SZKGK v Minister for Immigration

Case •

[2008] FMCA 242

•

7 March 2008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKGK & ANOR v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 242
MIGRATION – Review of decision of the Refugee Review Tribunal – procedural fairness – adverse credibility finding – allegation that the Tribunal failed to take consider independent country information – allegation of bias and bad faith – allegation of fraudulent conduct on behalf of a migration agent – no jurisdictional error in Tribunal’s conduct – application dismissed.
Migration Act 1958 (Cth), ss.422B,425, 424A
SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62
Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61
Re Minister for Immigration & Multicultural Affairs; Ex parte Duairajasingham [2000] HCA 1
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749
SBAN vMinister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591
Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142
Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 179 ALR 425
The Minister Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Craig v South Australia [1995] HCA 58
Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
SZHNV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 597
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
SBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 431
Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142)
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
Applicants: SZKGK & SZKGL
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 662 of 2007
Judgment of: Nicholls FM
Hearing date: 19 February 2008
Date of Last Submission: 19 February 2008
Delivered at: Sydney
Delivered on: 7 March 2008

REPRESENTATION

Counsel for the Applicants: Nil
Solicitors for the Applicants: Nil
Counsel for the Respondents: Ms B Nolan
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The application made on 26 February 2007 and amended on 23 July 2007 is dismissed.

  2. The applicants pay the first respondent’s costs set in the amount of $3,525.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 662 of 2007

SZKGK & SZKGL

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to the Migration Act 1958 (Cth) (“the Act”) on 26 February 2007, and amended on 23 July 2007, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), signed on 1 January 2007 and notified to the applicants on 30 January 2007, which affirmed the decision of a delegate of the respondent Minister to refuse to grant protection visas to the applicants.

Background

  1. The first respondent has filed a bundle of relevant documents in this (the Court Book - “CB”) from which the following background may be discerned.

  2. The applicants are husband (“the applicant”) and wife (“the applicant wife”) and are citizens of the Philippines.  They arrived in Australia on 6 November 1999.  On 31 October 2000 they applied for protection visas (application reproduced at CB 1 to CB 25). On 23 November 2000 a delegate of the respondent Minister refused to grant protection visas to the applicants (CB 26 to CB 34). On 26 July 2006 the applicants applied to the Tribunal for review of that decision (CB 35 to CB 38).

  3. By letter dated 22 September 2006, the Tribunal acknowledged receipt of the applicants’ application for review and advised the applicants that their application was out of time (CB 39 to CB 40).

  4. The applicant wrote to the Tribunal on 17 October 2006 and stated that he was unaware of the requirements for lodging an application for review with the Tribunal but that he acknowledged that his application for review had been lodged out of time. He requested that notwithstanding his delay in applying for review, the Tribunal proceed to a hearing in his matter (CB 41). The Tribunal subsequently agreed to this request.

  5. By letter dated 25 October 2006, the Tribunal wrote to the applicant and invited him to attend a hearing before it (CB 42 to CB 43).

  6. By letter dated 27 November 2006, the Tribunal wrote to the applicant and invited him to comment on information that it said may be the reason, or part of the reason, for it affirming the decision under review (“the s.424A letter”) (CB 46 to CB 48).

  7. By letter dated 19 December 2006, the applicant responded to the Tribunal’s s.424A letter (CB 49 to CB 50).

  8. I should note that while the fears claimed by the applicant encompass both of them, the applicant wife appears content to have allowed her husband to press claims on her behalf. She did not make any claims in the protection visa application, she applied for a protection visa as a member of his family unit (see CB 24 to CB 25) and while she was part of the application for review (see CB 38.5) she did not take an active role in pressing any additional claims specific to her before the Tribunal. Nor did she give evidence before the Tribunal, although invited to do so (see CB 43, CB 44), nor even attend at the hearing (CB 45).

The applicants’ claims to protection

  1. The applicants’ claims to protection arose from circumstances of claimed persecution by military authorities in the Philippines.  The applicants claimed they owned a “motor and transport service” in Central Luzon in the Philippines.  They claimed that over a ten year period they had clientele from “both sides” of politics, and had been involved in their clients’ politics.  The applicants claimed that they became the victims of rumours to the effect that they supported the New People’s Army (“the NPA” – an armed opposition group in conflict with the Philippine authorities), and as a result, the military authorities placed them under surveillance.  The applicants claimed that they spoke with the “colonel officer of the Armed Forces of the Philippines” and that they were advised that there were no such rumours, but that it was no longer safe for them to continue to live, presumably, in Central Luzon, and to continue to run their business.  The applicants claimed that they moved to Manila after unsuccessfully applying for visas to travel to Japan and Taiwan, but claimed that they were discovered in Manila, and again, that a solider who knew them warned them to “be carefull.”

