SZJTI v Minister for Immigration
[2008] FMCA 517
•24 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJTI v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 517 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZJTI”. |
| Migration Act 1958 (Cth), ss.91X, 422B, 424A, 425 |
| Applicant NADB of 2002 v Minister for Immigration & Multicultural Affairs (2005) 216 ALR 1 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169 |
| Applicant: | SZJTI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3491 of 2006 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 19 February 2008 |
| Date of last submission: | 4 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 April 2008 |
REPRESENTATION
| Applicant: | The applicant appeared by telephone |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration & Citizenship”.
The application filed on 24 November 2006 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3491 of 2006
| SZJTI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a national of Jordan and was born in December 1971. He claims to be divorced and to have lived in the United States from July 1995 to November 1999 and in Israel from November 1999 to January 2006. He states that he completed 12 years of education and holds a “Diploma of Cosmetology”. He describes his occupation before coming to Australia as “businessman”. He worked as a hairdresser in the United States and as a self-employed furniture salesman in Israel. He came to Australia legally via Jordan.
The applicant arrived in Australia on 24 January 2006 and applied to the Department of Immigration for a Protection (Class XA) visa on
24 April 2006. A delegate of the Minister refused to grant the visa on
8 June 2006and the applicant applied to the Refugee Review Tribunal (“the Tribunal”) on 28 June 2006 for a review of the delegate’s decision. The Tribunal affirmed the delegate’s decision on 4 October 2006 and it is that decision (reference number 060557018) that is the subject of this judicial review.
A Court Book (“CB”) prepared and filed by the first respondent’s solicitors is marked Exhibit “A” and is the only evidence before this Court.
With leave of the Court the applicant filed an amended application on 16 March 2007 which contains the following grounds of review:
1. The Tribunal did not discuss reasons for fear to return to US.
Particulars
The Tribunal relied on information that the US is a democracy with effective police force and decided that the claim of being unsafe was farfetched. The Tribunal was obliged to discuss the reasons for fear of put in writing particulars and seek comments from the applicant
2. The Tribunal relied on information which ought not to be considered reliable from Wikipedia.
Particulars
The Wikipedia website itself contains qualifications in relation to its information such as:
(a) “any given article may be at any given moment in a bad “state”.
(b) “Wikipedia can rapidly produce articles on timely topics, it is also subject to remarkable oversights and omissions. There are no systematic process to make sure that obviously important topics are written about”.
(c) “many contributors do not cite their sources, something that makes it hard for the reader to judge the credibility of what is written”.
3. The Tribunal used information from the FBI which is not necessarily independent information.
Particulars
It is reasonable to consider that information from FBI is not an independent source of information, in the sense of being independent of the government.
Applicant’s claims
The applicant claims that he was a self-employed businessman buying and selling furniture and appliances in Israel and Palestine. While working in Palestine he was lured to an undisclosed location by potential clients which resulted in his abduction. He was beaten and asked many questions about himself and his family. He was accused of working for the Israeli army and helping Israeli authorities capture Palestinians working in Israel. He claims he was assaulted with a knife and hit in the back with a rifle resulting in hospitalisation and permanent disability.
After being released from hospital, he informed the Israeli army about the incident and gave the approximate location of where he was assaulted. Soon after, rumours began circulating that he was a collaborator. He was gradually isolated and shunned by family and friends, especially because they knew he was opposed to violence and did not want Palestinians to enter Israel illegally.
He claims he received anonymous phone calls and he stopped going to the Palestinian area. He claims he received death threats causing him to stay away from his home and to travel to Jordan frequently. He applied for an Australian visa in Jordan. He states that he made complaints to the authorities in Jordan but no action was taken. His wife started to believe that he was a collaborator and he was forced to divorce her. After further assaults, he applied for a tourist visa at the Australian Embassy in Amman in October 2005.
In that application, he expressly stated that he had lived in the United States since 1992 and had only spent a month in Israel in 2005. He presented evidence of permanent residency rights in the United States, including a copy of his United States residence alien card which was valid until 7 July 2007. He also presented a copy of a permit to re-enter the United States. There was no limitation or restriction on this permit which was valid until April 2007. He also presented copies of his social security card and a Virginian drivers’ licence.
Tribunal decision
The applicant attended a Tribunal hearing on 5 September 2006. The Tribunal asked him questions about his ability to enter and reside in the United States (CB 110.5) and why he was unable to return there (CB 111.2). The applicant replied that the people who were after him knew everything about him and would find him in the United States.
