant's contentions out of hand, but considered, and in one instance accepted, parts of the appellant's evidence. This was in relation to his explanation of the discrepancies between his claims at the interview and his evidence at the hearing.
There is one aspect of the approach taken by the decision-maker in the present case which gives us some cause for concern. It is this. Where the question of credibility is determinative of a tribunal decision, to simply assert that the tribunal considers the applicant's account to be ``implausible'’ or ``highly unusual'’ does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant.
In this case, as in W148/00A “the Tribunal did not simply dismiss the appellant’s contentions out of hand, but considered, and in one instance accepted, parts of the appellant's evidence.”
The Tribunal in the present case did not simply assert that it found the applicant’s account to be implausible. The Tribunal considered the applicant’s explanations for the making of the new claims at the review stage (CB 113.10), but found them to be neither persuasive nor convincing (CB 114.1). The Tribunal carefully considered the applicant’s explanations (CB 114.2) but found them unpersuasive and unconvincing. The Tribunal considered the applicant’s evidence about the MDMK but was not satisfied with it. The Tribunal concluded that the stabbing of the applicant’s distant uncle was not the result of the worker’s death in 2005 as alleged by the applicant (CB 114.5).The Tribunal noted that when questioned the applicant gave a confident answer that the stabbing occurred in 2004.
The Tribunal did make a finding that it was “implausible that if (the person), who is a powerful figure had hired a killer to harm the applicant, no harm had come to the applicant” (CB 114.7). The Court finds that many of the assertions by the applicant rejected by the Tribunal at Court Book 114.9 were supported by an examination of the evidence, as follows:
· “the Tribunal does not accept that the applicant has ever been a member and/or supporter of the MDMK, or that he was ever involved in the activities of the MDMK” (CB 114 para.1);
· “or that he is related to Mr Y G” (CB 113.3, 114.1);
· “or that he is related to Mr G who was stabbed to protect the applicant” (CB 114.4);
· “or that he was ever appointed as assistance youth organiser” (of the MDMK) (CB 114.3);
· “or that he was ever a youth worker in the MDMK” (CB 114.3).
Having satisfied itself that it should reject much of the vital evidence given by the applicant, it was open to the Tribunal to find that a number of the claims were fabricated, which reflected poorly on the applicant’s credibility. The Tribunal was then not convinced by other evidence given by the applicant, for instance:
· As “Mr S was not mentioned in the application for a protection visa, the Tribunal is not satisfied that Mr Sn was the employee’s father” (CB 115.3);
· “The Tribunal is of the opinion that the generality and vagueness of the applicant’s answers provide further support for the Tribunal’s finding that the applicant was not persecuted by the family” (CB 115.4);
· Having conceded “the evidence the Tribunal was satisfied that those matters raise further doubts about the veracity of the applicant’s claims.”
Findings of credibility are for the Tribunal and the Court must not interfere unless it is apparent that there is no basis on which a reasonable person could reach the finding on credibility, for instance where it is clear that the Tribunal acted on evidence which was inconsistent with facts incontrovertibly established by the evidence, or which was glaringly improbable: Devries v Australian National Railways Commission (1993) 177 CLR 472 at 49.
Considered properly, a significant reason for the adverse finding of credibility was the delay in making the new claims. However, the inconsistencies found between the first and the new claims was also a major factor in the reasoning of the Tribunal; and the Tribunal proceeded in a fair way by raising the concerns with the applicant in the s.424A letter of 21 August 2006 (CB 88). The applicant replied with a statutory declaration dated 28 August 2007 (CB 91), which the Tribunal took into consideration (CB 112.6). As conceded by the applicant, there were other factors which led to the adverse credibility findings.
Having regard to all the reasons why the Tribunal made findings adverse to the credibility of the applicant, and to the high burden carried by someone seeking to overturn a finding as to credibility by the Tribunal (which considered all the material, and gave the applicant a chance to explain the problems it saw with the evidence of the applicant, and heard the applicant before it, and observed his demeanour being aware that he may have been anxious, and after that process decided that it did not accept some of the applicant’s claims) the Court is not prepared to reject the adverse credibility findings made by the Tribunal and holds that the findings were properly open to the Tribunal on the information before it.
