SZLHG v Minister for Immigration

[2008] FMCA 269

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLHG v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 269

MIGRATION – Review of decision of the Refugee Review Tribunal – findings of fact not amenable to review – choice and use of independent country information – no evidence of bias or bad faith – no denial of procedural fairness – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss.65, 36(2)

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
Minister for Aboriginal Affairs v Peko-Wallsend (1985) 66 ALR 299 at 309
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407
Abebe v The Commonwealth (1999) 168 ALR 1
Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157; [2001] HCA 17
SZHPD v Minister for Immigration and Citizenship [2007] FCA 157
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 6

Applicant: SZLHG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2785 of 2007

Judgment of: Nicholls FM

Hearing date: 6 March 2008

Date of Last Submission: 6 March 2008

Delivered at: Sydney

Delivered on: 6 March 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Counsel for the Respondents: Mr J Mitchell

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 11 September 2007, and amended on 21 December 2007, is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2785 of 2007

SZLHG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me an application made on 11 September 2007, and amended on 21 December 2007, under the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 26 July 2007, and notified to the applicant on 16 August 2007, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.

2. The first respondent has put before the Court a bundle of relevant documents, which I will refer to as the Court Book (“CB”) from which the following can be discerned.

3. The applicant is a citizen of India of Muslim religion who arrived in Australia in February 2007 and applied for a protection visa in March 2007.  The application is reproduced at CB 1 to CB 28.  This application was refused by a delegate of the first respondent and the material relevant to that decision is set out at CB 31 to CB 41. 

4. The applicant applied for review to the Tribunal and the application is reproduced at CB 42 to CB 45.  I note that on 1 July 2007 the applicant provided written submissions to the Tribunal and these are set out CB 51 and CB 52.  The applicant attended a hearing before the Tribunal on 19 July 2007, and I note set out at CB 53 is the Tribunal’s attendance record.  The Tribunal’s account of what occurred at that hearing is set out in its decision record at CB 68 to CB 71.

5. The applicant’s claims before the Tribunal were that he feared harm from the Tamil Tigers and that the police would not assist him in protecting him from that harm.  The applicant claimed that his father had been a long-term supporter of the Tamil Tigers (the organisation, the LTTE), and had also been a supporter of the ADMK.

6. The applicant claimed that he had been asked by the Tamil Tigers to participate in their activities to assist them and in particular, to supply them with ball bearings for their weapons and to assist in supplying them with other material such as explosives.  The applicant claimed that he did not assist them and that as a result he and his family were threatened and harmed.  The applicant also claimed that the LTTE accused him of giving information to the authorities which led to the arrest of LTTE “colleagues” and that as a result, and given that he felt he could not seek protection in India, he left India and sought protection in Australia.

7. Any plain reading of the Tribunal’s decision record reveals that the reason that the Tribunal found that the applicant was not a person to whom Australia owed protection obligations, was that it found the applicant was not credible in respect to key aspects of his claims for protection.  The determinative issue, therefore, for the Tribunal, was what it found to be the lack of credibility on the part of the applicant; and the Tribunal explained that it found the applicant’s oral evidence about his claimed experiences with the LTTE to be unconvincing, and in some respects, to be implausible.

8. The Tribunal further said it was unpersuaded by the applicant’s claims, particularly when it set these claims against the background of country information involving the LTTE.  The Tribunal found that it would be implausible that a relatively sophisticated and extensive organisation such as the LTTE would invest its time, energies and resources in pursuing the applicant, in abducting him and confiscating his passport, on the basis that he would not obtain ball bearings for them or cooperate with them in other unspecified ways.

9. The Tribunal formed the view that the applicant’s presentation of incidents in his oral evidence before it was conveyed, as it said, in a manner of assertion rather than actual lived experiences, and was unconvincing. The Tribunal therefore did not accept that the applicant had had the encounters with the LTTE operatives in India as he had claimed; it did not accept that the applicant was held responsible for the arrest of an LTTE member; it did not accept that the LTTE had an interest or a motive to murder the applicant or to harm him on his return to India; and it was therefore not satisfied that the applicant had a well-founded fear of persecution for a Convention reason on his return.

Application to the Court

1. By way of amended application filed on 21 December 2007, which the applicant confirmed before the Court today was the document containing the grounds that he wished to press before the Court, three grounds with particulars are put forward:

   “1.The Refugee Review Tribunal failed to establish a connection between my claim of persecution and the country information about the LTTE under the Migration Act.

   …

   2.The Refugee Review Tribunal made the decision in bad faith.

   …

   3.The decision of the Refugee Review Tribunal is contradictory itself.

   …”

   (Errors in original)

2. The applicant appeared in person before the Court.  He was assisted by an interpreter in the Tamil language. Mr J Mitchell of Counsel appeared for the first respondent. 

