SZLLL v Minister for Immigration
[2008] FMCA 809
•20 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLLL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 809 |
| MIGRATION – Review of a Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed. |
| The applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym “SZLLL”. |
| Migration Act 1958 (Cth), ss.91X, 424A, 425 |
| Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 MZXGH v Minister for Immigration & Citizenship [2007] FCA 344 MZXGP v Minister for Immigration & Multicultural Affairs & Anor [2006] FCA 1314 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592 SZIMM v Minister for Immigration & Anor [2008] FMCA 34 |
| Applicant: | SZLLL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3114 of 2007 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 28 May 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2008 |
REPRESENTATION
| Applicant: | The applicant appeared in person with the assistance of an Arabic interpreter |
| Counsel for the Respondents: | Mr J Potts |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 8 October 2007 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3114 of 2007
| SZLLL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The proceedings
The applicant is a single male born in 1982 in Nablus, the Palestinian controlled West Bank of the Occupied Territories (“the Occupied Territories”). He spent time in Saudi Arabia and Jordon as a child due to his father’s work commitments. He attended his primary school in Saudi Arabia and secondary school in Jordan before returning to the Occupied Territories to complete the final two years of his secondary education. He then completed a Bachelors degree in Physiotherapy in Jerusalem before coming to Australia to undertake a Masters degree in Musculoskeletal and Sports Physiotherapy at the University of South Australia.
He claims that while in Jordan at high school, he became interested in Palestinian politics and began supporting Fatah. On his return to the Occupied Territories he attended high school in Nablus and became a formal member of Fatah. Initially he was an ordinary member attending branch meetings held once a fortnight on and off campus. After about six months of membership, he was approached to make speeches to attract new members. He is also involved in the preparation of reports about the activities of Fatah and Hamas on campus.
The applicant’s first two years of university was in Romallah and the final two years in Jerusalem. He was a member of the university Fatah branch. In his second year, he was given more important duties and responsibilities within the organisation. This included investigating Hamas and identifying key leaders and organisers of illegal activities. He would file reports for action to be taken against the illegal activities of Hamas.
Also at university, the applicant had a job with Fatah providing “Protective Security” and “Palestinian Intelligence”. He received remuneration for this role. After his graduation in 2004, he worked as a physiotherapist for the K. Abu Raya rehabilitation centre in Ramallah, with four homes of mercy in Jerusalem and the Palestine Red Crescent Society in Ramallah.
The applicant travelled to Australia in October 2005 to undertake his postgraduate studies. It was his intention to return to the Occupied Territories after graduation as a senior physiotherapist. However in January 2006, Hamas won the elections and formed government in the Occupied Territories. The provision of “Protective Security” and “Palestinian Intelligence” was abandoned because Fatah was no longer in power.
The applicant claims that he was informed that Hamas was seeking former members of the “Protective Security” and “Palestinian Intelligence” and a number of former members were attacked, kidnapped and killed. His family also told him that Hamas approached them in an attempt to locate the applicant. The applicant claims he is afraid to return to the Occupied Territories because of his involvement with Fatah, in particular his role in “Protective Security” and “Palestinian Intelligence”. He claims that Hamas will seek revenge now that they are in power and he is afraid that he will be physically harmed, molested, imprisoned or killed.
A Court Book (“CB”) prepared and filed by the first respondent is marked Exhibit “A” and is the only evidence before the Court.
The applicant appeared before Kavallaris R at the first Court date where he indicated that he wished to participate in the scheme that gives unrepresented applicants in refugee matters independent legal advice on the prospects of success of their appeal. The applicant was allocated a panel advisor and the Court’s records show that he attended a conference with that advisor and received advice.
The applicant was also granted leave to file an amended application giving complete particulars of each ground of review relied upon by 4 February 2008. The applicant indicated at the commencement of the final hearing that he had not complied with this order and relied upon the grounds of his original application. The original application filed on 8 October 2007 contains the following grounds of review:
1. The member did not consider looking at my second evidence.
2. The member did not look at all the details in my case.
3. I do believe that I am in danger if I go back, I have supplied more than one evidence, but the member did not have enough read of my case.
The applicant was also ordered to file and serve written legal submissions and a list of authorities 14 days prior to the hearing. The applicant confirmed that he had not complied with this order.
At the commencement of the hearing, the applicant said that he understands spoken and written English and wished to proceed with the hearing in English without the Arabic interpreter. I said that if he did experience any difficulty he could request assistance from the interpreter at any time.
The applicant was also asked to verify whether the words “my second evidence” in the first ground of review refers to the document that appears in the Court Book at 132 and the English translation at Court Book 133. The applicant confirmed that that was the document. Ground three includes the phrase “didn’t have enough read of my case”. The applicant confirmed that the phrase meant that the Tribunal did not evaluate and take into consideration all the material available to it.
