SZJUG v Minister for Immigration
[2007] FMCA 1434
•10 September 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJUG v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1434 |
| MIGRATION – Fact finding not a function for the Court – natural justice – Tribunal not bound to adjourn for applicant to adduce further evidence – Tribunal not required to ask for further evidence to clarify issues – mala fide by solicitor not established. |
| Migration Act 1958 (Cth), ss.36(2), 422B, 422(3), 424A, 425, 427, 474 |
| Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 Selvadurai v Minister for Immigration and Multicultural and Indigenous (1994) 34 ALD 347 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 |
| Applicant: | SZJUG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3559 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 29 June 2007 |
| Date of Last Submission: | 29 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2007 |
REPRESENTATION
| Solicitor for the Applicant: | Mr S. El-Hanania of Slattery Thompson Solicitors |
| Counsel for the Respondents: | Ms T. Wong |
| Solicitors for the Respondents: | Mr J. Dooley of Sparke Helmore |
ORDERS
The application and amended application are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3559 of 2006
| SZJUG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 1 December 2006 for an order to show cause and seeking to review a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant attached an amended application to his submissions filed on 22 June 2007.
The applicant was born on 30 August 1972 and claims to be from Algeria and of Kabyle ethnicity (“the applicant”).
The applicant arrived in Australia on 10 March 2006 on a visitor’s visa and a passport issued in Ouadhias, Algeria.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 20 April 2006. In this application he claimed that he would be persecuted in Algeria as he had been previously. In the applicant’s statement (Court Book “CB” 10-11) he claimed that he had been beaten, shot at, and threatened because he allowed gay men to attend at his business (an internet café and computer maintenance business). On one occasion he was shot and sustained an injury which required surgery and hospitalisation for two months. The applicant had attended the trial of his attackers but only one was convicted, and he was afraid. The applicant travelled to the United Kingdom for three months and when he returned he claimed that the attackers shot at him again and attempted to run him down with a car. The applicant applied for another visa to the United Kingdom but was refused. He was afraid and moved from the family home in Ouadhias to his sister’s home at Bejaia (CB 10-11).
In February 2005, the applicant applied for a visa to Sweden which was refused. In July 2005 the applicant applied for a visa to the Czech Republic which was also refused. In June 2005 he lodged an application for a student visa to the United Kingdom in Tunisia and it was again refused, despite the applicant being in possession of an enrolment certificate from an English school in the United Kingdom. At the end of July 2005 the applicant’s attacker was released from prison by virtue of a presidential pardon, and the applicant became afraid for his life. He lodged an application for a visa to the United States of America, which was refused. In December 2005 the applicant applied for a visa to travel to Australia, which was granted (CB 11).
This application was refused by a delegate of the first respondent on 21 June 2006.
On 11 July 2006 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on 22 August 2006 (CB 128), at which time he maintained the claims made in his original protection visa application.
By decision handed down on 7 November 2006 the Tribunal affirmed the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 135-140) (highlighting added):
The Tribunal accepts, on the basis of his passport, that the applicant has nationality of Algeria, and assesses his claims against that country.
Essentially, it is the applicant’s claim that he fears persecution at the hands of Muslim fundamentalists in Algeria. They initially objected to his internet café operation on political and religious grounds (arising in part from his support for gays, although the Tribunal does not understand the applicant to have actually been imputed with membership of any such particular social group); his refusal to assist produce extremist material; and his later exclusion from his internet operation of any Arabic language services. This led them to destroy his internet café and seriously injure the applicant. The applicant’s evidence at a subsequent trial helped convict some of his attackers, and there have been since been attempts on his life. He recently added that they were also targeting him because of his membership of a Berber political organisation, the RCD. The applicant referred several times to his concern about prospective psychological trauma. He asserts that the police are unable or unwilling to protect him from the fundamentalists.
When determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant’s credibility. When assessing credibility, it is important to be sensitive to the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. That said, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. The Tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547. If the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true. (See MIMA v Rajalingam (1999) 93 FCR 220).
