SZLQF v Minister for Immigration
[2008] FMCA 188
•22 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLQF v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 188 |
| MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – procedural fairness – fact finding not the function of judicial review. |
| Judiciary Act 1903, s.39 Migration Act 1958, ss.5, 36, 65, 91R, 91S, 424A, 425, 474 |
| Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 |
| Applicant: | SZLQF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3538 of 2007 |
| Judgment of: | Orchiston FM |
| Hearing date: | 30 January 2008 |
| Date of last submission: | 30 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2008 |
REPRESENTATION
| Applicant appeared in person |
| Counsel for the Respondent: | Mr J. Knackstredt |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The application filed on 15 November 2007 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3538 of 2007
| SZLQF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Application
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 24 June 2007 and notified to the applicant by letter dated 27 June 2007 which affirmed the decision of the delegate of the respondent Minister (“the delegate”) to refuse to grant a protection visa to the applicant.
Background
The applicant was born on 17 April 1953 and was aged 54 years at the time of his application for a protection visa.
The applicant claims to be a national of Sri Lanka, of Sinhalese ethnicity, who speaks Tamil.
The applicant arrived in Australia on 12 March 2007 on a Sri Lankan passport issued in his own name, holding a visitor’s visa, which was valid until 12 June 2007.
The applicant lodged an application for a protection visa on 25 April 2007 on the basis that he fears being persecuted if he were to return to Sri Lanka:
for reasons of his political opinion as an active member and a main financial supporter of the UNP [United National Party] particularly with his local MP, an opponent of the war, which was intended by the current government and for his connection with the North where the LTTE [Liberation Tigers of Tamil Eelam] is predominant. The essential and significant reason for the persecution he fears is his political opinion (main financial supporter of the UNP and an opponent of the war which is intended by the current government (Court Book (CB) 87).
The applicant claims harassment and difficulties with his fish business and its transportation, intermittently since 1983, depending on the ruling government of the day.
He claims to have been tortured for four days at the police station in December 2005 because he was a UNP active financial supporter; to have again been kept for two days at the police station in February 2006; and that his house was raided by police, his family threatened and he and three of his suppliers were kept for three days and tortured at the police station.
He claims that in September 2006 he was taken to the police headquarters in Colombo and tortured and asked questions about his relationship with the LTTE. By December 2006 he was afraid to stay at his house; to go out alone; and had “great fear for his life”; so that by January 2007 his wife and children “compelled him to go to another country to save his life”. His family remain fearful for their safety and cannot live at their place due to police still searching for him.
On 4 June 2007 the delegate refused to grant the applicant’s protection visa on the basis that the applicant was not a person to whom Australia owed protection obligations under the Refugees Convention (see Legislative framework).
On 26 June 2007 the applicant applied to the Tribunal for review of the delegate’s decision (CB 53).
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or particular opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Section 91R and s.91S of the Act refer to the persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceedings
On 10 July 2007, the Tribunal sent a letter to the applicant inviting him to appear before it to give oral evidence and present arguments at a hearing on 17 August 2007 (CB 59– 60).
The applicant’s claims and evidence (CB 85 – 88)
The Tribunal summarised the applicant’s claims in the protection visa application (at CB 85–88). It further summarised the applicant’s claims at the Tribunal hearing (CB 88–92), including that he fears for his life because of political implications from his membership, financial and other assistance to the UNP from 1980 – 2004. The applicant provided the following documentary material to the Tribunal in support of his claims:
·a UNP ID card for 2005 in the applicant’s name (CB 75)
·a letter from the Reverend Father Jude Nicholas (the Fr. Nicholas letter) (CB 74)
·a letter from Joseph Michael Perera, Chief Organiser of the UNP (the Perera letter) (CB 70).
The Tribunal further summarised (at CB 91–92) the written submissions received by it from the applicant’s adviser (CB 77) following the Tribunal hearing. It also summarised the country information to which it referred (CB 92–95).
The Tribunal’s findings and reasons (CB 95 – 100)
The Tribunal accepted that :
·the applicant did not suffer from any condition, including but not limited to trauma, which it considered it needed to take into account in reaching a finding contrary to the applicant’s post-hearing submission letter (CB 77).