The Tribunal then sent a letter to the applicant enclosing particulars of information that it considered would be the reason or part of the reason for its decision. In response the applicant repeated that he could not go to the United States because the kidnappers could find him and that he would feel more secure in Australia (CB 102).
The Tribunal decision, handed down on 24 October 2006, found that the applicant had a legally enforceable right to enter and reside in the United States (CB 113.10). It dismissed as “far fetched and fanciful” his claim of being pursued and hunted by Palestinians in the United States (CB 113.6). It found that the applicant had not taken all possible steps to avail himself of the right to enter and reside in the United States and that he did not have a well-founded fear for a Convention reason. It also found that he would not be returned from the United States to Jordan and thus that he was not a person to whom Australia had protection obligations.
Proceedings in this Court
At the first Court date on 13 December 2006, the applicant indicated that he wished to participate in the scheme to give unrepresented applicants in refugee matters independent legal advice on the prospects of success of their appeal. The applicant was allocated a panel advisor and the Court file indicates that he attended a conference with that advisor and was provided with advice.
The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 13 March 2007. He complied with that order and the contents of the amended application are set out at [4] above. The matter was set down for final hearing on 16 November 2007.
Shortly before the scheduled hearing, the Court received a request from the applicant to adjourn the hearing. This was supported by a letter from Dr Darweesh Al-Khawaja, a neurological and spinal surgeon. The medical report indicated the nature of the applicant’s problems together with a treatment plan. The matter was rescheduled for hearing on 19 February 2008.
Again shortly before the rescheduled hearing, a new adjournment application was received from an agent of the applicant. It was supported by a new medical certificate stating that the applicant was suffering from lower back pains caused by a motor vehicle accident on 18 January 2008. A second adjournment was denied and the applicant was invited to attend the hearing by telephone. The applicant was granted leave after the hearing to file further written submissions by
26 February 2008. The first respondent was granted leave to file written submissions in reply by 4 March 2008.
Consideration
Ground one of the amended application claims that the Tribunal did not discuss with the applicant at the hearing the reasons for his fear of return to the United States. The particulars of that ground are that the Tribunal relied on information that the United States is a democracy with an effective police force and that the Tribunal found the applicant’s claim to be “far fetched and fanciful” (CB 113.6). The applicant suggests that the Tribunal was obliged to discuss the reasons for his fears with him, or put them in writing particulars and seek his comments.
During the hearing, the applicant, although invited, did not make any submissions in respect of this issue. However, the applicant’s written submissions filed in response claimed that the s.424A letter forwarded by the Tribunal only raised the issue of his ability to re-enter the United States. It did not make any statement about his fears of return to the United States. The applicant claims that the Tribunal did not deal with the specific information he put in his response of 30 October 2006, that he feared his kidnappers knowing his location in the United States.
Mr Reilly, for the first respondent, submits that the Tribunal specifically rejected this claim of the applicant’s (CB 113.6). The Tribunal concluded that he did not have a well-founded fear of persecution in the United States (CB 113.9). Mr Reilly submits that, accordingly, there is no basis to suggest that the Tribunal had not dealt with the applicant’s claimed fears in the United States.
Significantly, in the terms of s.425 of the Migration Act 1958 (Cth) (“the Act”), the applicant had not specifically raised before the delegate any reason for him not being able to return to the United States. Consequently, the circumstances considered in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 do not apply to this matter. This was also considered in SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169 at [14] per Edmonds J:
[14] Section 425, as construed in SZBEL, requires the Tribunal to disclose to an applicant additional issues which were not live issues in the delegate’s decision or otherwise made known to the applicant as being in issue. If the Tribunal proposes to make an adverse finding on a matter where the delegate accepted or found no deficiency in the applicant’s claims and the applicant has not otherwise been notified that the matter is in issue, the Tribunal should disclose to the applicant that it has a concern about the matter ( (2006) 81 ALJR 515 at [36]). It is an entirely different matter to say that the Tribunal is bound to treat the applicant’s case before the Tribunal as identical to the case the applicant presented to the delegate. Following the delegate’s decision an applicant may present additional evidence, and/or elaborate upon or change the Convention ground claimed. The Tribunal has a duty to consider the claim as it is presented to it on the basis of all the available evidence. The Tribunal does not have a duty to inform an applicant that because the evidence on which he or she now relies is different from the evidence before the delegate, the Tribunal may make different factual findings. Nor does the Tribunal have a duty under s 425 to inform an applicant that because the claims are now framed on the basis of a different Convention ground it will be required to consider whether the evidence supports the new claim.