The Tribunal accepts that the applicant is a Kabyle (Berber) from Algeria, taking into account the demography of that part of the country, and notwithstanding that he failed to mention in his protection visa application that he also speaks the language used by that minority. It also accepts that, like many Berbers, the applicant is not religious.
The Tribunal is satisfied that the applicant established and operated an internet café in Oudhia from 2001, based on his oral description of the business, the photographs provided and the documentation provided in support of his visitor visa application. The infrastructure, equipment and staffing arrangements for his start-up business indicate that, even allowing for 50% funding via a bank loan, that the applicant is evidently a person of some financial means and business skills.
The Tribunal notes that the applicant initially appeared nervous at hearing, and that he variously referred to physical health problems and psychological pressure. He said, however, that these have gradually subsided in Australia. The Tribunal does not consider that any such problems affected the applicant’s ability to present his refugee claims. Nevertheless, the Tribunal has profound concerns about his credibility. For the reasons set out below, it considers that he has fabricated a significant portion of his refugee claims.
The Tribunal accepts, on the basis that it is plausible, that there was an occasion in 2002 when some conservative Arabs voiced criticism of the applicant as the proprietor of one of the first internet cafés in the Tizi-Ouzou area, perceived by them as facilitating access to pornography and the like. The Tribunal notes that in the statement attached to his protection visa application, the applicant said that they specifically referred to his allowing gays to use his internet café, whereas at hearing he said that this criticism was first levelled at him in September 2003. The Tribunal draws no adverse conclusions from this minor discrepancy. While the Tribunal accepts that the applicant may have been upset by the personal insults on that occasion, it does not consider that the incident was serious or in any way a precursor for the later alleged acts of violence.
The Tribunal does not accept the applicant’s claim to have come under renewed threat later in 2002, when he refused to type up some Arabic text for him. It finds dubious that an Arab extremist – possibly a member of the guerrilla group GSPC, the applicant thought at hearing – would take such inflammatory political material to an internet café run by a secular Berber. The applicant pointed out that the next internet café was some 35 km away, but the Tribunal does not find credible that there were no other secretarial-like services of any kind in the area. Nor is it credible that this person would leave such incriminating material with a non-supporter, for later collection (as suggested by the applicant at hearing), given the opportunity that would have provided for the authorities to be alerted. Finally, the applicant’s account of the Arab’s response and subsequent events lacks veracity. In essence, it is his claim that the Arab accepted the applicant’s refusal with nothing more than some accusations (about the applicant’s promotion of Western lifestyles and non-compliance with Muslim rules) and a threat to destroy the business, but no further action or incidents until September 2003. On the contrary, the applicant was able, without harm or disadvantage to himself, to implement a policy that effectively excluded Arabic speakers from accessing the full facilities of his internet café. The Tribunal does not accept that this incident took place at all. It follows that it also does not accept that the applicant approached the police, and that they were either unable or not interested in providing him with follow-up protection.
The Tribunal also rejects the applicant’s central claim, the alleged attack by 5 Arab intruders, presumed terrorists, in September 2003, for the reasons that follow.
First, it has difficulty accepting the applicant’s evolving account to the Tribunal of the attackers’ stated reason(s) for their assault. In the pre-hearing submission, the applicant said it was because of his promotion of homosexuality by allowing 3 local gays to use the computers and more generally the way in which the internet café helped Western values. At hearing, the applicant added that it was also because of his refusal to perform work for them, though he struggled to establish a link between these 5 intruders and any individuals who might previously have been turned away by himself or any employees of his business. In the post-hearing submission, the applicant said that these terrorists ‘had so much information about me’, and he now recalled also that they had mentioned his (newly asserted) political allegiance to the RCD. The Tribunal acknowledges that victims of such actions may have difficulty recalling some aspects of events, but it finds that the applicant’s expansion of his claims to lack veracity. It finds unconvincing, and does not accept, that his armed intruders would present what now appears to be a catalogue of reasons for their attack; instead, it finds that the applicant has invented these to form a Convention-related basis for his refugee claims.