3. The Court has before it the applicant’s amended application which he presses, a written submission filed by the applicant on 22 February 2008, and the applicant’s affidavit of 11 September 2007, which essentially puts the Tribunal’s decision record before the Court.  I note for the record that the applicant’s assertions in that affidavit go to the issue of jurisdictional error on the part of the Tribunal, and I read them in that light.

4. For the Minister, I have the Court Book, written submissions prepared by Counsel for the first respondent, and I also take into account submissions made orally both by the applicant and Mr Mitchell before the Court.

5. The applicant pressed before the Court that he had come to Australia to live a good life, which I understood him to subsequently mean that he had come to Australia to protect his life. He pressed that what he had said to the Tribunal was the truth; and that he wanted to stay in Australia because he was not in a position to go back to India. Beyond that, the applicant sought to rely on his submissions and the amended application, which he said had been prepared with the assistance of a “friend”.

6. The first ground in the amended application asserts that the Tribunal failed to establish a connection between the applicant’s claimed persecution and country information about the LTTE, and this is particularised by reference to the Tribunal’s finding that it was unpersuaded by the applicant’s claims when these claims are set against the background of country information which indicated that the LTTE was a relatively sophisticated and extensive organisation.

7. I should just note that it appears that, for whatever reason, the Minister was not served with the applicant’s amended application.  Mr Mitchell however indicated to the Court that he was able to continue today, particularly as the applicant’s written submissions correlate squarely with the grounds in the amended application, and of course there is some overlap between those grounds and what was asserted in the original application which was addressed by Mr Mitchell in written submissions.

8. In relation to ground one, I agree both with Mr Mitchell’s submissions put to the Court today, and to the extent that his written submissions also relate to this complaint, with written submissions also. I understood these submissions to be that the Tribunal made it clear from its reasons that it was required to assess whether the applicant’s fears of persecution were well-founded and also Convention-based; that properly the Tribunal approached its consideration of this question by determining whether the applicant’s claimed fears were objectively well-founded; that the Tribunal conducted this approach by reference to the credibility of the applicant’s claim; and that it focused on the applicant’s own evidence, and that evidence when also seen in light of country information that was available to it.

9. Mr Mitchell referred the Court to country information available to the Tribunal that said that the Tamil Tigers have a sophisticated organisation with essentially a global reach, and that that included the global procurement of weaponry and ammunition. I agree with Mr Mitchell that the Tribunal considered that in light of this information it was implausible that the Tamil Tigers would pursue the applicant, who was a chef, and would pursue him for not obtaining ball bearings and providing other unspecified assistance to the Tamil Tigers.

10. The submission with which I agree is that, having found these claims not to be credible, the Tribunal therefore found that the claim to fear persecution was not well-founded.  I should just note also that the Tribunal’s finding in this regard did not just rely on an assessment of the applicant’s evidence in light of country information, but also derived from what the Tribunal otherwise saw as being the other implausible aspects of the applicant’s evidence, including the manner in which that evidence was presented to it at the hearing.

11. In any event, it is, as Mr Mitchell, in my view, correctly submits, that the Tribunal’s approach was consistent with the relevant approach as set out by the High Court in the matter of Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. As I explained to the applicant, the use that is made of country information and the resultant findings were findings of fact and were matters for the Tribunal and not matters that this Court could review. Nor could this Court, as Mr Mitchell submitted, review these findings for fairness, or indeed, correctness. In this regard, I note authorities on which Mr Mitchell relies, and agree with the application of the relevant principles derived from those authorities: NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 (“NAHI”) at [11], Minister for Aboriginal Affairs v Peko-Wallsend (1985) 66 ALR 299 at 309, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, and particularly in relation to the fairness aspect, Attorney-General (NSW) v Quin (1990) 170 CLR 1 (“Attorney-General v Quin) at 35-37.

12. In relation to the applicant’s attack on the fairness of what the Tribunal has done, I agree with the Minister’s reliance on Attorney-General v Quin that it is not for the Court to intervene in the manner that the applicant seeks. It is clear that the Tribunal’s findings were open to it, and indeed it gives reasons for its findings. The Tribunal’s decision was clearly based on the adverse view that it took of the applicant’s credibility, and as has often been quoted, these were findings of fact “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

13. As to what has been termed the “correctness” aspect of this complaint, it is that there is no error of law, let alone jurisdictional error, in a wrong finding of fact (Abebe v The Commonwealth (1999) 168 ALR 1). Of course, as I said in relation to the fairness aspect, on the correctness aspect, the weight to be given to country information and its application is for the Tribunal (NAHI).

14. Ground two in the amended application asserts that the Tribunal made its decision in bad faith, and this is particularised simply as being:

    “[T]he Tribunal has come to the conclusion that the applicant is not credible in respect of key aspects of his claims for protection.”