Another significant issue against the applicant’s claim in ground one is that the information relied on by the Tribunal was not specifically about the applicant or any other person and s.424A(1) of the Act is not enlivened because of the exemption in s.424A(3)(a). As s.424A(1) is not enlivened and in light of the operation of s.422B, there is no obligation on the Tribunal to discuss with the applicant the information “relating to effective protection in the United States”. The common law obligation of procedural fairness has been limited by the introduction of s.422B to the Act.
I am satisfied that the applicant’s claim in ground one is inappropriate in that the applicant appears to misunderstand the provisions of the Act in how they apply to this matter. The ground cannot be sustained and should be dismissed.
Grounds two and three of the amended application raise similar or related issues. Ground two claims that the Tribunal relied on information which ought not to be considered reliable, while ground three claims that the information used by the Tribunal was not necessarily independent information. The information that the Tribunal relies upon and the relative weight that it gives to such information is a matter for the Tribunal as it is part of its fact finding function: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13] per Gray, Tamberlin and Lander JJ:
[11] The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.
[12] The appellants’ submissions asserted that the Tribunal rejected all of the appellants’ claims on the basis of ‘country information’. The Tribunal’s reasons for decision do not substantiate this assertion. It is plain that the Tribunal relied to a substantial extent on the inherent improbability of some aspects of the first appellant’s story, inconsistencies between different parts of his story, and the fact of his frequent returns to Sri Lanka and the length of his sojourns there, to form its views about his credibility. In turn, it relied on its assessment of the first appellant’s credibility in determining whether it accepted some of the ‘country information’. Its treatment of the DFAT advice about Tamil males from Batticaloa, to which we have referred in [4], is an example. The very function of the Tribunal was to assess the appellants’ claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellants’ country of origin.
[13] In performing its function, the Tribunal was obliged to make an assessment of the circumstances in Sri Lanka in the reasonably foreseeable future. See Mok v Minister for Immigration, Local Government & Ethnic Affairs (No 1) (1993) 47 FCR 1 at 66. It had to assess whether there was a real chance of persecution of the appellants for a Convention reason if they were to return to Sri Lanka. The appellants complained in their written submissions that the Tribunal engaged in this exercise at all. In his oral submissions, the first appellant said that it was a legal error to base a conclusion on a hypothesis about what might happen in the future. These submissions cannot be accepted. The appellants also complained that the Tribunal made an incorrect assessment of the foreseeable future, by making a ‘mere guess’ and by relying on ‘country information’ that did not present a true picture. It is clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.
See also Applicant NADB of 2002 v Minister for Immigration & Multicultural Affairs (2005) 216 ALR 1 at [8] per Gleeson CJ and NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195 at [81] and [84].
The applicant claims that the information from the Wikipedia website quoted by the Tribunal (CB 113.7) was unreliable and was given too much weight. Also that the Federal Bureau of Investigation (FBI) website (CB 113.8) was not independent. The applicant complains that the Tribunal relied on Wikipedia in stating:
…the Tribunal is satisfied that adequate and effective protection is available to the applicant in the USA against real or perceived threat by his foreign accusers.
The applicant claims that Wikipedia is a less than reliable source. The applicant claims that the Tribunal findings were unreasonable and affected by apprehended bias.
The applicant also complains that despite the Tribunal having access to a wide range of independent country information in this matter, it chose to rely on information from the FBI which is of questionable value. The applicant then quotes from what he purports to be a decision of Madgwick J: NACL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 55. However that citation is incorrect and the cases which bear the same pseudonym do not relate to this claim.
Mr Reilly submits that there is no basis to suggest that the Tribunal acted unreasonably or displayed apprehended bias by taking into account certain country information. Nor does it matter whether the FBI website is independent or not, as what the Tribunal takes into account is a factual matter for it.
I agree with Mr Reilly’s written and oral submissions in respect of grounds two and three in that the material that the Tribunal seeks to rely upon for country information is a matter for it and does not give rise to jurisdictional error.
Conclusion
The applicant in these proceedings is a self-represented litigant who is fluent in English. The applicant has taken the opportunity to file an amended application together with written submissions and the Court file indicates that at various times he was represented by a migration agent. During the adjournment applications, the applicant indicated that his agent would be present in Court but attempts to have that person attend by telephone were unsuccessful. The applicant did not file further written submissions in respect of any issue that arose during the telephone hearing. I have independently reviewed the contents of the Court Book and the Tribunal decision and it is not apparent from the face of those documents that there is any jurisdictional error contained in the reasoning of the Tribunal. Consequently, the application should be dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 24 April 2008
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