SZJZE v Minister for Immigration
[2007] FMCA 1022
•21 June 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJZE & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1022 |
| MIGRATION – Visa - protection visa – Refugee Review Tribunal – application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – applicants are citizen of Indonesia claiming fear of persecution – no reviewable error. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.424A, 425, 474 |
| SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 SZIRO v Minister for Immigration & Citizenship [2007] FCA 260 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 |
| First Applicant: | SZJZE |
| Second Applicant: | SZJZF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 26 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 21 June 2007 |
| Date of last submission: | 21 June 2007 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2007 |
REPRESENTATION
| Applicants: | In Person |
| Counsel for the Respondent: | Mr Mitchell |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Application is dismissed.
The Applicants are to pay the First Respondent's costs fixed in the sum of $5,000.00.
I allow six (6) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 26 of 2007
| SZJZE |
First Applicant
| SZJZF |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Refugee Review Tribunal. The decision was signed on 28th November 2006 and handed down on 7th December 2006. The Tribunal affirmed the decision of a Delegate of the Minister not to grant protection visas to the Applicants. The Applicants now seek judicial review of that decision.
Background
The background to this matter is that the Applicants are a wife and husband. They are citizens of Indonesia; they arrived in Australia in December 2005 and applied for Protection (Class XA) Visas on
18 May 2006.Due to the fact that a period of several months elapsed before they applied for their protection visas the Applicants have not been granted permission to work. The Applicants arrived in Australia and overstayed their visas and eventually came under notice by the Department which involved a short period of time in Immigration Detention. They applied for protection visas on the basis that they are fearful of returning to Indonesia due mainly to their involvement with an incident in November 2005.
The Applicants say that the Second Applicant, who is the husband, had obtained information in the course of his employment which led to an action by the police against a terrorist named Dr Azahari. They said that the husband had seen firearms and what appeared to be a white box with wires attached in the residence occupied by
Dr Azahari and this aroused their suspicions and they notified the police. On 9 November 2005 the police raided the premises in which Dr Azahari resided and in what appeared to be a rather fierce gun battle Dr Azahari was killed.The house in which the Applicants lived was also destroyed and indeed the Applicant wife was present at the time. It is not hard to accept that the parties would have been most fearful as a result of this traumatic incident. The Applicants claim that they subsequently received threatening phone calls from people who purported to be associates of the deceased terrorist.
The Applicants applied for a protection visa but on 24th May 2006 their application was refused. They were, according to the Tribunal decision, notified of the decision under cover of a letter dated 24 May 2006 but were re-notified under cover of a letter dated 7th July 2006 because the original letter had been sent to the wrong address.
On 27th July 2006 the Applicants applied the Refugee Review Tribunal for a review of the Delegate's decision.The Applicants had the assistance of a Migration Agent who lodged their application for them. On 8th September 2006 the Tribunal wrote to the Applicants inviting them to attend a hearing which was scheduled for 9:00am on 13th October 2006. The Applicants replied through their Migration Agent indicating their wish to appear and their need for an interpreter in the Indonesian language. That reply was received by the Department on 5th October 2006.
The Applicants' Migration Agent also provided a written submission in support of the application for review. This was dated 6th October and received by the Tribunal on 11th October. Annexed to the written submission were two psychologist’s reports, one relating to each of the Applicants, prepared by Dr Christopher J. Lennings, a clinical psychologist who reported on results of a psychological assessment conducted on each of the Applicants.
The Migration Agent also provided other information including statutory declarations by the Applicants and copies of the Applicants' Indonesian passports. The Applicants attended the hearing and gave evidence. After the hearing on 26th October 2006 the Tribunal wrote to the Applicants' Migration Agent a letter headed "Invitation to Comment on Information". The letter began:
The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you and your husband are not entitled to protection visas.
The letter then set out certain aspects of information taken from the original application for protection visas and also set out certain matters that were in the written submission provided by the Applicant's Migration Agent. The letter drew the Applicant's attention to what the Tribunal described as an inconsistency in the Applicant's evidence as to whether it was the First Applicant, the wife, or the Second Applicant, the husband who gave the information to the police and as to whether the First Applicant or the Second Applicant were identified by the police as a source of that information. The letter went on to say that that information was relevant:
Because it casts doubt on whether you are telling the truth about the events which prompted you to leave Indonesia.
The letter went on to draw other matters to the attention of the Applicants and invited them to comment on that information by 9th November 2006. A copy of that letter can be found in the Court Book at page 93 and 94.
The Applicants' Migration Agent replied in some detail to the letter on 9th November 2006. The Migration Agent forwarded a further letter to the Tribunal on 22nd November 2006 enclosing certain other items of information that had been received being documents in Indonesian which were translated into English.