Second, the Tribunal does not accept that the applicant’s shop was destroyed, as claimed. In the circumstances of this case, the Tribunal finds the lack of corroborative evidence significant. The applicant has produced no documentation or photographic evidence, however incidental, to support this claim. He explained that the police retained photographs of the burnt out shop, but it would seem extraordinary that there is no other record of such an incident – whether third party photographs, mortgage or insurance documents, media reports, etc. The applicant is obviously computer-savvy, and it is reasonable to expect that he would have had the opportunity at some point to check whether public directories of internet resources have noted the destruction of his business or to even record his own experiences in some form, from the safety of cyberspace. What remains is the impression that the alleged attack in September 2003 is known only to those involved in this refugee application, and that it did not in fact occur.
Third, the Tribunal does not accept that the applicant suffered gunshot wounds or other injuries as a result of this or any other violent attack. As noted in its s.424A letter, his medical examination recorded only the surgical removal of his renal glands. The Tribunal notes the photograph of the applicant lying on what appears to be a hospital bed, but there is no indication as to the timing or purpose of any such hospital visit, or the treatment being administered. The Tribunal considers that the photograph is of little probative value. The Tribunal finds it extremely unusual that, in Australia, the applicant mentioned the surgical removal of his renal glands to a medical officer, but failed to mention any other injuries which he claimed to have been linked with the assault, such as the removal of a rib and a gunshot wound (with resultant scarring, one would expect). The applicant has had ample opportunity to allay the Tribunal’s concerns in this regard, for instance by physical examination or inspection of his x-rays. The Tribunal notes the adviser’s comments at hearing that a medical record was on its way from the applicant’s sister in Algeria, but this did not materialise. The material before the Tribunal, including also the applicant’s unsatisfactory explanation for the lack of independent medical evidence concerning his alleged specific injuries, leads the Tribunal to conclude that the applicant did not suffer from gunshot wounds as claimed. The Tribunal notes also the information in the anonymous allegation that the Tribunal put to the applicant for comment. This asserted that the applicant has not suffered any gunshot wound, but that he asked his sister to obtain a fake medical record from the hospital where she works. The Tribunal would normally place no weight on such anonymous statements, however, it finds that its specificity and its consistency with certain aspects of the applicant’s own claims (that his sister would provide a medical record and that she is a dentist, thus possibly in a hospital or clinic environment) contrast markedly with the applicant’s unsatisfactory evidence concerning the alleged incident. The effect of the allegation is, therefore, to reinforce the Tribunal’s conclusion above that the claim is fabricated.
Fourth, the Tribunal finds the applicant’s conduct in the period after his alleged release from hospital in late 2004/early 2005 inconsistent with that of a person who had suffered an attack of this kind, whether or not for Convention-related reasons. The Tribunal accepts that the applicant visited the United Kingdom once and Tunisia twice, and that he sought visas from a number of countries during 2005 and early 2006. In the Tribunal’s opinion, his keenness to leave Algeria does not reveal whether his motivation was to flee persecution. It does not find persuasive the applicant’s assertion that he would not have left Algeria and his parents ‘unless I really feared for my life.’
As noted in the Tribunal’s correspondence, the applicant’s travel to the UK 2 months after obtaining a visa for that country in early 2005, his voluntary return before the expiry of his visa and his apparent failure to even enquire about protection there, cast grave doubt on whether the alleged September 2003 incident occurred and whether the applicant feared persecution for any reason whatsoever. The Tribunal has considered the applicant’s explanations for these movements – that he had health and financial problems that needed sorting before he left Algeria, that he was unaware of the availability of refugee protection in the UK, that he would have been too sick to apply for it anyway and that he had to leave the UK once his girlfriend left, as he was dependent on her assistance. The Tribunal rejects all of these explanations as lacking credibility. The applicant focused on his financial and administrative affairs before leaving Algeria, hardly the primary concern of a genuine refugee in possession of a valid visa. The Tribunal does not accept that the applicant was well enough to undertake return plane travel, yet, despite his evident English language and computer skills, did not have the capacity to at least indicate his fears in Algeria to someone in the UK or explore whether there was scope for him to seek some form of protection there. Nor does the Tribunal accept that the applicant returned to Algeria with any ‘naïve’ or ill-formed hope that his problems would have eased. The Tribunal finds the applicant’s account of his travel to and time in England to be entirely unreliable, and it rejects the claimed reasons for his failure to apply for refugee protection there. It concludes that he did not seek protection because he did not need it. He returned to Algeria for reasons unrelated to his refugee claims (such as his girlfriend’s departure from London), but in any event with no subjective fear that he faced persecution in Algeria, for any reason at all.