Consideration
In oral submissions, the applicant said that he wished to explain the similarity between the two letters from the Palestinian National Liberation Organization (Fatah) verifying his employment. The first letter sent by his migration agent to the Department on 11 March 2007 stated that the Fatah letter was a scanned copy of the original sent to the applicant by email. The original had been sent in the mail and, once received, could be provided to the Department if required.
The English translation of the letter states:
TO WHOM IT MAY CONCERN
The Palestine National Liberation Organisation – Fatah (PLO) certify that brother [SZLLL] is one of the movement members. He resides in Naples area. He works with the intelligence and preventative security forces in the city of Ramallah as from 1999 until 2005 with the rank of First Lietenant.
This certificate is issued under his request. (CB 46-48)
The delegate made the following comments in respect of the first letter:
I have some concern with this document including that his residence is given as the “Naples area” and that he held the rank of first lieutenant. I have been unable to locate any reference to a Naples area in the West Bank and the applicant has claimed he was an investigative officer, he made no reference to holding a military style rank in his claims. I note that the applicant was very clear in his claims that he never carried weapons and that he never received any training in weapons. I consider this claim to be implausible given his unambiguous claims that many of the people he was investigating were known to be violent and to carry weapons. I find it implausible that the applicant would have been recruited and trained in this dangerous field of activity and yet never have received training in the use of weapons nor to have been issued with a weapon for his personal security. (CB 61)
The contents of the first letter were also raised in the “Invitation to Comment on Information” letter forwarded to the applicant’s agent on 13 July 2007:
This information is relevant as it may indicate that the letter provided by you to evidence your involvement with Fatah is inauthentic. If the letter were found not to be authentic the Tribunal may not believe that your claims of involvement with Fatah are truthful and that you have presented inauthentic documents to support these claims. (CB 95)
The applicant’s agent responded to the s.424A letter on 27 June 2007 with an explanation for the letter (CB 99-111).
On 25 July 2007 the applicant’s agent forwarded a new (second) letter from Fatah which has been translated as follows:
TO WHOM IT MAY CONCERN
The Palestinian National Liberation Movement – Fatah – Certify that [SZLLL] is a member of the movement between the period 1999 until 2005. He was a working cadre and active organizer of the movement.
This Certificate was issued for him under his request. (CB 131-133)
The Tribunal’s “Findings and Reasons” discuss the contents of both letters in detail and the Tribunal concluded:
The applicant has more recently provided the second letter, purportedly from the Ramallah and Al-Bireh section of the movement. Given the fact that the applicant was able to obtain the first non-genuine letter, the Tribunal does not believe that the second document, expressed in similar short terms, can be believed either. In the Tribunal’s view, the second letter represents our further attempt to obtain evidence supportive of his claims without regard to the truthfulness of those claims. The Tribunal does not accept that this is a genuine document either. (CB 180)
The applicant explained that every letter from Palestine confirming a job or an experience is in the same format, which was something the Tribunal member did not understand. As the two letters were written in the same way, the Tribunal formed the view that they were both fabrications. The applicant indicated that this interpretation was incorrect. And that most of the categories within the definition of “refugee” applied to him.
Mr Potts submits that the passage from the Tribunal decision reproduced above at [19] indicates that the Tribunal took this into account. However, it did not accept the authenticity of the letter, in the sense that the applicant held the positions he claimed, and that was a determination that the Tribunal was required to make on the facts. It was for the Tribunal to make a decision whether or not the applicant was a refugee.
It is the role of this Court to determine whether the Tribunal decision contains a legal error. Under the provisions of the Migration Act 1958 (Cth) (“the Act”), an applicant is entitled to understand what the critical issues are in respect of his application so that he can give evidence and present relevant arguments. The first ground refers to the second letter, specifically to its authenticity. For the applicant to succeed in this ground, he would have to establish that the authenticity of the letter should have been brought to his attention and he should have been given an opportunity to present arguments and provide further evidence. However, the authenticity of the letter did not fall into this category because by the time that the letter was forwarded to the Tribunal, the applicant was aware that his association with Fatah was in issue.
The critical issue for the Tribunal was whether or not the applicant had the association with Fatah as claimed. The claim was dependent to a large extent on the evidence contained in the letter. The underlying factual question before the Tribunal was whether or not the applicant held the positions with Fatah as claimed. I am not satisfied that the applicant can establish that the authenticity of the letter was a new issue and that there was a need to tell him specifically that it was in issue. The first letter was rejected by the delegate in its written decision. Subsequent to this notification, the applicant was assisted by a qualified migration agent in his review to the Tribunal and in his response to the s.424A letter. This prompted the applicant to seek the second letter from Fatah confirming the same information in an apparent attempt to overcome the deficiency identified by the delegate.
