SZLSE v Minister for Immigration & Anor
[2008] FMCA 1006
•24 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLSE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1006 |
| MIGRATION – Visa – Protection (Class XA) visa – Refugee Review Tribunal – application for review of decision of Refugee Review Tribunal affirming decision not to grant protection visa – citizen of Sri Lanka claiming fear of persecution on the basis of political opinion – where applicant submitted photographs to the Tribunal that had been falsified – allegation of bias – whether Tribunal made a procedural error – credibility – no jurisdictional error. |
| Migration Act 1958 (Cth) ss.424A, 425, 474 |
| WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188 referred to. SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 followed. SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 followed. Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 followed. Re RRT; Ex parte H (2001) 179 ALR 425 cited. Abebe v Commonwealth (1999) 197 CLR 510 followed. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed. Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 followed. SZLHA v Minister for Immigration & Citizenship [2008] FCA 782 followed. |
| Applicant: | SZLSE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3708 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 19 June 2008 |
| Date of Last Submission: | 19 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2008 |
REPRESENTATION
| Applicant: | Appeared in Person |
| Solicitors for the Applicant: | Not represented |
| Solicitor for the Respondent: | Ms Hanstein |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs fixed in the sum of $4,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3708 of 2007
| SZLSE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant, a citizen of Sri Lanka, asks the Court to set aside a decision of the Refugee Review Tribunal made on 15th November 2007. The Tribunal affirmed a decision of the delegate of the Minister not to grant the Applicant a Protection (Class XA) visa.
In his amended application, filed on 23rd April 2008, the Applicant seeks an order declaring the decision of the Refugee Review Tribunal to be null and void.
He claims that the Tribunal committed procedural errors in deciding his case in these ways:
a)rejecting or ignoring the Applicant’s entire evidence out of bias because the Applicant had submitted some falsified photographs to the Tribunal;
b)the Tribunal wrongly held that the Applicant had delayed his departure from Sri Lanka for 15 months after his visa was issued when it was in fact only three months;
c)The Tribunal did not take proper account of the facts that led to the Applicant fleeing from Sri Lanka;
d)Because of its bias against him, and without having a perceptual understanding of the situation in Sri Lanka and the cultural mores, the Tribunal found fault with the Applicant’s evidence; and
e)The Tribunal made incorrect findings about the Applicant’s credibility based on a misunderstanding of the medical certificate that he submitted.
The First Respondent, the Minister for Immigration and Citizenship, has filed a Response claiming that the application has not raised an arguable case for relief.
Background
The Applicant arrived in Australia on 16th February 2007. He applied for a Protection (Class XA) visa on 29th March 2007, claiming to have been a businessman who was a powerful member of the United National Party (UNP). He claimed to have been threatened by members of the LTTE organisation and to have been assaulted by political opponents. He claimed to have been robbed on several occasions. The Sri Lankan government suspected that he was a supporter of the LTTE and the LTTE suspected that he was a government agent or informer.
A delegate of the Minister refused his application for a visa on 13th July 2007. In the Protection Visa Decision Record, the delegate found that seven photographs he had submitted in support of his case were composite images that had been manipulated by superimposing the applicant’s face onto the background scene. The delegate put to the applicant at an interview that the photographs had been altered, but he denied that they had. This led the delegate to make adverse findings about the applicant’s credibility:
As I believe that the photographs are a fabrication (which is denied by the applicant) I have serious doubts as to the veracity and credibility of his claims overall[1].
[1] Court Book at 143
The delegate was not satisfied that the Applicant had a well founded fear of persecution on the Convention ground of political opinion or for any other Convention reason and refused the application for a protection visa.
Application for Review by the Refugee Review Tribunal
The Applicant applied to the Refugee Review Tribunal on 6th August 2007, seeking a review of the delegate’s decision. The Applicant did not lodge any documentary evidence with his application for review.
The Tribunal wrote to the Applicant on 14th August 2007, inviting him to attend a hearing on 26th September 2007. The Applicant made a written submission to the Tribunal on 10th September 2007, in which he said that the photographs had been altered by the photographer without his knowledge.
The Applicant attended the hearing on 26th September and submitted a number of documents and newspaper articles in support of his claim. He gave evidence with the assistance of an interpreter in the Sinhalese language.
After the hearing, the Tribunal wrote to the Applicant on 28th September 2007. The letter was headed “Invitation to Comment on Invitation in Writing” and invited the Applicant to comment on information that the Tribunal considered would, subject to any comments the Applicant made, be the reason, or a part of the reason, for affirming the decision that is under review. The letter was clearly written in order to comply with s.424A of the Migration Act 1958.