The applicant’s return trips to Tunisia also suggest that he did not fear persecution in Algeria in the following months. The Tribunal dismisses the applicant’s suggestion that he was ‘naïve’ in returning to Algeria on these occasions too. The applicant posited several reasons why he could not have stayed in Tunisia – lack of work, discrimination against Berbers and the risk of terrorists finding him there – but he neglected to address the main issue of concern, namely his willingness on each occasion to re-enter the country in which he now claims to face a real chance of persecution.
The above concerns lead the Tribunal to conclude that the September 2003 attack did not occur. The applicant’s business was not destroyed and the applicant was not seriously injured. The Tribunal finds that he is not a witness of truth, but has fabricated this and other claims in order to establish refugee claims. The Tribunal therefore does not accept that the applicant was hospitalised for 4 months with injuries received during any such attack; that he left hospital to give evidence against 3 of the alleged assailants; that he was shot at on several occasions after his return from abroad; or that he was in hiding at any stage, for any reason. It also does not accept any sinister suggestions arising from the applicant’s claim that he does not know where most of his brothers are.
The applicant, in response to the Tribunal’s s.424A letter concerning his delayed departure from Algeria and his tardy submission of his protection visa application, explained that his passport and visa had to be sent to him from Cairo via Paris, and provided copies of e-mails supporting this. He also said at hearing and in his letter, credibly, that his application for a transit visa for Rome was refused. The Tribunal accepts these as partial explanations of the delay, but does not accept the applicant’s additional points at hearing that his father had to sell land (implicitly at short notice) to fund his airfare. Even in accepting some of the reasons for the applicant’s delayed departure, the Tribunal does not detect a sense of urgency in his travel and therefore finds nothing to cast doubt on its conclusion above that the applicant did not and does not have a subjective and well-founded fear of persecution.
From 10 August 2006 on, in his pre-hearing submission to the Tribunal, the applicant also asserted that he feared persecution for reason of his association with the Berber party RCD. At hearing, he mentioned this only at the Tribunal’s prompting, and then presented a series of improvised assertions that he had been a ‘secret member’ of the RCD and that he had been active in ‘d’Arouch’ (a popular Berber movement). In his response to the Tribunal’s s.424A letter – querying why he had omitted reference to any such political activity in his protection visa application – the applicant asserted that he was a secret member of the RCD, because he feared (further) persecution if he became active. He argued in the alternative that he had left out reference to it because he did not have proof (such as a membership card), an evidentiary problem that does not appear to have inhibited his presentation of other refugee claims. In view of the inadequacy of these explanations, the inconsistencies in the applicant’s own account of what his connection was with the RCD and its overall negative credibility findings, the Tribunal rejects the applicant’s claim to have had any personal involvement with the RCD or any other political group, and it also rejects his claim to have experienced any past harm or to have any fear for this reason.
However, the Tribunal accepts that the applicant, like many Berbers living in Kabyle, personally favours the broader political agenda, including greater Berber autonomy. Although that region continues to experience security problems, including for reasons of ongoing terrorist activity by the GSPC and other groups (as noted in country information provided by the applicant), the Tribunal does not accept that the mere fact of being a Berber or of privately favouring greater autonomy establishes a real chance of persecution by terrorists or by anyone else. The Tribunal also accepts that the applicant is secular and Westernised in his outlook, like many other Berbers (as he notes in his submission). The material before it does not suggest that these attributes establish a real chance of persecution in the Berber-dominated area of Kabyle or anywhere in Algeria. The applicant’s own conduct, in particular his return trips to his home area from the UK and Tunisia, indicates that he does not fear persecution for any of these reasons.