15. What needs to be understood, and I say this for the applicant’s benefit in particular, is that the Tribunal is not required to uncritically accept anything, or indeed everything, that an applicant says to it (Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437). The Tribunal’s obligation is to consider all of the applicant’s claims, and indeed, as has been held, the integers of an applicant’s claims, and on the evidence and material that is before it, to make findings of fact on which it can then base its ultimate conclusion as to whether it is satisfied or not satisfied that an applicant, in effect, meets the definition of “refugee” as set out in the UN Refugees Convention. I note here ss.65 and 36(2) of the Act.

16. I cannot see that the Tribunal’s findings were perverse or, even to the extent that this may be available as a ground of review, unreasonable.  The Court has in mind relevant authorities such as the Federal Court authorities SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361, Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102.

17. An allegation of bad faith is not made out simply because the Tribunal does not believe the applicant.  As Mr Mitchell submitted before the Court today, mere adverse findings do not demonstrate bad faith on the part of the relevant decision maker.  For the sake of completeness, and bearing in mind the relevant authorities (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425, Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157; [2001] HCA 17 (“Jia”)), nor would any allegation of bias, or apprehension of bias, be successful in the circumstances of this case.  I note also the line of authorities that establishes both the need for such matters to be clearly stated and for there to be evidence upon which such findings could be based.  (SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 (“SZHPD”) at [22]; see also Jia.)  Simply, if all that the applicant relies on is his challenge to the Tribunal’s credibility finding, this on its own does not amount to such evidence.

18. As the applicant’s claim of bad faith must be “distinctly made and clearly proven” (SZHPD), while the applicant may have distinctly put forward his assertion, there is nothing before the Court to show that it can be clearly proven.

19. Ground three in the amended application is a complaint that the Tribunal itself was “contradictory” in the manner in which it approached one aspect of its task.  The applicant complains that on the one hand the Tribunal accepted country information which indicated that Tamils historically in the State of Tamil Nadu have been sympathetic to, and supporters of, the LTTE, and on the other hand the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason.

20. I cannot see that the Tribunal acted in a contradictory fashion as alleged by the applicant.  In my view, dealing with the applicant’s stated complaint, it is not contradictory to say that while Tamils in India were generally sympathetic to the LTTE in Sri Lanka, and then at the same time, when considering an individual applicant’s claims, to find that such claims were implausible both because of the manner in which those claims were put forward, but also because of other country information available to the Tribunal which said that the LTTE was a relatively sophisticated and extensive organisation.

21. It was open to the Tribunal to find that it was implausible that a chef would be pursued and threatened for not supplying ball bearings and explosives in light of country information that said that the LTTE was a sophisticated organisation with an international arms procurement network.  In my view, far from being contradictory, this was consistent with the Tribunal’s role of weighing up all of the evidence before it.  As Mr Mitchell submitted before the Court today, the Tribunal’s finding as to the country information which indicated that historically Tamils in Tamil Nadu have been sympathetic and supporters of the LTTE does not then compel the Tribunal to make a finding that all people who have a history of support of the Tamil Tigers therefore have a well-founded fear of persecution, which is essentially what the applicant seeks to put as his argument before the Court.

22. It is, as Mr Mitchell, in my view again, correctly submitted, that the requirement for a well-founded fear of persecution is a requirement that the applicant has such a well-founded fear, and that the inquiry is directed properly by the Tribunal to the applicant that it has before it.  I note again what is set out at para.4.8 of written submissions on which the Minister relied, and for the purposes of this judgment note that I agree with those submissions.  This ground also does not succeed.

23. I should just note, because the applicant has appeared unrepresented before the Court today, that while he pressed his amended application before the Court, that I nonetheless did consider whether the applicant’s general complaint about a failure to uphold natural justice, a denial of procedural fairness, would reveal jurisdictional error. I note in this regard that this is a matter to which s.422B of the Act applies, making the matters set out in Division 4 of Part 7 of the Act the exhaustive statement of the natural justice hearing rule, of course, absent bias (Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [59]-[67], SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8], SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64; [2007] HCA 35 at [48]). I have already considered whether any such complaint could succeed and I have rejected that.

24. In regard, then, to the matters set out in Division 4 of Part 7, relevantly, s.424A, the Tribunal’s reasons and its findings were based on and derived from the applicant’s evidence provided to it at the hearing and country information available to the Tribunal, which was not about a specific person, such that both sets of information, for the purposes of s.424A, fall within the exceptions contained in s.424A(3)(a) and (b), from the obligation set out in s.424A(1) of the Act.