The information upon which the Tribunal sought the Applicant’s comments included the manipulated photographs, the Applicant’s denial to the Minister’s delegate that the letters were fabricated, the Applicant’s claim that he participated in the events in the photographs, items of evidence that the Applicant gave at the Tribunal hearing, and several documents that the Applicant had submitted. The Tribunal’s letter invited the Applicant to comment on the information in writing by 24th October 2007.
The Applicant sought an extension of time on 23rd October 2007, which the Tribunal refused. However, it indicated in a letter faxed to the Applicant on 24th October that it would not take any steps to finalise the case before 31st October and would consider any material submitted on or before that date.
The Applicant sent a two-page letter to the Tribunal on 26th October in which he commented on the information contained in the Tribunal’s letter of 28th September 2007[2].
[2] Court Book at 254-255
The Refugee Review Tribunal Decision
The Tribunal handed down its decision on 15th November 2007, affirming the decision of the delegate not to grant the Applicant a Protection (Class XA) visa. A copy of the Tribunal Decision Record can be found at pages 260 to 285 of the Court Book.
The Tribunal set out the Applicant’s claims and the evidence it considered from the following sources:
a)The application for a Protection Visa and the statement attached to the application;
b)The documents submitted to the Department by the Applicant;
c)The Applicant’s letter to the Tribunal of 10th September 2007;
d)the Applicant’s evidence at the Tribunal hearing;
e)the documents the Applicant submitted to the Tribunal at the hearing;
f)the Tribunal’s letter to the Applicant of 28th September 2007, seeking his comments on information under s.424A of the Migration Act; and
g)the Applicant’s written comments of 26th October 2007, received by the Tribunal on 29th October, in reply to the matters put to him in the Tribunal’s s.424A letter.
The Tribunal’s Findings and Reasons
The Tribunal accepted that the Applicant is a citizen of Sri Lanka, based on his passport. However, the Tribunal formed an adverse view of the applicant’s credibility, saying:
The applicant did not impress the Tribunal as a reliable, credible and truthful witness.[3]
[3] Court Book 280
The Tribunal then set out its reasons for this finding. They were, summarised as follows:
i)The seven photographs submitted by the Applicant in support of his application for a protection visa were found by a document examiner to be “composite images produced by the superimposition of a number of independent images”[4]. The Applicant persistently denied that the photographs were altered until his letter to the Tribunal of 10th September 2007, in which he explained that he had subsequently found out that the photographs had been altered by the photographer from whom his wife had obtained them[5]. The Tribunal found the Applicant’s evidence to about the photographs to be “outlandish and completely unsatisfactory” and said:
[4] Court Book 281
[5] Court Book 156-157
The Tribunal is of the view that the applicant’s written and (sic) explanations were a desperate and deceptive attempt to overcome the delegate’s concerns as expressed in his decision. The applicant’s preparedness to submit fabricated photographs to strengthen his case and his subsequent disingenuous attempts at inventing reasons to explain away the matter demonstrates his willingness to manufacture and manipulate evidence to achieve a favourable immigration outcome[6].
ii)The Tribunal found that the Applicant’s knowledge about the United National Party (UNP) was inconsistent with the length of his claimed membership and level of association with the party.[7]
iii)The Applicant gave an account at the hearing that he was assaulted and his shoulder was dislocated; he later stated that his elbow was dislocated. However, in his application for a protection visa the applicant had claimed that his left arm had been fractured. The Tribunal did not accept his explanation of the discrepancy that he gave in answer to the Tribunal’s s.424A letter of 28th September 2007.[8]
iv)The Tribunal found that the Applicant provided inconsistent evidence regarding his address in Sri Lanka.[9]
v)The Applicant’s account at the Tribunal hearing of being surrounded by three-wheelers and threatened at knife point was inconsistent with his account given in the complaint he lodged at the police station following the incident.[10]
vi)The Tribunal stated that the Applicant’s claims were not supported by independent evidence before it.[11]
vii)The Tribunal found that there was a delay between the date the Applicant’s visa to enter Australia, 23rd November 2006, and his departure from Sri Lanka on 15th February 2007. The Tribunal did not consider the Applicant’s explanations for his delayed departure from Sri Lanka to be satisfactory.[12]
[6] Court Book 281
[7] Court Book 282
[8] Ibid
[9] Court Book 283
[10] Ibid
[11] Ibid
[12] Court Book 283-284
The Tribunal did not find the Applicant to be a credible and truthful witness and found:
The totality of his evidence shows a propensity to fabricate claims and tailor and shift his evidence in a manner which achieves his own purpose.[13]
[13] Court Book 284
The Tribunal stated that it had regard to the documents submitted by the Applicant but said:
However, given the fundamental lack of credibility within the applicant’s evidence, the Tribunal cannot give any weight to the documents or the information contained in these documents in relation to the applicant’s claims (see WAEJ v MIMIA [2003] FCAFC 188, paragraph 52). Overall, having regard to the applicant’s lack of credibility, the Tribunal is not satisfied that the information relating to the applicant’s material claims in the documents are true.[14]
[14] Ibid
The Tribunal stated that it considered the Applicant’s claims in relation to the LTTE but found that his chance of facing harm at the hands of the LTTE for his perceived collaboration with the government, or his chance of facing harm at the hands of the government for his perceived collaboration with the LTTE was remote.