  2. The applicants claimed to fear both the military authorities and the NPA by reason that their constant surveillance prevented them from establishing the same business that they had left in Central Luzon.  They claimed to fear that they would continue to be “harassed” by Philippine military authorities, either directly or indirectly through third parties, who would tell them that their lives were “in danger”.

  3. The applicants claimed to fear the military authorities because they were perceived as NPA supporters and were “covering up” for them by providing motor services to them.

The Tribunal

  1. The applicant appeared before the Tribunal on 24 November 2006 (CB 45.3).  The Tribunal’s account of what occurred at the hearing is reproduced at CB 58.8 to CB 62.2.

  2. The Tribunal found that the inconsistencies in the different sets of claims put forward by the applicant in his original application and to the Tribunal, “cast doubt” on whether the applicant was telling the truth about his experiences in the Philippines (CB 66.10 to CB 67.1).  It found that this was relevant to the applicant’s “overall credibility” (CB 67.1).

  3. Further, and for reasons arising out of matters discussed at the hearing (see CB 68.4 and CB 68.8) the Tribunal did not accept that the applicant told “the truth about his and his wife’s past experiences in the Philippines or the persecution he claims he fears they will face if they return to the Philippines now” (CB 69.3).

  4. The Tribunal accepted that the family’s motor and transport business was still operating and that the business had not been forced to close (CB 69.5).  The Tribunal did not accept the applicant’s claims to have befriended a high-ranking NPA officer who was arrested, and that the applicant was blamed for this by the NPA who believed that the applicant was passing on information to the military authorities (CB 69.6).  Nor did the Tribunal believe that the applicant’s wife was suspected by the NPA to have passed on information to the military (CB 69.6).  The Tribunal also did not accept that the applicant and his wife had been warned by military authorities to be careful while they were living in Manila (CB 69.7).

  5. The Tribunal did not accept the applicant’s explanation as to why he did not mention in his original protection visa application his subsequently claimed friendship with “a high-ranking NPA officer.” (CB 69.10 to CB 70.1).  Nor did the Tribunal accept that the “essence” of the applicant’s claims as set out in the original application and as made at the hearing were the same (CB 70.1).  The Tribunal noted that the applicant had claimed in his original application that he feared the military authorities because they believed that he was a supporter of the NPA, but that at the hearing the applicant claimed to fear the NPA (CB 70.3).

  6. Ultimately, the Tribunal found that neither the applicant nor his wife feared persecution by either the NPA or military authorities in the Philippines on the basis of the inconsistencies in the applicant’s claims, and given the delay in the applicant’s making his original application for a protection visa and his subsequent delay in seeking review of that decision before the Tribunal (over five and a half years) (CB 70.5).  In all, therefore, it affirmed the decision under review.

Application to the Court

  1. The amended application to the Court appears to put forward two grounds (with particulars, some of which are in the form of submissions):

    “The Refugee Review Tribunal did not follow the law of natural justice and procedural fairness at the time of making decision and doing so made jurisdictional error and error of law.

    …

    The Tribunal wrongly interpreted applicants’ causes and made a wrong issue, which lead to jurisdictional error and error law.  The Tribunal failed to understand evidence that the applicants produced to the Tribunal.”

    [Errors in original]

  2. A number of the particulars appear to assert additional errors on the part of the Tribunal. The applicant has also filed an affidavit made on 23 July 2007 annexing a transcript of the hearing before the Tribunal, which also asserts jurisdictional error on the part of the Tribunal, but its absent any particularity.

Hearing before the Court

  1. At the hearing before the Court, the applicant appeared in person.  The applicant wife did not appear. I was satisfied in all the circumstances that the applicant had come with her knowledge and was willing to represent her interests. Ms B Nolan of Counsel appeared for the first respondent. Written submissions were filed on behalf of the first respondent and were also made before the Court.