The Tribunal has nonetheless considered whether there is a real chance that the applicant would be denied protection from such harm as might befall him, on a selective and discriminatory basis related to one or more of the Convention grounds (such as his Berber ethnicity, his low profile support for Berber autonomy or his secularism). The applicant claims that the police failed to provide protection to him, and he set out examples of perceived police inadequacy – occasions when the he was unable to identify his assailants, the police were not interested or they refused to allow him to carry weapons (a not unreasonable response given his lack of military or weapons training). Significantly, the applicant’s narrative includes an account of the police having acted swiftly and effectively to prosecute those responsible for the September 2003 attack on him. Having dismissed the alleged instances of past harm, it follows that the Tribunal also does not accept that the applicant in fact ever approached the police for protection or gave testimony in court against anyone. However, it finds nothing in the applicant’s (untruthful) narrative on these matters to suggest that he would be unable to approach the authorities for protection if needed or that he would be denied protection on any discriminatory grounds.
The Tribunal notes the applicant’s references to having suffered psychological pressure, and to his short stature as making him readily recognisable to targeting by his opponents. These were made in the context of his overall refugee claims, and (taking into account the above adverse findings) the Tribunal is not satisfied that these or any other personal circumstances or factors give rise to a real chance of serious harm if the applicant returns to Algeria.
The Tribunal has considered the applicant’s claims individually and cumulatively. It finds that he is not a credible witness; that he has not suffered past harm, let alone serious harm, for any Convention-related or other reason; and that the mere fact of his Berber ethnicity, secular attitudes, Western lifestyle and supporting Berber political goals in a private way does not establish a real chance of persecution. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of Convention-related persecution, now or in the reasonably foreseeable future, if he returns to Algeria. He is not a refugee.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) for a protection visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth) (“the Act”).
The application
The applicant set out four grounds as follows:
(1)Threat of terrorist in Algeria
(2)Internet café business destroyed and wounded
(3)Shooted (sic) many times
(4)Risk of death if return to Algeria
The amended application
The applicant set out grounds and particulars as follows:
(1)The Applicant was denied procedural fairness by not being able to induce material evidence to the Tribunal, the Second Respondent prior to the decision and as a result amounted to jurisdictional error of law.
(2)The Second Respondent misconstrued or misapplied s.424A of the Migration Act 1958 (“the Act”) which amounted to a jurisdictional error of law.
(3)The previous representative of the Applicant failed to notify the Tribunal of the material evidence at hand prior to the decision.
Particulars
(a)The legal representative of the Applicant at the hearing informed the Tribunal that “a medical record was on its way from the applicant’s sister in Algeria.”
(b)The Member of the Second Respondent invited the Applicant to comment on the bullet wound but did not provide information to comment about what is stated above in paragraph (a).
(c)The Tribunal in the letter dated 23 August 2006 did not ask the Applicant to provide medical records which were coming from Algeria by his sister, rather a generalised questioner and as a consequence misconstrued s.424A of the Act.
(d)The Member of the Second Respondent in his findings and reasons stated “the Tribunal did not accept that the Applicant suffered gunshot wounds (CB 137). If the Member was provided with material evidence of the bullet wounds then it would have been open to the Member to accept this evidence and may have formed a different view.
(e)This information lead the Tribunal Member to conclude that the Applicant had fabricated his claims.
(f)The Tribunal indicated from the anonymous statements that the Applicant’s sister would obtain fake medical record and it placed weight in this anonymous statement without the evidence of the material records.
(g)The previous solicitor of the Applicant may have acted mala fide by not submitting the required medical evidence and did not follow instructions.
Findings of the Court in relation to the application
Each ground in the application asserts matters of fact that have already been rejected by the Tribunal. The Court refers to the following statement in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]:
In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal.