·the applicant’s evidence “in relation to significant claims, was essentially vague, general and lacking in important details which meant that the Tribunal could not be satisfied that any of the claimed harm had happened to the applicant, based on his responses to the following matters of concern:
ohow the opposition party SLFP, had worked against him
owhen they had inflicted the claimed physical and mental harm on him and his business
owho branded him a Singhalese Tiger
owho had, and what were, the false accusations made against him and how had he been implicated in certain things
owhen exactly had he been taken to the police station, beaten and detained on the 4-5 times as he claimed
owhether it was plausible given the security circumstances of Sri Lanka as noted in the country information, that the applicant would have been released if he had been genuinely suspected of dealing with the LTTE
owhen and how he was beaten up by police and the CID and for which he subsequently received treatment
owhen police came looking for him
ohow he knew the CID had been monitoring his home
owhy the 2005 date appeared on his UNP ID card (and noted that the handwriting parts of the card could have been written in by anyone).
The Tribunal summed up its findings as follows:
The Tribunal appreciates that in isolation the above noted evidentiary concerns may not be perceived as being significant, however when they are considered cumulatively the Tribunal is satisfied that the evidentiary concerns are legitimate matters to be taken into account in reaching an adverse credibility finding. In light of those comments, the above noted concerns and in consideration of the evidence as a whole, the Tribunal finds that the applicant is not credible.
It further found that given the adverse credibility finding made by it, it was not satisfied that the documents provided in support of the applicant’s case, being the UNP ID card, the Perera letter, and the Fr. Nicholas letter were documents which contained truthful information.
It did not accept that the applicant has suffered or would suffer any of the claimed harm. It therefore found that the applicant did not have a well-founded fear of being persecuted for reasons of his political opinion as an active member and a main financial supporter of the UNP or his connection with the North where the LTTE is predominant, or that he would not be safe in his area or outside the area because the current government politicians have joined hands with local police to harm him.
In conclusion, the Tribunal having carefully considered the applicant’s profile and in consideration of the evidence as a whole, was not satisfied that there is a real chance that the applicant would be subjected to ill-treatment amounting to persecution if he were to return to Sri Lanka on the basis of any actual or imputed political activities/opinions or any other Convention grounds.
It was not satisfied that there is a real chance that the applicant would suffer serious harm as contemplated by the Act, or persecution as contemplated by the Convention in the reasonably foreseeable future if he were to return to Sri Lanka.
Accordingly, it confirmed the delegate’s decision that the applicant is not a person to whom Australia has protection obligations under the Convention.
The proceedings before this Court
The applicant filed the application in this Court on 15 November 2007 setting out 2 grounds for review of the Tribunal’s decision.
The applicant appeared in person before the Court on 30 January 2008 with the assistance of a Sinhalese interpreter. Mr Knackstredt of counsel appeared for the first respondent.
Grounds of application
The grounds of the application are:
1. Jurisdictional Error.
2. Breach of procedures.
Ground 1 of the application.
The applicant has not provided any particulars of how the Tribunal is said to have fallen into jurisdictional error and what procedures are said to have been breached by it. Further the applicant has not provided the transcript of the Tribunal proceedings upon which the Court may have had some assistance in this regard.
In the applicant’s written submissions, however, he asserts that the Tribunal breached s.424A of the Act by failing to provide him with “clear particulars” of the information (which he says the Tribunal stated in bullet point form at CB 95–98) which the Tribunal considers to be the reason or part of the reason for making its decision and what it accepts and does not accept (also in bullet point form at CB 98–100). He asserts that the Tribunal should have sent him the particulars in writing setting out its concerns and giving him the opportunity to respond to them.
In his oral submissions, the applicant submits that the Tribunal failed to take into account the Fr. Nicholas letter (CB 74); his UNP ID card (CB 75); and the Perera letter (CB 70), which the applicant submits prove that he was in the UNP and has been involved in political activities.
He further asserts that the Tribunal failed to provide reasons why it did not accept these documents and that if the Tribunal had concerns, it should have written to him so he could have responded before the Tribunal made its decision.
