SZMFX v Minister for Immigration & Anor

[2008] FMCA 1150

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMFX v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1150

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming ethnic persecution in Armenia – applicant not believed – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A

Applicant: SZMFX

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1198 of 2008

Judgment of: Driver FM

Hearing date: 13 August 2008

Delivered at: Sydney

Delivered on: 13 August 2008

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents: Mr M Cleary

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,300 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1198 of 2008

SZMFX

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was handed down on 17 April 2008.  The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from Armenia and had made claims of ethnic and political persecution.  The background to the applicant's claims and the decision of the delegate on them is conveniently summarised in the Minister's written submissions.  I adopt as background for the purposes of this judgment paragraphs 4 through to 14 of those submissions:

   The applicant claims to fear persecution in Armenia by reason of his mother’s ethnicity and his political opinion.  Specifically, he claims[1]:

   [1] Green Book (“GB”) 78-84.

   (a)his mother is Azerbaijani although she was born and raised in Armenia, and the applicant’s father was Armenian;

   (b)Armenians are persecuting Azerbaijanis in Armenia, especially in the applicant’s town of Echmiadzin;

   (c)he, his mother and brother have been beaten many times and have complained to the police – who would respond by telling them to return to Azerbaijan;

   (d)in 2003 his mother was assaulted by an Armenian women, and on that occasion the police also would not assist – telling her again to return to    Azerbaijian;

   (e)as a consequence of his complaints to higher authorities about the police, the applicant’s mother was threatened and beaten by police;

   (f)in 2004 he went to Yerevan as he could not stand his mother’s humiliation, and      in August 2004 he wrote to the President;

   (g)about one and half months before his departure to Israel he was beaten by police;

   (h)he remained in Israel with relatives for two years, from 2004 to 2006, before coming to Australia; and

   (i)whilst in Israel he returned to Armenia once and remained there for 20 days.

   Delegate’s decision

   The delegate refused to grant a protection visa on 5 November 2007[2].

   [2] GB 33-42.

   The delegate found the applicant did not have a well-founded fear of Convention based persecution.

   Tribunal review process

   On 26 November 2007 the applicant applied for a review of the delegate’s decision in the Tribunal[3].

   The applicant was invited and attended an oral hearing on 7 February 2008.

   On 8 February 2008 the Tribunal sent the applicant an invitation to comment under s.424A of the Act[4], and by letter dated 24 February 2008 the applicant replied to the invitation by providing comments[5].

   Tribunal’s decision

   In a decision dated 28 March 2008 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. 

   The Tribunal’s basis for affirming the delegate’s decision was the Tribunal’s finding that the applicant was not a credible or truthful witness[6]. The Tribunal made this finding based on an analysis of his oral evidence and written response to the s.424A invitation to comment[7].

   The Tribunal found key aspects of the applicant’s evidence to be implausible and unconvincing[8].

   The Tribunal also found that the applicant’s evidence showed a propensity to fabricate claims and tailor and shift evidence in a manner which achieves his own purpose[9]. 

   The Tribunal rejected the applicant’ claims and found it was not satisfied the applicant had a well-founded fear of Convention based persecution in Armenia[10].

   [3] GB 43-46.

   [4] GB64-65.

   [5] GB 66-70.

   [6] GB 85.3.

   [7] GB 85-86.

   [8] GB 87.4.

   [9] GB 88.4.

   [10] GB 88.7.

3. These proceedings began with a show cause application filed on 12 May 2008.  The applicant now relies upon an amended application filed on 20 May 2008.  Both applications raise the same grounds.  They are, first, that the Tribunal wrongly applied the test of “persecution fear” and secondly, that the Tribunal misapplied the test of “reasonable fear”.  I accepted as a submission an affidavit making the same assertions filed on 12 May 2008 by the applicant.  I received as evidence the court book filed on 20 June 2008. 

4. Prior to coming onto the Bench for today's hearing, the Minister's written submissions were read to the applicant by Ms Lucy Varbedian, the Armenian interpreter engaged for today's hearing.  The applicant said that he had discussed those submissions with a friend previously.  However, the applicant reported through my Associate that he had difficulty understanding Ms Varbedian because of differences in dialect.