  2. A paragraph of 20 atAt the hearing, that the applicant stated in that of the Tribunal did not accept the credibility of his claims because of inconsistencies in here’s his claims, that there was a reason for these inconsistencies, as they arose from his original application for a protection visa, which had been prepared with the assistance of a friend, and to the tribunalTribunal did not accept an his explanation for these inconsistencies in the following.

  3. Following submissions via him is no wonder thatby Ms Nolan, the applicant conceded that the float “result” before the Tribunal was probably quote “because of my mistakes.” he” He explained that he had relied on the bad advice of friends and others, but Bart asks the court ruled thatasked the Court that he not be sent back to the Philippines because of”  those “mistakes,” because hinting he would be killed if he were to return the. The applicant stated that he had been away in from his children in the for three years (the children appear to have remained in the Philippines) and that he had not remained away from his children for this period other than for the fact that he feared for his life. Beyond this the applicant was unable to assist in relation to the matters asserted in the amended application.

Consideration

  1. The applicants’ first stated ground sir asserts a breach of “the law of natural justice and procedural fairness in the.” The first set of “particulars” in support of this ground of does not assert jurisdiction or error jurisdictional error, or give particulars of jurisdictional error, in support of the criminal and very theseground. These paragraphs repeat the applicant’s claims and, at best, can be seen as in summarising, in part, the tribunal’sTribunal’s decision the . The first set of particulars, therefore, does not assist in a revealing error as to the ground stated for review. 

  2. New paragraph inIn any event, this is a matter to which s.422B of the Act applies (the application to the for review was made on 26 July 2000 Sikhs 2006 – CB 35) as). As such, this section operates to make the provisions set out in division four apart sevenDivision 4 of Part 7 of the actAct the exhaustive statement of the requirements of the natural justice hearing rulethe natural justice hearing rule (of course, absent buyers) (CSZCIJ thebias) (see SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 per Heerey, Conti and Jacobson JJ, at [8]; Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61 per Heerey, Conti and Jacobson JJ at [59] – [67]).

  3. inIn this regard and, the applicants were invited before the Tribunal to comment on information which the tribunalTribunal said maymay be the reason all of part of the reason for deciding that they were not entitled to a protection visa (with reference to s.424A of the Act) (CCB 46 to CB 48 to the) The applicants responded to this letter (CB 49 to CB 50 further). Further, the applicants were invited to a hearing before the tribunalTribunal by letter dated the fifth of25 October 2006 (CB 42 to CB 43 the). The letter, from the information of have put before the Court the letter, complied with the relevant statutory and regulatory requirements as to notice and relevant prescribed period ((see sectionperiods (see ss.424B(2), 425A , 441A84 section 441 see for read 4.35D and section (4 to five a) sorry also at that section ), 441C(4 24B two.  New paragraph in the) and Reg.4.35D).

  4. Although not specifically complained of in terms of the applicant’s general complaint of a breach of procedural fairness, I note that both the Tribunal’s account of what occurred at the hearing, and the transcript of the hearing reveal, for the purposes of procedural fairness and the Tribunal’s obligations pursuant to s.425 (in light of what the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63), that the Tribunal plainly put to the applicant, during the course of the hearing, that it did not believe his evidence. [See in particular, CB 60.4: “I put to the Applicant that it was a little difficult to accept that the NPA would have believed that he had given the information which had led to the camp being raided.” See also T 22.8: “[The Tribunal member]: That suggests that your claims are not genuine, that you didn’t have any fear of persecution?” See also T 26.7: “[The Tribunal member]: Can I put it to you, [applicant], it appears to me that you are not telling me the truth”].

  5. The issue which was determinative in disposing of the review, was clearly the credibility of the applicant and his claims. This was squarely put to the applicant at the hearing and he was given the opportunity to comment. I cannot see any breach of procedural fairness in relation to the conduct of the hearing by the Tribunal.

  6. The second set off particular isof particulars to the first ground (comprising of four paragraphs), for the most part, take issue with the tribunal is the finding tribunal’sTribunal’s findings, particularly it’s aits finding on the lack of the applicant’s credibility, and complains that the Tribunal took into account “the negative information to dismiss the application” and did not take into account “many positive information.”

  7. The following complaints appear to emerge from these four paragraphs.

  8. The Tribunal did not take into account independent information. It is not clear what independent information the applicants now assert that the Tribunal should have taken into account. Nor can I see that the Tribunal’s decision turned on any application of, or reliance on, independent country information, if this is what is meant by this phrase in these particulars.

