SZMQV v Minister for Immigration and Citizenship

[2009] FCA 455

FEDERAL COURT OF AUSTRALIA

SZMQV v Minister for Immigration and Citizenship [2009] FCA 455

SZMQV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 80 of 2009

BESANKO J
7 MAY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 80 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMQV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE OF ORDER:	7 MAY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 80 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMQV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BESANKO J
DATE:	7 MAY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals against orders made by the Federal Magistrates Court on 19 December 2008. On that date, an order was made that the appellant’s application for constitutional writs directed to the Minister for Immigration and Citizenship and the Refugee Review Tribunal (“the Tribunal”) be dismissed and that the appellant pay the first respondent’s costs.

2. The appellant is a citizen of Thailand. He arrived in Australia on 11 November 2007 and he applied for a Protection (Class XA) visa on 24 December 2007. A delegate of the first respondent refused the appellant’s application on 21 February 2008. The appellant was notified of the decision on that day. On 26 February 2008, the appellant made an application for review of the delegate’s decision to the Refugee Review Tribunal (“the Tribunal”). The Tribunal handed down its decision on the application for review on 24 July 2008. The Tribunal decided to affirm the decision not to grant the appellant a Protection (Class XA) visa. The appellant was advised of the Tribunal’s decision on 24 July 2008, and he instituted his proceeding in the Federal Magistrates Court on 18 August 2008.

3. The appellant pursued his application before the Federal Magistrates Court on five grounds. Only two of those grounds are pursued on the appeal to this Court. First, the appellant claims that the federal magistrate erred in not concluding that the Tribunal member made six errors which were such that the decision of the Tribunal member was “flawed” and that the Tribunal member had not given the appellant “a fair and just hearing”. Secondly, the appellant claimed that the federal magistrate erred in failing to conclude that the Tribunal member was biased.

4. Before turning to consider the two grounds, it is necessary for me to summarise briefly the basis upon which the appellant claimed an entitlement to a protection visa.

5. The appellant is a citizen of Thailand and he is 43 years of age. He is a Muslim. He claimed to have owned a business in Thailand which he operated from February 2006 until November 2007, and he claimed to have resided at the same address since 1998 until he departed from Thailand in November 2007. He claimed that, as a Muslim, he was treated very badly. There was unrest and the army became involved. Protesters and Muslims were killed by the army. The conduct of his business involved the appellant travelling around the country and he was given a “hard time” by the army. In April 2006, he and some friends organised peaceful meetings of the local businessmen and people, who were sick and tired of the behaviour of the army and the terrorists. He spoke out about the activities of these organisations and was soon considered a threat. He became friendly with a man by the name of Amin. He also knew, and was associated with, a man named Mamin. On 29 March 2007, Amin was abducted, and has not been seen since. On 3 April 2007, Mamin was “gunned down” between two military check posts. The appellant claimed that people started to look for him.

6. The Tribunal’s reasons comprise 20 pages. In her reasons, the Tribunal member sets out in detail the appellant’s claims and the evidence and other material he advanced in support of those claims. The evidence included statutory declarations by the appellant and two other persons. In addition, the Tribunal member summarises the evidence the appellant gave at a hearing on 15 May 2008 and then at a further hearing on 10 June 2008. The Tribunal member also summarises extensive post-hearing submissions made by the appellant on 16 June 2008.

7. The Tribunal member set out her findings and reasons. She said that, in essence, the appellant claimed to fear to persecution because of his attempt to help a friend called Amin. He claimed that, because of his and other people’s involvement in the matter, persons including Amin and others were abducted and killed. He claimed that if he returned to Thailand he would be killed. The Tribunal member said that she did not find the appellant to be credible on some key aspects of his claims. She then identified three areas involving what she called inconsistencies and implausibility which led her to conclude that the appellant was not truthful or credible:

   1.At the hearing before the Tribunal, the appellant gave evidence to the effect that a number of his friends were shot or went missing. He did not mention these matters in the lengthy statement he gave in support of his protection visa application. The Tribunal member was not convinced by the appellant’s explanation for omitting this information.