5. At the first Court date hearing of this matter on 19 June 2008, the applicant had requested an Armenian interpreter from Armenia.  Ms Varbedian, as it turns out, was born in Lebanon.  As explained to me by the applicant and Ms Varbedian, this gave rise to an issue of dialect.  They explained to me that there are different Armenian dialects.  In particular, the applicant speaks the eastern Armenian dialect which is spoken in Armenia and in a number of countries in what might loosely be described as "the eastern world".  Ms Varbedian speaks the western Armenian dialect which is spoken in Lebanon and other countries in what might be loosely be described as "the western world".  They explained to me that there are significant differences in the manner of expression in the two dialects.  I accept that.  The applicant requested an interpreter who speaks the eastern Armenian dialect.  In particular, the applicant asked the Court to seek to engage Mr Andranik Yardemian who had assisted him before the Tribunal.  That request might seem surprising given that the applicant had complained after the Tribunal hearing about the quality of interpretation provided at the Tribunal hearing (GB 85).  Nevertheless, the Court was able to meet the applicant's request.  Mr Yardemian interpreted by telephone for the balance of the hearing.  Ms Varbedian remained in the court room in case there was a problem with the telephone.  I was satisfied that the applicant did not experience any further difficulties in interpretation. 

6. In his oral submissions, the applicant referred to the adverse credibility findings made by the Tribunal. The applicant stated that he was asked many questions by the presiding member at the hearing and answered them. He said that the same or similar questions were put to him later in writing and he responded. I took that to be a reference to the invitation put to the applicant on 8 February 2008, pursuant to s.424A of the Migration Act 1958 (Cth) (GB 64 and 65).

7. It was plain that the applicant is frustrated that the Tribunal did not accept his explanation of what the Tribunal saw as inconsistencies in his information.  The applicant is concerned that the Tribunal took too strict an approach on that issue.  He is concerned that the Tribunal did not take into account seriously the answers he provided orally and in writing. 

8. There is no substance to the two grounds raised in the amended application.  The Tribunal in its decision accurately identified the tests that were to be applied (GB 77).  The balance of the Tribunal decision satisfies me that the Tribunal was both alert to and did apply those tests in considering the applicant's claims.  The Tribunal decision turned entirely on the issue of the applicant's credibility.  The Tribunal did not find the applicant to be a truthful and credible witness.  The Tribunal found that the totality of the applicant's evidence shows a propensity to fabricate claims and tailor and shift evidence in a manner which achieves his own purposes (GB 88).  For that reason, the Tribunal did not accept the factual claims made by the applicant. 

9. The Tribunal decision records a detailed examination of the applicant's claims at the hearing conducted by the Tribunal. The applicant was put on notice at the Tribunal hearing of its credibility concerns. However, the Tribunal also put those concerns, based upon what the Tribunal saw as inconsistencies in the applicant's evidence, in writing in the s.424A request. The Tribunal arguably went beyond its obligations under that section. However, the approach taken by the Tribunal was prudent and lawful. There is nothing in the record of the Tribunal proceedings to indicate bias. There is absolutely no doubt that the Tribunal engaged in an active intellectual process in considering the applicant's claims. The adverse credibility findings made by the Tribunal were open to it on the material before it.

10. The applicant is aggrieved that he was not able to persuade the Tribunal to a different outcome.  That goes to the merits of the decision which are beyond the scope of this proceeding.  In my view, the presiding member did her job in an extremely thorough fashion.

11. I find that the Tribunal decision is free from jurisdictional error.  It is, therefore, a privative clause decision and the application must be dismissed.

12. The application, having been dismissed, costs should follow the event.  The Minister seeks an order for costs fixed in the sum of $4,300.  Scale costs in this instance would be $5,000.  The applicant said that, if he was not believed, there was nothing further he could say.  I accept that costs of not less than $4,300 have been reasonably and properly incurred on behalf of the Minister when considered on a party and party basis.  I will order that the applicant pay the first respondent's costs and disbursements of and incidental to the application fixed in that amount.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  15 August 2008