The Tribunal’s conclusions that the applicant was not credible and his claims untrue are findings of fact par excellence: Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]. So long as the Tribunal’s findings were open to it, no error is demonstrated: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64-69] per Tamberlin and R.D. Nicholson JJ. The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].
Each ground in the application seeks a review of the merits. Such a review is not open.
Findings of the Court in relation to the grounds in the amended application
Ground one alleges a denial of procedural fairness by not being able to adduce evidence to the Tribunal. The Court accepts the following submission for the first respondent:
The RRT’s reasons for decision record the following exchange between the RRT and the Applicant’s adviser during the hearing (CB 133):
The applicant’s adviser flagged that the applicant hoped to receive documents in the coming days from his sister, namely medical records and business-related documents. The Tribunal drew to the applicant’s attention its task in examining any such documents in the context of the overall evidence, including their contents and provenance.
The Applicant’s affidavit sworn 13 April 2007 deposes to the following chain of events following the hearing:
(a)On 28 August 2006, the Applicant received evidence from France confirming his bullet wounds and admission to hospital;
(b)the Applicant showed the documents to his legal adviser, who stated that the Applicant needed to obtain translations of the documents;
(c)the Applicant was unable to obtain those translations immediately, as he had no money and told his legal adviser to tell the RRT that he would translate the documents in time.
There is no suggestion that the Applicant failed to submit the medical evidence to the RRT because of any statement made by the RRT to either the Applicant or the Applicant’s adviser. The RRT did not reach its decision until 16 October 2006, more than six weeks after the Applicant claims to have received the medical evidence, thus providing ample time for the Applicant to submit the medical evidence if he chose to do so.
It was for the Applicant to adduce evidence in support of his claims: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ.
No error has been demonstrated in the procedure adopted by the Tribunal in reaching its decision.
Section 422B of the Act provides that the subdivision is taken to be an exhaustive statement of the natural justice hearing rule in relation to matters they deal with. There is no requirement in Division 4 of Part 7 of the Act for the Tribunal to adjourn the proceedings to enable an applicant to adduce evidence. Here the applicant had ample opportunity between the hearing on 22 August 2007 and the date of the decision signed on 16 October 2006, to adduce the evidence he wished. There is no transcript before the Court to show that the applicant sought an adjournment, and in any event, the power to grant an adjournment is discretionary: s.427(1)(b). Ground one is rejected.
Ground two alleges a breach of s.424A of the Act by the Tribunal failing to notify him of the Tribunal’s observation that there were no medical records to support his claim that he had suffered bullet wounds. The Court refers to the following passages in the decision of the High Court of Australia in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]:
Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”
does not encompass the tribunal’s subjective appraisals, thought processes or determinations…nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc.
The applicant alleges that the s.424A letter of 23 August 2003 (CB 108) does not appear to address s.424A. Neither that, nor his allegation that the Tribunal wrote another 424A letter to him in relation to an anonymous phone call, show a breach of 424A. Ground two is rejected.
Ground three complains about the failure of his representative to notify the Tribunal about hospital records possessed by him. The particulars allege:
(a) The applicant’s legal representative advised the Tribunal at the hearing that “a medical record was on its way from the applicants sister in Algeria.”
The Court notes that the Tribunal referred to this in its decision (CB 138.2) and noted that the records did not materialise.
The Tribunal then set out that it had received an anonymous phone call about his sister obtaining a fake medical record. That information was put to the applicant in an s.424A letter dated 31 August 2006 (CB 111). The Tribunal had no duty to adjourn the proceedings to await the medical report, but in any event the decision was not signed until 16 October 2006 which was ample time for the report to be provided. No error of law arises from particular (a).
Particular (b) makes no sense and therefore is not a proper ground for review and is rejected.
Particular (c) alleges a breach of s.424A because the Tribunal did not ask the applicant to provide medical records. Section 424A does not require the Tribunal to ask the applicant to produce evidence. The Tribunal was not under a duty to enquire: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [61]; Minister for Immigration and Multicultural and Indigenous Affairsv SGLB (2004) 207 ALR 12 at [43]. No error of law is shown. Particular (c) is rejected.