The Tribunal signed its decision on 28th November 2006 and handed it down on 7th December. A copy of the Tribunal decision record can be found in the Court Book at pages 114 through to 135. In that decision the Tribunal sets out the Applicants' claims and evidence at some length from pages 117 through to 126. The Tribunal also refers to the s.424A letter and the response by the Applicants to it.
The Tribunal’s findings and reasons
The Tribunal's findings and reasons are set out in the Court Book at pages 129 through to 135. The Tribunal accepted that the Applicants were citizens of Indonesia but did not accept that it was the Applicant husband who provided the information to the police that led to Dr Azahari being killed. The Tribunal indicated that the tip-off to the police came from another source:
Furthermore, as I put to the Applicant and her husband in the course of the hearing before me and again in the Tribunal's section 424A letter, all the press reports which I have found indicate that the tip-off which led to the killing of Dr Azahari came from an arrested terrorist suspect who had been acting as a courier for Jemaah Islamiyah.[1]
[1] See Court Book, p.131
The Tribunal went on to refer to internal inconsistencies in the evidence of the Applicant and went on to make several critical findings about the Applicant's credibility. At page 132 of the Court Book the Tribunal says:
I do not accept that the applicant and her husband are telling the truth when they suggest that the Applicant's husband directly or indirectly provided the information to the police which led them to the house in Batu where Dr Azahari and his accomplice were living.
The Tribunal went on to set out other aspects of the Applicants' case which it did not accept and went on to say:
I consider that the applicant and her husband have fabricated their claims in this regard in an attempt to bring themselves within the definition of a refugee.[2]
[2] See Court Book, p.133
The Tribunal accepted that the Applicants are of Chinese ethnicity and Christian by religion and referred to the matters in the psychologist's reports. The Tribunal referred to the fact that the Applicant wife said that her only fear was her claimed fear of terrorists; that the Applicant husband referred also to what had happened to him at the time of the anti-Chinese riots in Jakarta in 1998. The Tribunal referred to Independent Country Information to the effect that the Indonesian government officially promotes racial and ethnic tolerance.
The Tribunal also did not accept that there was a failure on the part of Indonesian authorities to provide protection to either Christians or ethnic Chinese Indonesians or ethnic Chinese Christians within Indonesia whether that threat was in the context of terrorism or otherwise. The Tribunal noted that the Tribunal Member had put to the Applicants that the evidence available suggested the Indonesian government is willing and able to protect all Indonesian citizens without distinction.
The Tribunal was not satisfied that the either Applicant had a well founded fear of persecution for a convention reason if they were to return to Indonesia and affirmed the decision not to grant the applicant's Protection (Class XA) visas.
The application for judicial review
The Applicants commenced proceedings for judicial review in this Court by means of an application and an affidavit filed on 4th January 2007. The application seeks that the Court should quash the Tribunal decision and make an order in the nature of mandamus requiring the Tribunal to re-hear the application. The grounds of the application are these:
(1) The Tribunal failed to exercise its jurisdiction in accordance with the Migration Act 1958 by not acting judicially in affirming the decision of the Delegate.
(2) The Tribunal erred in finding that the Applicants are not persons to whom Australia has protection obligations.
(3) The interpreter was not competent and failed to properly translate. The Applicants were denied procedural fairness when their case was not properly and accurately heard by the RRT Member.
The Applicants attended Court and provided the Court with a written submission. In that submission the Applicants take issue with the findings made by the Tribunal. They take particular issue with the adverse findings as to their credibility. I commented during the hearing that those findings indeed appear to be harsh and it was not surprising that Applicants who consider that they have given evidence honestly would take exception to having their evidence described as having been fabricated.
It is fair to say that a significant reason why the Tribunal did not accept the Applicants' case is that the Tribunal did not accept the Applicants' evidence about a significant feature of their case, namely that it was the Applicant husband who was responsible for informing the police about the location of Dr Azahari and that it was that information that led the police to the man's house and the circumstances that led to Dr Azahari's death.
The Tribunal did not believe that the Applicants therefore had received threats from the associates of Dr Azahari threatening revenge. It is fair to say that the Tribunal did not reject all of the Applicants' evidence out of hand. It was those particular claims, however, which formed a key part of the Applicant's case that were rejected by the Tribunal. The Tribunal did say at page 125 of the Court Book:
I indicated that I accepted that they had been in Batu at the time of the incident on 9 November 2005 and that this must have been a very frightening experience for them, in particular for the Applicant, who had been at home at the time. I indicated that I accepted that their home had been destroyed. I indicated that it appeared to me that this would have been sufficient for them to fear for their safety and to want to leave. I indicated that what I had difficulty with was the claim that the Applicant's husband had provided the information which had led to Dr Azahari being killed. The Applicant's husband noted that their had been signs everywhere asking people to provide information about terrorists, in particular Dr Azahari, and offering a reward.