The Tribunal was not satisfied that the Applicant had a well-founded fear of persecution in Sri Lanka and affirmed the decision not to grant him a Protection (Class XA) visa.
Application for Judicial Review
The Applicant commenced proceedings in this Court on 30th November 2007. He filed an amended application on 23rd April 2008, in which he set out the five grounds 1(a) – (e) referred to above.
The Applicant has not filed a written outline of submissions but his amended application contains material that can be taken as submissions about his case. He attended Court and made oral submissions with the assistance of an interpreter in the Sinhalese language.
The Applicant said that he had had a very successful business in Sri Lanka over a period of 35 years. He had lots of money and lots of property. He said that because of the political situation he cannot return to Sri Lanka.
The Applicant claimed that the Refugee Review Tribunal only took into account his claim for refugee status for political reasons and did not take the “national problem” in Sri Lanka into account. He said he had no other reason to stay in Australia by himself and wished to stay in Australia for another 2 years, when he hoped that there would be an election and the political party that he supported may return to power.
The Applicant reiterated his claim that he faced a threat from the LTTE if he were to return to Sri Lanka.
Ms Hanstein, who appeared for the Minister, submitted that the Applicant had made complaints about the factual findings of the Tribunal, which amounted to an attempt at merits review, with two exceptions:
a)A complaint that the Tribunal did not accept his documents; and
b)A complaint that the Tribunal did not address his claimed fear of the LTTE.
Ms Hanstein submitted that the Tribunal had considered the documents that the Applicant submitted but, given the fundamental lack of credibility of the Applicant’s evidence, did not give those documents any weight. She also submitted that the Tribunal did address the Applicant’s claim about a threat from the LTTE.
Conclusions
The Applicant relies on five grounds of review, all of which claim procedural error committed by the Tribunal.
In Ground 1(a) he claims that the Tribunal fell into error by completely upholding the decision of the Delegate to ignore a substantive segment of his submission because a few of the documents he submitted, the photographs, were found to be false. He repeated his explanation that the photographs had been falsified by the photographer, who provided them to his wife, who, in turn, passed them on to the Applicant in good faith.
The Applicant complained that the Delegate was prejudiced against him because of the false photographs and this bias on the part of the delegate caused his to reject the Applicant’s entire evidence. He submitted that the Delegate’s bias was held to be correct by the Tribunal, which was a serious procedural error resulting in a miscarriage of justice.
A claim of bias or bad faith is a serious allegation which must be strictly alleged and proved. It is a serious matter involving personal fault on the part of the decision maker. It should not be lightly made.
It has been held by the Full Court of the Federal Court that it is likely to be a rare and extreme circumstance that a lack of good faith on the part of the administrative decision maker, in this case the Refugee Review Tribunal, will be apparent by reference only to the reasons for the decision themselves (SBBF v Minister for Immigration & Multicultural & Indigenous Affairs[15]; SBBS v Minister for Immigration & Multicultural & Indigenous Affairs[16]).
[15] [2002] FCAFC 358 at [16]
[16] [2002] FCAFC 361 AT [43]-[44]
Both the Delegate and the Tribunal rejected the Applicant’s case on the basis of lack of credibility. It is well established that credibility is a finding of fact and a matter for the administrative decision maker (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham[17]). There was evidence in the form of the falsified photographs that amply supported a finding adverse to the Applicant’s credibility. The Tribunal considered and rejected the Applicant’s explanation as “outlandish and completely unsatisfactory”[18], which was a conclusion clearly open to it on the evidence.
[17] (2000) 168 ALR 407; [2000] HCA 1
[18] Court Book 281
The Applicant has not shown why a rejection of his credibility on the basis of his supplying falsified photographs to the Department of Immigration and then giving an “outlandish” explanation establishes bias. Even in the proceedings before this Court he has, in his submissions, attempted to play down the seriousness of supplying falsified photographs in support of his claim.
It has been submitted on behalf of the Minister, and in my view correctly, that a hypothetical fair-minded lay person, properly informed as to the relevant circumstances, would not reasonably apprehend that the Tribunal did not bring an impartial mind to the review (Re RRT; Ex parte H[19] ).
[19] (2001) 179 ALR 425 at [27]-[28]
There is no evidence of bias. The Applicant’s Ground 1(a) has not been made out.