   2.The appellant’s evidence in relation to the organisation he claimed was set up in 2006 was unsatisfactory. The Tribunal member said:

   “The Tribunal accepts that the applicant and others engaged in conversations about the situation in their area. The Tribunal is not satisfied that they set up an organisation which attracted adverse attention from the army and the terrorists as claimed by the appellant. It is the Tribunal’s view that the applicant provided details about the organisation in an effort to portray himself as a political activist who could attract adverse attention.”

   3.The Tribunal member said that the appellant’s delay in departing from Thailand was “of major concern”. He held a valid passport and yet he did not leave Thailand to come to Australia until November 2007. She said:

   “The Tribunal is of the view that had the applicant been a target, as claimed, he would not have returned to Russo and he would have departed Thailand a lot sooner than November 2007.”

8. The Tribunal member concluded her reasons by saying that while she accepted that the appellant knew Mamin and Amin in Thailand and that they were victims of harm, she was not satisfied that the appellant attracted any adverse attention because of his connection to these men. She said that she was not satisfied that the appellant was associated with an organisation which attracted any adverse attention. She said that she was not satisfied that the friends who he referred to for the first time at the hearing were harmed as he claimed. She said that she did not accept that the appellant was the subject of threats or that his property was the subject of two raids by the authorities in Thailand. She said that she was not satisfied that the appellant would suffer serious harm for any Convention reason should he return to Thailand.

   Alleged errors

9. The six alleged errors are errors of fact or, more accurately, alleged errors in setting out evidence the appellant had given before the Tribunal. None of the alleged facts are jurisdictional so that the doctrine of jurisdictional fact can be put to one side. There was no error of law in simply making a wrong finding of fact: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 560 [137] per Gummow and Hayne JJ. The alleged errors of fact in this case were not findings of fact that form part of the essential basis for the rejection of the appellant’s claim so that the case does not raise issues relating to findings of fact (for which there is no evidence) which are critical to the acceptance or rejection of a claim and whether there can be jurisdictional error in those circumstances. It seems to me that the area of discourse in this case is whether there has been such a misstatement of an applicant’s case as to indicate a failure to address the claim or carry out the review function: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088.

10. The first alleged error is that the Tribunal member erred in stating that the appellant had given evidence that, in October 2006, he had seen Amin with two boys who were selling cloth. In her reasons, and in the course of setting out what the appellant had said at the hearing on 15 May 2008, the Tribunal member said:

    “In October 2006 the applicant saw Amin in Naratiwat City. They often met there. Amin was in the company of two ‘local guys’. He introduced the applicant to them. They discussed the committee. The two men with Amin were selling Batik.”

11. The appellant told me that Batik is a form of garment. The appellant did tell the Tribunal member that he saw Amin with two men, and that Amin was selling Batik, but it is not clear that he told the Tribunal member that the two men with Amin were selling Batik. The Tribunal member did not make a finding on this particular matter and it was quite irrelevant to her consideration of the appellant’s claim. It did not play any part in her conclusions about the appellant’s credit. Even if the statement is an error, it is of no consequence.

12. The second alleged error is that the Tribunal member, in the course of setting out the evidence the appellant gave on 15 May 2008, stated that the appellant had said that Mamin was killed on 5 February 2007, whereas, in fact, the appellant had said that Mamin was killed in April 2007. The appellant points to the following passage in the Tribunal member’s reasons:

    “On 5 February 2007 Mamin was killed. The applicant was in Bangkok. The applicant had gone to Bangkok on 2 April 2007 to see a girlfriend and to receive some supplies. Mamin’s funeral was due to take place on 7 or 8 April 2007. The applicant travelled by plane to Bangkok on 4 April 2007. On 6 April 2007 the applicant heard that Mamin had been injured but did not realise that the injuries were so serious. On 7 April 2007 (his girlfriend’s birthday) he spoke to friends and was told about Mamin’s injury. He stated that he was very drunk on the night of 6 April 2007. He did not go to the funeral …”

13. Bearing in mind the date of the funeral, I am disposed to think that the reference to 5 February 2007 is a typographical error. This conclusion is strengthened by the fact that, in other parts of her reasons, the Tribunal member refers to Mamin being killed in April 2007. In the section dealing with her findings and reasons, she refers to Mamin being murdered in April 2007. I do not think the Tribunal member misunderstood the evidence. In any event, she did not make (or need to make) a finding about the date, nor was it relevant to her assessment of the appellant’s credit.