Failure to record that it instructed itself according to the words in Abebe (ante) does not mean that the finding on credibility should be set aside. The Tribunal was alert to the fact that the applicant may have been under pressure when giving evidence. The Tribunal appreciated that a hearing can be stressful but observed that the applicant did not appear to be stressed as suggested (CB 114.6). The applicant told the Tribunal that he had been suffering from depression and anxiety but there was no clinical evidence before the Tribunal to support his claims (CB 114.5).
The Court is satisfied that the Tribunal proceeded with caution, and that it acted in a procedurally fair way. It was aware of the pressures on a refugee making claims before it. It complied with s.424A; it considered the response by the applicant and concluded that it did not accept much of his evidence.
It is clear that the Tribunal gave careful consideration to the applicant’s evidence before concluding that a number of claims were fabricated which reflected poorly on the applicant’s credibility. Having considered the evidence and material before it, and having observed the applicant giving evidence before it, it made a finding of fact that the applicant was not a credible witness. That finding would not be set aside “simply because it (the reviewing body) thinks that the probabilities of the case are against, or even strongly against, the finding.”: W148/00A (ante) para.64. In this case the Court does not find that the probabilities of the case are against the finding. There is nothing to show that the Tribunal “has failed to use or has palpably misused [its] advantage”: Devries v Australian National Railways Commission (1993) 177 CLR 472 as referred to in W148/00A at para.64.
“Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response.”
Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 as referred to in W148/00A (ante) at para.64.
The Court finds nothing to justify upsetting the adverse credibility findings of the Tribunal; they were findings of fact reasonably open to the Tribunal.
As stated, the amended application to the Court is for an order to show cause. It set out grounds and particulars as follows:
1) The Tribunal made jurisdictional error in that in rejecting the applicant’s claims on the basis of inconsistencies with information provided to the Delegate, or on the basis of delay in raising such claims, the Tribunal failed to direct itself – as it was obliged to – as to the caution required to be exercised before rejecting an applicant’s claims for such reasons.
2) The Tribunal made jurisdictional error as it made a credibility finding against the applicant based on irrational and illogical reasoning.
3) The Tribunal made jurisdictional error as it rejected the applicant’s claim simply on the basis that the claims were belated.
4) The Tribunal made jurisdictional error as it made a credibility finding against the Applicant unreasonably without proper evidentiary basis and based on speculation.
5) The Tribunal made jurisdictional error as it made a credibility finding against the Applicant unreasonably without proper evidentiary basis.
6) The Tribunal made jurisdictional error as it rejected a large part of the applicant’s case because it was not satisfied with some aspects of his case.
7) The Tribunal made jurisdictional error as it recklessly misconstrued Applicant’s evidence and questioned applicant’s credibility.
The amended application is accompanied by “An Outline of Final Submissions of the Applicant” filed on 26 February 2007, a “List of Authorities of the Applicant” and affidavits of Sylvia Nicholas Silva filed 12 October 2006 and 3 January 2007.
The applicant appeared before the Court advised by his migration agent when this matter was heard on 12 March 2007.
This being an application to show cause, it is for the applicant to show the Court that his application raises an arguable cause for the relief claimed: rule 44.12(1).
Ground 1 seeks to review findings of fact which are not open to review. Inconsistencies and late raising of matters are factors which the Tribunal was entitled to take into account. The Court finds that no error of law or fact was involved.
Ground 2: The Court finds that the findings of credibility were open to the Court and were not irrational, illogical or improbable.
Ground 3: The Tribunal was entitled to take account of the late raising of matters by the applicant.
Ground 4 and 5: The Court rejects the contention that the Tribunal made adverse findings of credibility without a proper basis.
Ground 6: Having made adverse findings about the applicant’s credibility, it was open to the Tribunal to reject those parts of the evidence with which it was not satisfied. The Tribunal reached its conclusions carefully after hearing oral evidence from the applicant.
Ground 7: The Court rejects the contention that the Tribunal recklessly misconstrued the applicant’s evidence and questioned the applicant’s evidence. The Tribunal set out its reasons for its findings as to the applicant’s evidence.
The Court finds that the Tribunal’s decision is a privative clause decision which has not been infected with jurisdictional error. In such circumstances and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application and amended application are dismissed.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 10 May 2007