The Applicants in their written submission claim that the Tribunal was required, but failed, to consider and make findings in respect of their claim as the more reasonable and accurate because they had provided concrete evidence from reliable people while the arrested terrorist suspect, who was the person whom the newspaper reports had indicated had tipped off the police, would not know the address and details which were given personally by the Applicants. The Applicants pointed out that had they known at the time that the home where the Applicant husband said he had seen the firearms and other equipment, they would have claimed the large reward, being the equivalent of $800,000 Australian dollars.
The Applicants, as I said, have taken evidence at the Tribunal's claim that they fabricated their claims in an attempt to bring themselves within the definition of a refugee. They submit that that was an act of terrorism in itself and is nonsense and is an error of law. The claim that I have to consider of course is whether the Tribunal's finding is an error of law.
The Applicants also claim that the Tribunal should have made further enquiries including contacting a person called Michael, who is an Agent, whose telephone number was given and reiterated not only their claims of having truthfully given evidence but the claim that the Tribunal had failed to consider whether there was a real chance of persecution which required the Tribunal to look at the reasonably foreseeable future.
The Applicants also claim that the reasoning of the Tribunal was not based on evidence but was speculative and pointed out that the Tribunal had abundant evidence as to what happened in Indonesia, what happened to the Applicants personally and what may be used as a basis on which to predict real chances in the foreseeable future. They refer to ongoing instability in Indonesia and the role that Jemaah Islamiyah will play in putting the Applicants' lives at risk.
The first point that needs to be made is that in proceedings of this nature the role of the Court is limited. It is not a case that the Court considers all the evidence and makes its own factual findings based on that evidence. An application for judicial review of a decision of the Refugee Review Tribunal is not a hearing de novo. It is not open to the Court to consider the evidence and to substitute its own view of the facts.
It may well be that the Court on considering the evidence may come to a different view of the facts from that of the Tribunal Member but that is not the test. So long as there is evidence upon which the Tribunal could be satisfied, or could make a finding of fact, then it matters not whether the Court in the same circumstances would have made that same finding. As has been said by Gyles J in the Federal Court in SZHCJ v Minister for Immigration & Multicultural Affairs [2007] FCA 205 at [3]:
Insofar as the Federal Magistrates Court is concerned it has no role to second guess the Tribunal on matters of fact or judgment. The Federal Magistrates Court can only correct the Tribunal if jurisdictional error is revealed.
What this means is that the Tribunal's decision must be scrutinised as to whether or not there is revealed a jurisdiction error, not a factual error. The matters contained in the Applicants' written submission go largely towards a challenge to the factual findings of the Tribunal and an assertion of the truthfulness of their evidence. Unfortunately, as I said, that is in effect the claim for what is known as merits review, an invitation to the Court to re-decide the case on the facts and the Court does not have the power to do so.
The Applicants claim the Tribunal failed to consider and make findings in respect of their claim but it appears to me, on the evidence before me, that the Tribunal did consider their claim and made findings. Unfortunately for the Applicants it did not accept their evidence and did not accept their credibility on key parts of their claim.
Turning to another matter that is contained in the submission, namely an assertion that the Tribunal should have made further enquiries, there is no obligation on the Tribunal to do so. The Tribunal has the power under s.424 of the Migration Act but that power is discretionary and the Tribunal does not have a duty to investigate the Applicants' claims. (See Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12, 42-43; SZIRO v Minister for Immigration & Citizenship [2007] FCA 260 at [12]).
The Tribunal has a wider power to make enquiries under s.427 of the Migration Act but again there is no general obligation on the Tribunal to make further enquiries. It does not appear to me that the circumstances of this case were such as to generate any obligation on the Tribunal to do so. (See SZBVM v Minister for Immigration & Citizenship [2007] FCA 332 at [16]). I find that there is no obligation on the Tribunal to make any further enquiries.
I look at the grounds in the Applicant's application and the first ground alleges that the Tribunal failed to exercise its jurisdiction in that it did not act judicially when it affirmed the Delegate's decision. In this case the Tribunal made certain findings about the credibility of the Applicants' claims. These findings were based on the Tribunal's appraisal of the Applicants' material.
The Tribunal found that that material contained inconsistencies and it was those inconsistencies that provided a foundation for the adverse credibility findings made by the Tribunal. Provided that there are items of evidence upon which such findings can be made then a Court conducting judicial review would not interfere. (See Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 552 and 559).