Particular (d) complains about a finding of fact that was open to the Tribunal on the material before it, and complains that if the Tribunal had further information it would have been open to it to form a different view.
The Court applies the following submissions in another matter:
The reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Federal Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 (Beaumont, Merkel and Hely JJ), NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (French, Emmett and Dowsett JJ) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (Black CJ, Sundberg and Bennett JJ) confirm that this is a valid reason for the application to be rejected.
Particular (d) is rejected.
Particular (e) complains about a finding of fact/credibility. That finding was open to the Tribunal on the material before it. Particular (e) is rejected.
Particular (f) complains about the weight that the Tribunal placed on the anonymous statement. “The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances”: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27]. Particular (f) is rejected. The Tribunal took a cautious approach to the assessment of weight (CB 138.4) and provided the applicant by a s.424A letter with an opportunity to comment.
The applicant referred to the passages at CB 130 that refer to the lack of reference to the injuries allegedly suffered by the applicant apart from the removal of his renal glands, and the comment that the applicant’s advisor said that medical records were on the way from the applicant’s sister in Algeria but this did not materialise. It was then put for the applicant that s.424A required the Tribunal to invite the applicant to provide evidence to support the comment that medical records were on the way that would support the claim that the applicant had been shot. The applicant contended that s.424A(1) required this. Clearly it does not. Section 424A(1) does not even require the Tribunal to refer to the provision of medical reports by the applicant’s sister, as that was information provided by the applicant for the purpose of the application and therefore covered by the exception in s.422(3)(b).
It was then asserted that s.427(1) required the Tribunal to invite the applicant to provide the information. Again, that is not correct. Section 427(1)(d) provides a discretion for the Tribunal to conduct investigations “that the Tribunal thinks necessary.” It was then asserted that s.424 required the Tribunal to invite the applicant to obtain further evidence. Again the power in s.424 is discretionary. It is correct that s.425 requires the Tribunal to invite the applicant to appear at the hearing to give evidence. That was done (CB 55). That section does not require the Tribunal to invite the applicant to put further evidence on an issue. It was then asserted that case law required an invitation to be put. The passage in SAAP v Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA 24 at [77] was referred to as follows:
Parliament had made the provisions of s.424A one of the centrepieces of its regime of statutory procedural fairness. Because that is so, the best view of the section is that failure to comply with it goes to the heart of the decision making process. Consequently, a decision made after a breach of s.424A is invalid.
The applicant referred to the statement in SZEEU vMinister for Immigration, Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [163] that:
The strict view that the courts have taken in relation to beaches of the rules of natural justice can, in my view, inform the application of the expression “a part of the reason” in s.424A.
None of these matters establishes that the Tribunal had a duty to invite the applicant to provide further proof about the medical records being on their way from the applicant’s sister, especially when that comment was made at the hearing on 22 August 2006 and the decision was not signed by the Tribunal until 16 October 2006. The applicant therefore had every opportunity to provide the evidence but failed to do so. As stated by the Tribunal “it did not materialise” (CB 138). The 424A letter of 23 August 2006 (CB 108) clearly put the applicant on notice that there was “no suggestion of your having your back rib removed or of having bullets removed from your upper body.” Further, the 424A letter of 31 August 2006 (CB 111) put the applicant on notice that the Tribunal had an allegation that the applicant’s sister in law helped to issue fake medical certificates to the effect that bullets were operated out of (the applicant’s) body. The Court finds no error of law by the Tribunal.
Particular (g) complains about the conduct of the applicant’s previous solicitor or alludes to, without proof, of possible “mala fide” by not submitting evidence and not following instructions. The complaint is unsubstantiated and raises no ground for judicial review.
All grounds in the amended application are rejected.
Conclusion
The Court finds that the Tribunal’s decision is a privative clause decision, and has not been affected by 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-two (32) paragraphs are a true copy of the reasons for judgment of Turner FM
Acting Associate: Mary Giang
Date: 20 August 2007
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