I am fully satisfied that the Tribunal took into account these three documents, namely the Fr. Nicholas letter, the Perera letter, and the UNP ID membership card. Indeed, the Tribunal decision record demonstrates that it devoted careful attention to each and expressly stated that it “carefully considered [these] documents provided by the applicant in support of his claims” (CB 97).
In regard to the Fr. Nicholas letter, the Tribunal stated that it discussed the letter with the applicant and indicated to him that it would further consider the weight to be placed on it (at CB 91).
In regard to the Perera letter, the Tribunal stated that it discussed the letter with the applicant, noted in this context that it was undated, and indicated that it would consider the weight to be placed on it (CB 91).
In regard to the UNP ID card, the Tribunal sets out the exchange of questions and answers between it and the applicant, in particular why it bore a 2005 date given his evidence that it was issued to him in 2004, and that anyone could have written in the handwritten details on it (at CB 89). The Tribunal then indicated to the applicant that “it would consider further the document, its authenticity or whether it contains truthful information and the weight the Tribunal would place on the document” (CB 89).
Far from the Tribunal failing to take these documents into account, I consider that it gave close consideration to each, and when considered in conjunction with the evidence as a whole, I am satisfied that it was open to it to reach the following conclusions in relation to the documents:
…the applicant’s evidence that he had obtained the [UNP ID] card in 2004, when the card bears a 2005 date, suggests fabrication, raising doubts about the veracity of his claims and general credibility…
[g]iven the Tribunal’s concerns about the applicant’s credibility, the Tribunal does not place weight on those documents. In essence and for the adverse credibility finding, the Tribunal is not satisfied that the documents contain truthful information (CB 97–98).
Contrary to the applicant’s assertion, I am therefore satisfied that the Tribunal gave clearly articulated and well-thought through reasons in rejecting the authenticity of the documents.
I am further satisfied that the Tribunal’s adverse finding as to the applicant’s credibility was reasonably open to it on all the evidence before it. The Tribunal’s conclusion in this regard was a finding of fact par excellence, not open to review by this Court:
If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged: Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67] (and see Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at [558]).
Equally, in the present case, the Tribunal dealt with the implausibility of certain of the applicant’s claims as referred to above.
Merely because the applicant disagrees with the Tribunal’s factual conclusions and its ultimate conclusion in this case does not amount to an error of law. Furthermore, there is no error of law, let alone jurisdictional error in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1998) 197 CLR 510 at 560 [137]
Overall, I am satisfied that the Tribunal made clear and well reasoned findings on each of the applicant’s claims in reaching its conclusion that the applicant was not a person to whom Australia has protection obligations.
I am further satisfied that the Tribunal complied with its statutory obligations under s.425(1) of the Act of inviting the applicant to appear before it to give evidence and present arguments “relating to the issues arising in relation to the decision under review”. The Tribunal clearly identified to the applicant the determinative issues arising in his case concerning his claimed political affiliation and detention and harassment by the authorities and provided him with a sufficient opportunity to respond to them as demonstrated by the applicant’s responses to the matters of concern summarised in the Tribunal’s findings and reasons. I consider therefore that the Tribunal accorded the applicant procedural fairness as required of it pursuant to s.425(1): SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [33]-[48].
In regard to the applicant’s assertion that the Tribunal has breached s.424A of the Act by not providing him with clear particulars in writing of its concerns and giving him the opportunity to respond to them, I am satisfied however that there is no “information” that enlivened the Tribunal’s obligation under s.424A in this case.
It is clear that the word “information”, upon a proper construction, does not extend to the Tribunal's subjective appraisals and thought processes, including its disbelief of the applicant's evidence. As observed by the High Court in the recent decision of SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at [18]:
…if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s.424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”
does not encompass the Tribunal’s subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s.424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.
I am thus satisfied that the Tribunal has complied with its statutory obligations under s.424A and s.425 of the Act and accorded the applicant procedural fairness within the legislative framework of the natural justice hearing rule.
Accordingly, Grounds 1 and 2 of the application are rejected.
Conclusion
The Court finds that the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act this Court has no jurisdiction to interfere.
The application before this Court is dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: Duncan Maconachie
Date: 29 February 2008
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