Mr Potts, for the first respondent, referred to SZIMM v Minister for Immigration & Anor [2008] FMCA 34 where Barnes FM considered whether the Tribunal in that case failed to comply with s.425(1) of the Act by failing to disclose issues that arose on the review. Her Honour also considered whether the Tribunal failed to comply with s.424A(1). SZIMM contains an analysis of the law post SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 231 ALR 592.
Her Honour accepted that there needs to be an enquiry into what the critical or important issues are in deciding to reject the applicant’s claim. Only an issue of that character would meet the description of an “issue arising in relation to the decision under review”.
In support of this analysis, Her Honour states at [65]-[69]:
[65] For present purposes I accept that an enquiry or exercise in characterisation must be undertaken to identify what are the determinative, dispositive, critical or important issues in the sense of issues on which the decision to reject the applicant’s claim is based and that it is only such issues that meet the description of an issue “arising in relation to the decision under review” within the meaning of s 425.
[66] The nature of the characterisation required and the extent of the s 425 obligation is illustrated by the approach taken by Bennett J in SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486. In that case one of the grounds relied on by the appellant raised the question of whether there had been a breach of s 425 in that the Tribunal had failed to raise a specific issue at the Tribunal hearing. The appellant had claimed to be involved in a Bible smuggling operation and to be targeted by authorities. The Tribunal did not raise with her the specific questions of why she would take the risk of smuggling Bibles when she had a business and an 11 year old dependent child. It relied on these matters in its decision.
[67] Bennett J set out an extract from the Tribunal hearing in which the Tribunal was said to have clearly put the appellant on notice that it was having real difficulty in accepting she would take the risk of being involved in a Bible smuggling operation and being the target of the authorities, although it did not refer to her business and child. The statements and questions by the Tribunal were said to have “sufficiently indicated” to the appellant that everything she said on this subject was in issue (see SZBEL at [47]). Her Honour stated at [25]:
The issue for the Tribunal was whether to believe the appellant. That raised the issue of whether she would have smuggled Bibles in view of the potential risk. The question is whether the fact that she had a business and a dependent child were issues in themselves or factual matters that related to the issue of risk. If they are factual matters that go to the issue arising in relation to the decision under review (ie, risk generally), the Tribunal was not obliged to put each of those factual matters to the appellant. The Tribunal is obliged to inform her of the issue but not of each fact that relates to it”. (Emphasis added)
[68] While Bennett J accepted that the issue of risk was an important factor in the rejection by the Tribunal of the appellant’s claim, her Honour found (at [28]) “that the business and the child were not the issues on which the decision to reject the appellant’s claim were based. They were not determinative but additional factual matters that elaborated the matters to be balanced against the risk. The key point in the Tribunal’s assessment was the fact that there was a risk to the appellant and, in those circumstances, it did not accept that there was sufficient reason for her to take such a risk. The appellant was directed to that issue at the hearing, asked about it and told that the Tribunal found it difficult to accept her evidence. The Tribunal did not fail to comply with s 425 of the Act in this regard”.
[69] Thus it is necessary for the Tribunal to raise with an applicant determinative issues in the sense of issues on which the decision to reject the claim were based, but it is not required to descend into all the underlying facts when meeting its obligation under s 425.
I agree with Mr Potts’ submission that the Act does not contemplate a second s.425 hearing so that a new issue which arises in respect of the second letter would not necessitate a further hearing. I am firmly of the view that the second letter and its authenticity do not introduce a new issue into the Tribunal’s deliberation and the question of a second hearing does not arise.
I am also satisfied that the second letter does not enliven s.424A because the letter came directly from the applicant and consequently is included in the exception contained in s.424A(3)(b). In the circumstances I am satisfied that ground one cannot be sustained and should be dismissed.
Ground two, which claims that “the member did not look at all the details of my case”, falls into the same category as ground three and is appropriately handled with that ground. As I noted earlier, when I sought clarification from the applicant in respect of the grounds of review, he confirmed that he was claiming that the Tribunal had not properly evaluated and taken into consideration all the material he had placed before it.
In respect of grounds two and three, the applicant complains that the Tribunal failed to take into account relevant material. This was neither clearly stated nor particularised in the pleaded grounds. I agree with Mr Potts that a failure to take into account relevant material does not have to do with the weight given to it or the degree to which it has been analysed. Rather the requirement is that the material has been considered. In support of this view, the Court was referred to MZXGP v Minister for Immigration & Multicultural Affairs & Anor [2006] FCA 1314 at [13]-[15] per Middleton J:
[13] It is clear that the ground of failure to take into account a relevant consideration is made out only if the decision-maker fails to take into account a consideration that he or she is bound to take into account in making the decision (Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 at 39 per Mason J).