Ground 1(b) claims that the Tribunal wrongly held that the Applicant had delayed his departure from Sri Lanka for 15 months after his visa was issued when it was in fact only three months. The Applicant describes this as “a crucial error” and stated that:
This was a serious procedural error on the part of the RRT and as such constituted to the creation of bias against the applicant and led to a miscarriage of justice.
The ground is misconceived. The Tribunal did not make an error at all. Even if it did make a factual error, that would not constitute a jurisdictional error, because there is no error of law simply in making a wrong finding of fact (Abebe v Commonwealth[20]).
[20] (1999) 197 CLR 510 per Gummow and Hayne JJ at 137
However, the Tribunal did not make a wrong finding of fact. The Tribunal found:
Seventh, the applicant’s visa to Australia was issued on 23 November 2006. However, he did not depart Sri Lanka until February 2007.[21]
[21] Court Book 283
It is most regrettable that the Applicant has chosen to accuse the Tribunal of bias based entirely on his own misreading of the decision.
Ground 1(b) fails.
The Applicant’s Ground 1(c) claims that the Tribunal failed to take proper account of the facts that led to his fleeing Sri Lanka. He claims that the Tribunal “failed to take cognizance of the profile, both economic and social, in determining why he was compelled by life-threatening persecution to leave Sri Lanka”.
The Applicant then proceeds to set out the factual aspects of his claim, that he was a very wealthy businessman who had no reason for abandoning his country of birth except for the persecution he suffered there. He claims:
This was not considered by the RRT and this is not an error of fact but a procedural error which renders the decision null and void.
The task of the Tribunal was to determine whether the Applicant had a well founded fear of persecution in Sri Lanka for a Convention reason. My reading of the Tribunal decision record shows that the Tribunal set out the Applicant’s claims in detail and considered them. The fact that the Applicant did not accept the Applicant’s claims does not mean that the claims were not considered.
There is no procedural error, as the Applicant has claimed. Ground 1(c) has not been made out.
The Applicant’s Ground 1 (d) claims that the Tribunal, “without having a perceptual understanding of the situation in Sri Lanka and the cultural mores has made errors in finding fault with the Applicant’s statements”. He referred to what he claims to be a factual error by the Tribunal about the location of a place of Buddhist worship:
This was held to be inaccurate as it held that the above place of Buddhist worship was located at Hambantota and not Kataragama.
The Applicant then complains that the Tribunal entertained a bias against him because of the false photographs and therefore rejected his entire evidence on credibility grounds.
The Applicant’s claim is just another complaint about the Tribunal’s factual findings. It is no part of the function of the Court conducting judicial review to reconsider the factual merits of the Tribunal’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang[22] ).
[22] (1996) 185 CLR 259 at 272
However a reading of the Tribunal’s findings and reasons shows that the Tribunal was commenting on inconsistencies in the Applicant’s evidence not about where he lived but when he claimed to have lived at the place of Buddhist worship:
However, according to the applicant’s statement he had hidden himself at Ridigama Viharaya following the claimed arson on his house in November 2005 and not in June 2006 as claimed at the hearing. The inconsistencies in the applicant’s evidence in relation to where he had lived at various times casts doubt on the credibility of his claims.[23]
[23] Court Book 283
The ground is misconceived. The Applicant has misunderstood the Tribunal’s decision. Ground 1(d) is not made out.
The Applicant’s Ground 1(e) claims that the Tribunal made incorrect findings about the Applicant’s credibility based on a misunderstanding of the medical certificate that he submitted. This again is no more than an impermissible attempt to review the factual merits of the decision reached by the Tribunal and should be rejected. The task of making findings of fact, including findings as to credibility, is for the Tribunal alone (Kopalapillai v Minister for Immigration & Multicultural Affairs[24]).
[24] (1998) 86 FCR 547 at 552, 559, cited in SZLHA v Minister for Immigration & Citizenship [2008] FCA 782
A fair reading of the Tribunal decision does not disclose any jurisdictional error. The Tribunal invited the Applicant to attend a hearing, where he gave evidence with the assistance of an interpreter. The Applicant’s credibility, particularly in respect of the falsified photographs, was an issue before the Tribunal, as it was in the decision of the Minister’s Delegate. There is nothing to show that the tribunal failed in any way to provide a hearing as required by s.425 of the Migration Act.
There appears to be no breach of s.424A of the Act. The Tribunal wrote to the Applicant on 28th September 2007 and invited his comments on a number of matters, to be provided by 24th October 2007. The Applicant in fact provided a submission in reply on 29th October, five days after the deadline, and the Tribunal considered the matters in the submission.
There is no jurisdictional error. Accordingly, the Tribunal decision is a privative clause decision and, as such, is not subject to certiorari, mandamus, declaration or other relief (s.474(1)).
The application will be dismissed with costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 18 July 2008
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