14. The third alleged error is that the Tribunal member erred in saying that the appellant’s evidence was that Amin was kidnapped on 13 March 2007, whereas the appellant’s evidence was that Amin was kidnapped on 29 March 2007. In putting this argument, it would seem that the appellant was referring to the following passage in the Tribunal member’s reasons.

    “He stated that he went to the village where the two persons suspected of abducting Amin resided and told the villagers to hand over Amin either dead or alive. He stated that if Amin had been killed they hoped to have his body so that he could have a proper funeral. I asked the applicant when he went there. He said he went on the day after the abduction, 13 March 2007. On 29 March he had spoken to some people and went to the spot where Amin was abducted.”

15. As far as I can see from the transcript of the Tribunal hearing, the appellant referred to Amin being kidnapped on 29 March 2007. However, if there be error on the part of the Tribunal member, I do not think it is of any consequence. She referred to the correct date in the section dealing with her findings and reasons and the precise date played no part in her conclusions as to the merits of the appellant’s claim or his credit.

16. The fourth alleged error is that the Tribunal member misstated the effect of the appellant’s evidence in that she said that the appellant went to Bangkok on 2 April 2007, as well as saying that he went to Bangkok by aeroplane on 4 April 2007. I have already set out the relevant passage (at [12]). The Tribunal member’s statement is somewhat confusing, but I do not think that it is of any consequence. It played no part in her conclusion on the merits of the appellant’s claim.

17. The fifth alleged error is that the Tribunal member had misstated the effect of the appellant’s evidence in that she said that he had asserted that he could not get a visa from Malaysia and Thailand. In fact, his passport clearly shows that he has a visa from Bangkok. As I understand it, the first respondent accepts that the Tribunal member misstated the appellant’s evidence in that she should have said Malaysia and Singapore, not Malaysia and Thailand. However, I think that the first respondent is correct in submitting that the error is of no consequence because the reasons of the Tribunal member show that she understood that the appellant had arranged a visa to travel to Australia through an agent in Bangkok.

18. The sixth alleged error is that the Tribunal member had misstated the effect of the appellant’s evidence in stating that he had given evidence that “it is safe to return to Russo”. He asserts that he never said anything to that effect. The Tribunal member makes two references to the subject in her decision. In her first reference, she refers to the appellant saying that he returned to Russo and that he thought he might be okay and, in her second reference, she refers to the appellant saying that he thought it might be safe to return to Russo at that time. I have read the relevant passages of the transcript of the hearing before the Tribunal and I think that what the Tribunal member said is a fair summary of what the appellant both said and did. It follows that there was no error in relation to this matter.

19. The first ground of challenge must be rejected.

    Bias

20. The claim of bias was dealt with by the federal magistrate, who said:

    “There is no evidence to show that the Tribunal member showed any lack of impartiality in deciding this matter. The transcript of the hearing, provided by the applicant in support of his case, contains strong evidence that the Tribunal was most considerate of the applicant’s health situation and, if anything, bent over backwards in order to ensure that the applicant was able to present his case. It is a most regrettable accusation to accuse the Tribunal of bias without any foundation.”

21. Nothing was said on the appeal to suggest that the federal magistrate erred in concluding that the allegation of bias was baseless.

22. The second ground of challenge must be rejected.

    Conclusion

23. The appeal must be dismissed. I will hear the parties as to costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:        7 May 2009

The Appellant appeared in person
Counsel for the First Respondent:	Mr Y Shariff
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	5 May 2009
Date of Judgment:	7 May 2009