  9. Simply, the Tribunal rejected the applicant’s claims based on the adverse view that it took of the applicant’s credibility, largely for reasons arising out of inconsistencies in the applicant’s claims, the view that the Tribunal took of the applicant’s evidence at the hearing before it, and the adverse view that the Tribunal took of the applicant’s explanation for the inconsistencies and the long delay (five and a half years) in seeking review of the delegate’s decision. On what is before the Court now, the Tribunal’s findings in this regard were open to it on what was before it. Findings of fact, including findings of credibility, are, of course, for the Tribunal, as the relevant decision maker “par excellence” (Re Minister for Immigration & Multicultural Affairs; Ex parte Duairajasingham [2000] HCA 1 per McHugh J at [67]).

  10. The statement that “the Tribunal made the decision that sit on his mind before made the decision” may be construed as an allegation of bias or bad faith, in that the Tribunal had predetermined the outcome of the review without proper consideration and did not bring an open mind to the proceedings.

  11. I note relevant authorities in this regard. In Minister for Immigration and Multicultural and Indigenous Affairs v Jia[2001] HCA 17, the High Court said that allegations of actual bias must be distinctly made and clearly proven. Actual bias requires evidence of “prejudgement” by the decision-maker in the sense that he/she is “so committed to a conclusion already formed as to be incapable of alteration or of being persuaded differently, whatever evidence or argument may be presented” (at [69], [71]-[72], [127]). No evidence of bias is apparent in what is before the Court.

  12. The test for apprehended bias was considered in Re Refugee Review Tribunal; ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27]- [28] and [30]-[31]. That test is whether a hypothetical fair-minded lay observer who has been properly informed of the nature of the proceedings, the matters in issue and the relevant conduct said to give rise to an apprehension of bias, might reasonably apprehend that the Tribunal member might not bring an impartial mind to the question to be decided. The evidence before the Court does not support such a complaint (see further at [49] below).

  13. In relation to bad faith, the propositions in the Full Federal Court decision of SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 have been followed, and in some senses extended by the Full Federal Court SBAN vMinister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 and Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142. The authorities reveal that an allegation of bad faith is a serious matter, involving personal fault on the part of the Tribunal member. Such a complaint should not be made lightly. There was no evidence before the Court to support such a claim.

  1. That the applicant seeks to repeat and explain claims made and evidence put before the Tribunal, does not in all the circumstances now, rise above a request for impermissible merits review (The Minister Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). Nor does the complaint that the Tribunal did not consider their “explanations” in a favourable light, in the circumstances, reveal jurisdictional error on its part. The Tribunal’s adverse finding as to the applicant’s credibility was open to it on what was before it. It gave reasons on which its finding was based. The Tribunal’s consideration in this regard was within jurisdiction.

  2. This ground, and the particulars purportedly in support, do not reveal jurisdictional error on the part of the Tribunal.

  3. The second ground asserts that the Tribunal “wrongly interpreted the applicants’ causes and made a wrong issue.” There do not appear to be particulars specifically directed to this complaint. The two paragraphs following this ground with reference to Craig v South Australia [1995] HCA 58 and Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340 appear to be directed to what would amount to jurisdictional error. But beyond assertion, they do not relate any such error to the circumstances of the case currently before the Court.

  4. To the extent that the applicants’ complaint may be said to be that the Tribunal did not understand the applicants’ claims, or evidence, or ignored some evidence and claims or failed to take them into account, this is plainly not made out.

  5. The application does not point to any claims that the Tribunal ignored or did not address, nor does the application state whether the Tribunal took into account any irrelevant considerations. Any plain reading of the Tribunal’s decision record reveals that it understood the applicants’ claims, comprehensively set these out, and that each aspect of the claims was discussed at the hearing (with reference to both the Tribunal’s account and the transcript).

  6. Ultimately, the Tribunal rejected the applicant’s claims because it formed an adverse view of the credibility of the applicant, as arising from his evidence given at the hearing, the delay (one year) in applying for protection visas and the delay (five and a half years) in making the application for review. The applicant may feel aggrieved that the Tribunal did not believe him. But that does not, on its own, reveal jurisdictional error or reveal jurisdictional error in the way as perhaps derived from what was said in Craig v South Australia, the case on which the applicant relies. As set out above the Tribunal’s adverse credibility finding was open to it on what was before it. The Tribunal gave comprehensive reasons for this. No jurisdictional error is discernible in this regard.

