SZLNT v Minister for Immigration

[2008] FMCA 473

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLNT v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 473

MIGRATION – Review of decision of Refugee Review Tribunal – adverse credibility finding – request for impermissible merits review – no failure to accord procedural fairness – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Applicant: SZLNT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3281 of 2007

Judgment of: Nicholls FM

Hearing date: 14 April 2008

Date of Last Submission: 14 April 2008

Delivered at: Sydney

Delivered on: 14 April 2008

REPRESENTATION

Counsel for the Applicant: Nil

Solicitors for the Applicant: Nil

Appearance for the Respondents: Ms B Anniwell

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 23 October 2007 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $3,200.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3281 of 2007

SZLNT

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 today an application made under the Migration Act 1958 (Cth) (“the Act”) on 23 October 2007 seeking review of the decision of the Refugee Review Tribunal signed on 18 September 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, in accordance with the orders made on the first Court date, filed a bundle of relevant documents in this matter known as the Court Book (“CB”), a document which was formally tendered in Court today and which, without objection from the applicant was marked as “Respondent’s Exhibit 1” (“RE 1”).  I note in particular that this bundle of documents has been served on the applicant as he arrived in Court with a copy of the bundle of relevant documents in his possession.  The following background can be discerned from this material.

3. The applicant is a citizen of Burma or Myanmar who arrived in Australia in 1999.  He applied for a protection visa in June 2007.  (The application for a protection visa is reproduced in the Court Book at CB 1 to CB 33, with annexures.)  I note in particular the applicant’s statutory declaration setting out his claims at CB 26 to CB 27.  I note also that this application was submitted to the first respondent’s Department under cover of a letter from registered migration agents.  On 9 July 2007, a delegate of the first respondent refused to grant a protection visa to the applicant and I note that a copy of the delegate’s decision is reproduced at CB 52 to CB 60.

4. On 10 July 2007, the applicant applied for review of the delegate’s decision.  That application is reproduced at CB 64 to CB 67.  I note that the applicant was again represented by a migration agent at that time.

5. The Tribunal wrote to the applicant on 19 July 2007 and notified him that, on what had been put before it, it was unable to make a favourable decision and invited the applicant to appear at a hearing before it scheduled for 30 August 2007.  I note that this letter is set out at CB 74 to CB 75.  The Tribunal received a response from the applicant through his adviser indicating his willingness to attend a hearing.  I note also that further written submissions were submitted by the applicant’s adviser on his behalf and these are reproduced at CB 79 to CB 81.  I note further from CB 82 that the applicant did appear at a hearing before the Tribunal on 30 August 2007 and the Tribunal’s account of what occurred at the hearing is set out in its decision record at CB 95 to CB 98.

6. The applicant’s claim to fear persecution in Burma was said to be essentially on the grounds of imputed or real political belief by reason of his close personal association with his brother-in-law whom the applicant claimed was a member of the “Wa Peace Party” and a “trusted aide of a trusted aid (sic: aide) to a Wa General [name]”.  The applicant also claimed similar involvement on his own behalf.  In particular the applicant claimed that he had become involved through his brother-in-law’s connections with the Wa Party in the precious gems and teak trade, a trade that had been permitted by the Burmese authorities because of a cease fire.  The applicant claimed that he continued to do this work until he came to Australia in 1999, and while on a visit in Australia the agreement between the Burmese Government and the Wa Party broke down and persons such as his brother-in-law were forced to flee Burma. 

7. The applicant claimed that while his brother-in-law has since returned to Burma he has not done so “openly” as he would be arrested or face other serious harm.  The applicant claimed that other members of his family “began to feel pressure” because of their association with the applicant’s brother-in-law, and that they indeed left Burma some time in 2002.  The applicant claimed to fear for his safety if he were to return to Burma, and before the Tribunal it was clarified that such fear of harm was firstly because of his and his brother-in-law’s involvement with the Wa Party, and secondly because of his brother-in-law’s ethnicity, being a member of the Wa group.

8. Before the Tribunal the applicant explained that at least in part the delay in his making an application for protection was because he had sought advice from someone whom he thought was a migration agent, a “Mr Zaw”, to whom he was introduced by a friend, that he paid a large sum of money to this person and was told that he would be provided with his documents, presumably that meant that he would be provided with a protection visa.  Following a period of two years, the applicant came to understand that he had been tricked by this person into giving him his passport and that nothing had been done in obtaining a protection visa for him.  The applicant also claimed that he approached a Chinese lawyer near Central station who gave him certain advice, and that ultimately the applicant remained in Australia and hoped that things would be “ok”.

9. I note in particular from the Tribunal’s account of what occurred at the hearing that the applicant was given an opportunity following that hearing to make further submissions and provide further explanations in writing to the Tribunal in relation to this issue involving “Mr Zaw” and the delay in lodging his application for a protection visa.  I note from what is set out at CB 95.9 that the applicant was given that opportunity but did not take up that opportunity as no response was provided to the Tribunal.