1. In relation to procedural fairness in s.425 of the Act I note that the applicant was invited to and attended a hearing before the Tribunal, and the applicant, despite opportunity, has not put before the Court any transcript of the hearing before the Tribunal. Based on the only relevant evidence before the Court, that is, the Tribunal’s own account of what occurred at the hearing, it is quite clear on that account, bearing in mind what the High Court said in the matter of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 6 (“SZBEL”), that the determinative issue in relation to the review that the Tribunal was required to conduct and which was ultimately dispositive of the application before it, was the issue of the applicant’s credibility.  This issue was squarely raised with the applicant at the hearing, as was each of what I could call the factual sub-strata of the applicant’s claims also raised, which the Tribunal examined and from which it derived its adverse view of the applicant’s credibility. 

2. I note in particular CB 70.4 that the Tribunal asked the applicant why the LTTE would be asking him to provide them with ball bearings, and it noted that the applicant stated that he was a chef.  Then at about CB 70.5 the Tribunal put to the applicant that the country information on LTTE indicated that it was a fairly sophisticated terrorist organisation which bought and sold weapons internationally.  The Tribunal put to the applicant that against this background it seemed to the Tribunal that the LTTE would not waste their energies in the way the applicant had claimed, pursuing him to find for them ball bearings.  Further, at CB 70.8, in relation to the applicant’s claim that he was perceived to have passed information to the authorities in relation to an LTTE operative, or colleague, who was arrested, the Tribunal put to the applicant that the applicant had departed India in 2006 and it would seem unlikely that they would suspect he was passing information in June 2007 leading up to the arrest.  Then squarely, at the bottom of CB 70, the Tribunal put to the applicant that the Tribunal had serious reservations about his claims.  Further at CB 71.4, the Tribunal reiterated its reservations that the LTTE would invest their energies in pursuing the applicant in the way he claims.

3. I should also just note, bearing in mind what the High Court said in SZBEL, that the issue of the credibility of the applicant’s claims was a live issue before the delegate.  I note at CB 41:

   “… I do not consider it credible that the Tigers would utilise their time and other resources watching the applicant’s movements ...  I do not find it credible that he could have escaped in the manner he describes … .”

4. Whatever the case before the delegate, the Tribunal squarely raised the determinative issue at the hearing with the applicant, such that I cannot see that the applicant was denied procedural fairness in relation to the Tribunal’s obligations pursuant to s.425 of the Act.

5. I should just note, for the sake of completeness again, a matter that was not pressed in the amended application, but to the extent that it was raised in the originating application, the applicant’s complaint that the Tribunal relied on irrelevant materials and “questioned with unnecessary matters”.  Firstly, in relation to irrelevant matters, I note and agree with what is set out in the Minister’s written submissions at para.4.5 that the onus is on the applicant to make out such a claim.  The claim that irrelevant considerations were taken into account, beyond assertion, the applicant has not said what these irrelevant considerations may have been and nor can I otherwise see that the Tribunal acted in such a fashion.

6. Again, I also note to the extent that the complaint is that the Tribunal “questioned with unnecessary matters”, there is no transcript of the Tribunal hearing before the Court, and to the extent that unnecessary matters may mean irrelevant matters, such a claim does not succeed on what is before the Court. 

7. The applicant’s claims before the Court today really, understandably, given that the applicant has relied on a friend to assist him with his claims of legal error on the part of the Tribunal, did not rise above a challenge to the Tribunal’s adverse credibility finding and an assertion by the applicant that what he had told the Tribunal about the incidents that had occurred was true, and that he could not get evidence about these incidents, but nonetheless, what he had told the Tribunal was all correct.

8. I should just note in this regard, to the extent that the applicant used the word and claimed that he had told the Tribunal about “torture”, that ultimately the applicant explained that (I note what the Tribunal has set out at CB 69.4) that related to his claim that LTTE personnel had come to his house and had seized his passport; that it was in reference to this incident that he used the word “torture”.  I note that for the sake of completeness, lest it be said that the Tribunal failed to consider an integer of the applicant’s claims that plainly the Tribunal did consider this incident.

9. In all, therefore, the applicant’s grounds stated in his amended application as supported by his written submissions do not reveal jurisdictional error on the part of the Tribunal nor can I otherwise discern jurisdictional error.  I therefore dismiss the application made to the Court, that is, the amended application that was ultimately pressed before the Court.

10. It is appropriate that an order for costs be made in this matter.  There is nothing before the Court nor, unfortunately, is there anything from the applicant, and I say unfortunate, despite the opportunity given the applicant, to argue against such an order being made.  I will therefore make that order.  As to the amount sought, I note that it is consistent with the amount set out in the relevant schedule to the Rules of this Court, but in any event find that in all the circumstances, bearing in mind the work that has been done by the Minister’s legal representatives, that the amount sought is a reasonable amount in all the circumstances.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  10 March 2008