  7. The last section of the amended application contains particulars “(a)” to “(j)” inclusive. As the first respondent submits, these particulars assert a variety of legal errors but do not appear to be particulars in the sense of supporting any ground for review, but in fact could probably be seen as separate grounds without themselves containing particulars. Some of these have already been addressed above.

  8. In any event (a) and (i) assert a breach of procedural fairness and “deprivation” of natural justice. For the reasons already set out above these complaints do not succeed. Particulars (b), (e) and (i) assert error on the part of the Tribunal but provide no detail as to exactly where that error is to be found, either in the procedures adopted by the Tribunal or its decision record. In any event on the material before the Court none of these complaints can be made out.

  9. I agree with the first respondent that paragraphs (c), (f) and (h) seek to re-agitate before this Court, matters leading to the Tribunal’s factual findings and seek impermissible merits review. I agree that they should be rejected for that reason.

  10. Particular (d) appears in part related to ground two above and is rejected for the same reason. [See [41] to [43 above].

  11. Particular (g) asserts that the Tribunal’s decision was “not justifiable by the evidence.” As I have already set out above, the Tribunal’s findings upon which its ultimate conclusion was based were open to it on the material before it, and for the reasons that it gave. This complaint does not succeed for that reason. To the extent that the applicants complain that the Tribunal’s decision was based on “assumption”, the Tribunal is required, in the exercise of its jurisdiction, to make findings of fact which would either lead it to be satisfied that a protection visa must be granted to an applicant, or not so satisfied. I cannot see that what the applicant seeks to characterise as assumption, were anything more than findings of the Tribunal open to it, with which the applicant simply does not agree.

  12. Particular (j) asserts bad faith on the part of the Tribunal because it made presumably adverse “remarks about credibility” of the applicant. As the first respondent submitted, the fact that the Tribunal made adverse credibility findings, does not of itself indicate bad faith on the part of the Tribunal (SZHNE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 597 per Cowdroy J at [8] and [19]). Nor, bearing in mind the matters required to successfully argue in support of an assertion of bad faith, including the need to provide evidence, this complaint is not made out. (SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 as followed and extended by the Full Court in SBAN v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 431 and Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142).

  13. During the course of the hearing before the Court, the applicant sought to explain that inconsistencies appearing between his “original” application for a protection visa and his subsequent evidence before the Tribunal were because he had relied on a friend of a friend and that mistakes had been made. With SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 (“SZFDE”) in mind, Ms Nolan submitted that lest it be said that the applicant claimed some sort of fraudulent conduct on the part of this person, that there was no evidence before the Court to support any such claim.

  14. I agree with the latter part of this submission, and note further that I did not see the situation and circumstances that were before the Courts in SZFDE as being applicable here. In that case, the High Court found that fraudulent conduct by a migration agent in circumstances where this led to the applicants not taking up an invitation to appear at a hearing before the Tribunal, vitiated the Tribunal’s exercise of its jurisdiction and its obligations contained in Division 4 of Part 7 of the Act.

  15. Plainly, the circumstances of this case can be distinguished, in that even if there had been any fraudulent conduct by this friend of a friend it would have been conduct relevant to the application for a protection visa, and not to any exercise of the Tribunal’s jurisdiction. But in any event no evidence whatsoever of fraudulent conduct has been put before the Court, and it must be said that I did not understand the applicant to be making any such claim. Rather, he simply sought to explain that the person who assisted him made mistakes which he ultimately, towards the end of the hearing, accepted as: “my mistakes”.

  16. That the applicant conceded that he may have made mistakes in the submission of his claims to the Tribunal, but that nonetheless if he is sent back to the Philippines he will be killed, does not assist the applicants. Any such claim does not reveal jurisdictional error on the part of the Tribunal. Unfortunately for the applicants this cannot be seen as other than pressing merits review before this Court. An avenue that this Court is unable to tread.

Conclusion

  1. The Tribunal’s decision record reveals that it carefully considered each of the applicant’s claims, and each of the claims as they encompassed the applicant wife. It simply did not believe the applicant for reasons which were open to it on the material before it. Such findings in the circumstances are not susceptible to review by this Court. I cannot discern jurisdictional error as it is said to arise from the applicants’ amended application, nor from what the applicant put to the Court during the hearing, nor otherwise. This application is therefore dismissed. 

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  7 March 2008

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