10. It is very clear on any plain reading of the Tribunal’s reasons for its decision that the reason that the Tribunal concluded adverse to the applicant was that it found the applicant and his claims not to be credible.  This was said to be derived because of a number of specified evidentiary concerns.  The Tribunal found the applicant’s various explanations in response to concerns that it had put to him at the hearing as being implausible.  That and the unexplained (in the Tribunal’s mind) delay between the time of arrival and the time of the making of the application for a protection visa led the Tribunal to find that a large part of the applicant’s explanations were a fabrication in an attempt to explain this delay.  In particular, the Tribunal noted and relied on what it said were new claims made at the hearing not raised in the protection visa application.

11. In all, the Tribunal, not being satisfied as to the applicant’s credibility, did not accept that the applicant or his brother-in-law had been involved with the Wa Party or any of the Party’s activities.  The Tribunal affirmed the delegate’s decision which was the subject of the review because it could not be satisfied that the applicant had suffered or would suffer harm in the future as he had claimed.

12. The ground as stated in the application put before the Court is as follows:

    “1.In the reason of carnage from Burma authority, I extremely am feared that I will be persecuted even killed by the government.”

13. The applicant seeks one order by this Court, and again I quote for the record:

    “1.An order that the decision of RRT made on 18/9/2007 be declared ‘no decision at all.’”

14. I do note from the Court’s file that the applicant did appear at the first Court date in this matter on 14 November 2007 and on that day, amongst other things, sought access to the Court’s legal advice scheme.  I also note that the applicant was referred to a lawyer, in fact a barrister, who is a member of the panel of that scheme.  Despite opportunity given to the applicant by way of orders made on the first Court date in this matter, no amended application, no further material, has been put before the Court by the applicant.  Therefore all the Court has before it from the applicant is the application and his affidavit made on 22 October 2007 which formally puts the Tribunal’s decision before the Court.  But the only statement made by the applicant in that affidavit is as follows:

    “What I said are all true.”

15. Before the Court today, the applicant appeared in person.  He was assisted by an interpreter in the Burmese language and Ms B Anniwell appeared for the first respondent.  I also have before me written submissions filed on behalf of the first respondent on which Ms Anniwell relied.

16. As I tried to explain to the applicant during the course of the hearing, this Court has no jurisdiction to determine whether or not he is a refugee and consequently a person to whom Australia owes protection obligations.  As I said to the applicant, the issue for the Court today is whether the Tribunal made its decision according to the law.  As I explained to the applicant that meant that for him to succeed today the Court would need to be able to discern jurisdictional error in what the Tribunal has done.

17. The sole stated ground in the application, and indeed, the short assertion by the applicant in his affidavit, plainly seeks merits review from this Court.  It is very well established that such merits review is not permitted to this Court (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). That the applicant may be fearful of persecution if he were to return to Burma is an issue for the Tribunal and its mere assertion before this Court plainly does not assist the applicant.

18. From the only account of what occurred at the hearing, that is the Tribunal’s own account, it is plain that the applicant made a number of assertions and gave explanations to the Tribunal when particular questions were raised with him.  In all the circumstances the applicant’s assertion now, indeed his evidence now, that what he said before the Tribunal was “all true”, does not assist him.  As has now been said in a very large number of cases, findings of fact made by a Tribunal, including findings on credibility, are for the Tribunal as the “decision-maker par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at [67], per McHugh J).

19. The applicant’s stated ground, even as it is added to by what he says in his affidavit, plainly does not assist the applicant and does not reveal jurisdictional error on the part of the Tribunal.  Nor can I otherwise, independently of what the applicant has put before the Court, discern jurisdictional error in the Tribunal’s decision.  The applicant came to Australia in 1999, some eight years later he applied for a protection visa.  Before the Tribunal he added further claims that he had not raised in his protection visa application and simply, the Tribunal did not believe the applicant’s claims to be genuine for reasons that were plainly open to it on what was before it and for which it gave ample reasons.  Nor can I see any error on the part of the Tribunal in terms of procedural fairness.  The applicant was put on notice by the invitation to the hearing that that was his opportunity to satisfy the Tribunal as to the strength of his claims to be a refugee. 

20. The determinative issue in this matter was the Tribunal’s view that the applicant and his claims lacked credibility, and further, that some of his explanations were fabrications (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [35] and [44]). Any plain reading of the Tribunal’s account of what occurred at the hearing reveals that this determinative issue, and the substratum of issues which informed it, were plainly brought to the applicant’s attention and raised with him at the hearing.