[14] A failure to deal with a particular piece of evidence is neither a failure to take into account a relevant consideration nor a failure to deal with a claim.
[15] The Tribunal found that the appellant was a Muslim who spoke Tamil, and relied on country information, which the Tribunal found included material that there are no Tamil Muslims in Sri Lanka. However, one piece of country information sourced from the Documentation, Information and Research Branch (‘DIRB’) of the Immigration and Refugee Board (Ottowa) referred to by the Tribunal does indicate that there are Tamil Muslims in Sri Lanka. It seems to me, however, that this does not demonstrate an error of law, and clearly no jurisdictional error, merely because the Tribunal, in this respect, may have made a wrong finding of fact (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
In MZXGH v Minister for Immigration & Citizenship [2007] FCA 344 at [24], Jessop J states:
[24] Another difficulty with the appellant’s point is that the Tribunal should be held to have failed to take into account a relevant consideration only if it could be shown that the Tribunal was required by law to take it into account: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 and 55. In the present case, the relevant question was whether the fear of persecution, which the Tribunal assumed the appellant to have, was well-founded. How the Tribunal approached its treatment of the evidence which related to that question was essentially a matter for the Tribunal. Part of the evidence on which the appellant relied was that his mother had been subjected to an assault in March 2005. The Tribunal recognised that circumstance, but noted that the authorities had, apparently, recorded the fact of the assault as criminal behaviour. The appellant rejoined with the propositions that the police were under-resourced, and that there was corruption in the relevant ministry. The Tribunal noted that it had received the correspondence in which the appellant made that rejoinder and, as I have said, there is no apparent basis upon which I should not assume that the Tribunal took that correspondence into account for such value as it had. Manifestly, the absence of any overt reference to the questions of under-resourcing or corruption in the Tribunal’s reasons does not sustain the proposition, as a matter of administrative law, that the Tribunal failed to take into account a relevant consideration.
In Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274, Heerey, Goldberg and Weinberg JJ rejected the formula which is commonly expressed as a proper, genuine and realistic consideration and indicated that it did not provide a ground of review. However, Their Honours did accept in that case that it may be said that the Tribunal failed to actually review the decision:
[78] Nonetheless, it seems to us that there is some scope, albeit limited, for the argument that the Tribunal may, in a particular case, have failed to "review" the decision of the Minister. In other words, although we consider the use of the formula "proper, genuine and realistic consideration" to be an unsuitable method of expressing the circumstances in which that contention can be maintained, we accept that there may be some cases where it can properly be said that the Tribunal has not in truth "considered" the application for a visa at all.
[79] It is often dangerous to seek to elucidate a principle by the use of examples, particularly when they are far removed from the facts before the Court. However, were the Tribunal to misconceive the nature of its statutory obligation, as for example by mistakenly believing that it was engaged in appellate review of the Minister's decision (rather than a rehearing de novo), it would be difficult to avoid the conclusion that it had failed to "review" the decision, in accordance with the requirements of the Act. Similarly, were the Tribunal to address the wrong question, rather than the question properly before it, there would be a constructive failure to exercise jurisdiction. Again, speaking hypothetically, were the Tribunal merely to pay lip service to its task, as for example by determining an application without reading the material filed before it, it would be difficult to conclude that it had "considered" the application.
I believe that the matter before this Court can be distinguished from Anthonypillai that the Tribunal failed to undertake the review properly. A fair reading of the Tribunal decision suggests it addressed in considerable detail all the material provided by the applicant, considered them with him at the hearing, alerted them to him in a s.424A letter and reviewed his response.
I am satisfied that the decision record indicates that the Tribunal went to considerable effort to review each item raised by the applicant. The applicant did not identify in either the particulars or submissions any particular aspect of the material that he claimed was not considered. In the circumstances I am satisfied that this ground of review cannot be sustained and should be dismissed.
Conclusion
The applicant in these proceedings is a self-represented litigant who indicated that he understood spoken and written English and would proceed with the hearing in English. An Arabic interpreter was present should he wish to use the interpreter for any aspect of the proceedings. The applicant was also provided with assistance from a Court appointed panel advisor. The applicant was given leave to file an amended application if he elected to do so but this opportunity was declined.
Mr Potts, appearing for the first respondent, assisted with written and oral submissions. I am satisfied that each ground of review in the application has been addressed. I am also satisfied that Mr Potts addressed issues which were relevant but not identified by the applicant. I am satisfied that none of the grounds can be sustained. Nor is it apparent from the face of the document that any jurisdictional error is evident in the Tribunal decision. In the circumstances the application should be dismissed with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate:
Date: 20 June 2008
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