Again the Tribunal made findings based on Independent Country Information especially as to the willingness and the ability of the Indonesian authorities to protect Indonesian citizens, whether they were of Chinese ethnicity or Chinese Christian ethnicity and religion, from harm whether that be terrorist based or otherwise. That again is open to the Tribunal. I am not satisfied that ground 1 in the application has been made out.
Counsel for the Respondent Minister submitted that ground 2 is unparticularised and meaningless in the absence of particulars. That ground said that the Tribunal erred in finding that the Applicants are not persons to whom Australia has protection obligations. In my view, that is a challenge to the findings of the Tribunal after consideration of the evidence and is a challenge to the Tribunal's factual findings. It is matter that goes to merits review, which is not open in these circumstances. Ground 2 must fail.
There is a claim in the application in ground 3 that the interpreter was not competent and failed to properly translate. This led to a denial of procedural fairness when the Applicant's case was not properly and accurately heard by the RRT Member. If this had been made out it could well go to a finding in breach of s.425 of the Migration Act but there is no evidence on that point. There is an assertion in the application but nothing to support it.
For such a claim to succeed there would need to be not only a transcript of the hearing but also evidence from a person competent in both the English and Indonesian languages who could indicate to the Court where it was that matters had been mistranslated, or not translated at all. In the absence of such evidence ground 3 cannot succeed.
I am mindful of the fact that the Applicants are not legally represented in these proceedings and I have scrutinised the decision and the supporting material carefully in order to ascertain whether there is an arguable case for jurisdictional error. In my view there is not. That being said it is hard not to have sympathy for the situation in which the Applicants find themselves. There is no doubt that the events of 9th November 2005 were frightening and would have caused the Applicants to fear for their safety.
The psychological assessments conducted by the clinical psychologist, Dr Christopher Lennings, are covered in the reports which were submitted to the Tribunal by the Applicants' Migration Agent. Dr Lennings is a well known and well respected clinical psychologist and has prepared reports for a number of years for many Courts. His reports indicate strong subjective matters which would indicate that the Applicants do indeed have significant concerns arising from the incidents of 9th November 2005.
The report by Dr Lennings on the Applicant wife can be found at pages 64 through to 68 of the Court Book. He describes at page 65 the Applicant wife's reported symptoms as being:
Consistent with a diagnosis of post traumatic stress disorder with low mood. Her condition is of moderate severity, significantly impairing her quality of life.
The Applicant husband is described in the report by Dr Lennings, at page 73 of the Court Book as a person who:
Has developed significant symptoms of anxiety and post traumatic stress disorder. At the moment he nurses a deep seated fear of reprisal for his role in the apprehension and killing of Dr Azahari should he return to Indonesia and, has no faith in the capacity or willingness of the Indonesian system to support him or protect him. Although he presents as a resilient and resourceful person, he has significant psychological concerns.
Whilst these matters were considered by the Tribunal in the context that the Tribunal considered the psychological report it is clear that the Tribunal did not give them such a degree of weight as would enable the Tribunal to be satisfied that the Applicants had made out a case that they meet the criteria in sub-s.36(2) for a protection visa. Nevertheless, it may well be that at the conclusion of the legal proceedings brought by the Applicants if those proceedings do not lead to a decision in the Applicants' favour then their strong subjective issues may well form the basis for their making a claim to the Minister to exercise the Minister's discretion under s.417 of the Migration Act.
That is a matter that the Applicants should discuss with their migration advisers and it is certainly not for me to give any indication as to whether such a claim would be successful in persuading the Minister to exercise the Minister's discretion. That is entirely a matter for the Minister. Any such application under s.417 of the Act is not, of course, a substitute for exercising whatever rights of appeal the Applicants may have through the Court system. It is a matter, however, that the Applicants should obtain qualified advice about if they wish to take this matter further.
As far as today is concerned however, and in the proceedings before me, I am satisfied that no jurisdictional error has been made out and in the absence of jurisdictional error I am obliged to find that the decision of the Tribunal is a privative clause decision as defined by sub-s.474(2) of the Migration Act, as a result no order in the nature of certiorari or mandamus are available; it follows that the application must be dismissed.
There is an application for costs in the sum of $5,000.00 inclusive of counsel's fees. That is within the scale envisaged by the Federal Magistrates Court Rules and in my view it is not an inappropriate amount. As the Applicants have not been successful this is a matter where it is appropriate to make an order for costs in favour of the First Respondent. I propose to order that Applicants are to pay the First Respondent's costs fixed in the sum of $5,000.00.
I am aware, from what I have been told by the Applicant husband that they are not in employment. I consider that I should allow time to pay and I allow six months to pay.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 29 June 2007
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