21. I note in particular that at CB 95.7 the Tribunal said it indicated to the applicant that it was difficult to understand that someone had his passport for two years and the applicant made no enquiries about what was happening.  On the matter of the long delay in the making of his protection visa application, the Tribunal squarely and plainly told the applicant at CB 95.8:

    “The Tribunal indicated to the applicant that the delay in lodging the application for a protection visa could raise doubts about the genuineness of his fear of persecution.”

    I note in particular that this was a specific matter in relation to which the applicant was given the opportunity to make further written submissions following the hearing, but an opportunity which he chose not to pursue.

22. In relation to one of the matters said to have been raised for the first time at the hearing, at CB 96.7 the Tribunal notes as follows:

    “The Tribunal indicated to the applicant that in his Statutory Declaration he does not say anything about becoming a member [of the Wa Party] in 1994 although he claims to have been a member.”

23. In relation to a claim that he supplied arms, at CB 96.8 the Tribunal says as follows:

    “The Tribunal indicated to the applicant that in the Statutory Declaration he does not claim that he had supplied arms which the Tribunal considered to be a very serious claim.  The Tribunal asked him why he has not mentioned that claim previously.  …. The Tribunal advised the applicant that whilst the hearing is an opportunity to explore and provide further explanations about claims, making substantial new claims could also be a concern as it could suggest fabrication.”

    I note that the applicant told the Tribunal that he was telling the truth.

24. At CB 97.3 the Tribunal dealt at the hearing with another claim made by the applicant and it reports:

    “The Tribunal indicated to the applicant that the claim that he had to report to the intelligence was not a claim that he had made in the Statutory Declaration provided in support of the application for a protection visa.”

25. At CB 97.6 the Tribunal said:

    “The Tribunal indicated to the applicant that being threatened by the intelligence is a significant claim which again he had not mentioned in the Statutory Declaration.”

    And in response to the applicant’s claim that he has missed points in his statutory declaration, the Tribunal indicated to the applicant that:

    “[O]n the contrary it appears that he had missed quite a few substantial claims.”

    The Tribunal again reiterated its concern about these new claims that were raised by the applicant.

26. Ultimately, the Tribunal also discussed with the applicant information available to it about returnees to Burma and said the following:

    “The Tribunal indicated to the applicant that in its view it would be implausible that the Burmese authorities would find out from the Australian authorities that he had applied for asylum.”

27. In all, in relation to any of the matters set out relevantly in Division 4 of Part 7 of the Act dealing with matters of procedural fairness, I cannot see that the Tribunal’s decision is affected by any jurisdictional error. I also note that before the Court today the applicant unfortunately was unable to assist the Court in otherwise discerning error on the part of the Tribunal. Even after explanation from the Court as to what was required for the applicant to succeed today all that the applicant could put to the Court was as follows: that he had been in detention for some time (plainly this is not a matter that reveals error on the part of the Tribunal), and that what he had “put up” was sufficient.

28. If this was a complaint about the claims that he had put before the Tribunal and that those claims were sufficient such that the Tribunal should have made a finding in his favour, then such a complaint does not reveal jurisdictional error on the part of the Tribunal for the reasons that I have already stated.  If on the other hand the applicant was referring to material put before the Court then his subsequent statement that he had nothing further to say again does not assist the applicant given that for the reasons that I have already stated the material that he has put before the Court does not show jurisdictional error on the part of the Tribunal.

29. In summary and simply, the applicant arrived in Australia in 1999, some eight years later he made an application for a protection visa.  He went before the Tribunal to give evidence in support of his claims after having been put on notice that what had initially been given to the fist respondent’s Department was not sufficient to cause the Tribunal to make a favourable decision for the applicant.  He then made further claims before the Tribunal and ultimately and simply the Tribunal did not believe the applicant.  Its doubts about his credibility and its doubts about the veracity of his claims, and its findings that many of his explanations were neither persuasive nor convincing, were all arrived at after a process in which the applicant was given opportunity to address the Tribunal’s concerns, and were all findings which were open to the Tribunal to make on what was before it and for which it gave reasons.  Neither on the basis of anything that the applicant has put before this Court, nor otherwise, can I discern jurisdictional error in the Tribunal’s decision.  This application is accordingly dismissed.

30. As to the matter of costs, a lack of funds, in my view, is not a sufficient reason such that would cause the Court not to make a costs order in this matter.  There is nothing else from what I can see before me that would cause the Court not to make such an order.  In my view, it is appropriate that a costs order be made.  As to the amount, I am obviously to be guided by what is reasonable in the circumstances and with reference to the work that has been done by the first respondent’s legal representatives, and in particular I note two appearances by a solicitor in Court, including the final hearing in this matter, the filing of a response, the preparation and filing of a number of bundles of the relevant documents, the drafting and filing of written submissions, all in my view form a basis such that the Court can say that the amount sought is a reasonable amount. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  A Douglas-Baker

Date:  16 April 2008