SZMUE v Minister for Immigration
[2008] FMCA 1677
•10 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMUE v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1677 |
| MIGRATION – RRT decision – Indonesian applicant claiming persecution by Muslim extremists – claims disbelieved by Tribunal – no jurisdictional error found – application dismissed. |
| Migration Act 1958 (Cth) |
| Applicant: | SZMUE |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2484 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 10 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 10 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | Ms J Dinihan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2484 of 2008
| SZMUE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant was taken into immigration detention when he arrived in Australia in November 2007, after he was found to be travelling on a photo substituted Indonesian passport. When interviewed at the airport, he initially maintained that he was the person shown in the passport. However, when confronted with evidence about the passport received from the Indonesian Embassy, he admitted that the passport was fraudulent, and claimed to be a person of Indonesian nationality with a different name. Corroborative evidence of this claimed identity has never been presented to the Department nor to the Tribunal.
He told the Department official at the airport:
I feel I am the victim of a scam. I've paid a lot of money - sold all my assets to have this organised to work in Australia and if I return to Indonesia I will be hunted down to pay my debts. So I feel it is unsafe for me to return. Because of the difficulty in the economy in Indonesia especially in my area - I would like to work here to pay off my debt. Because the other problem is if I go back because of this situation, I feel that my family and I will be in danger. I feel it will be dangerous for me to go back.
The applicant subsequently was given the assistance of a solicitor to make a protection visa application. This was lodged on 18 February 2008. A statement attached to the application maintained the identity of the applicant he claimed at the airport, and claimed:
I fear that I will be [persecuted] for reasons of religion and imputed political opinion if I return to Indonesia because I have been targeted by members of an extremist Muslim group who tried to recruit me to join them and fight in Afghanistan. I refused to do this and as a result my life has been threatened.
The statement recounted a history, in which the applicant met an identified person on a number of occasions, who spoke to him about Jihad and asked him to “join them a group which organised readings of the Koran throughout Indonesia and also in Malaysia”. He attended “roughly 10 of these meetings between 2005 and early 2007”. At an early meeting he was asked if he “would like to go and fight in Afghanistan” in return for receiving “$10,000 and free travel to Afghanistan where he would receive military training”. He refused to go, and told the person making the offer that he “did not agree with him” but believed that “people of different religions should respect each other”.
The applicant claimed that he received threats as a result of his refusal, and described several incidents that occurred during 2007 which threatened him and his family. On a trip to Sumatra, his truck was stopped and attacked by seven men, who said words which appeared threatening. On another occasion, people had thrown stones at his father's house. Later, whilst sitting in a coffee shop in Sumatra with the previous truck driver, a person threatened him with a sword. Finally, he claimed that in mid 2007, a person whom he had seen in the company of the person who made the offer “ran me down with his car” while he was in Yogjakarta. He said: “I was knocked down and rendered unconscious”. He told the police that he recognised the person, but did not give them the name or tell them about the group, because he was afraid that they would believe he was involved in terrorist activities.
The applicant claimed that his sister then arranged for him to leave Indonesia. He travelled to Australia on the false passport in August 2007, and stayed for three months before flying to Singapore, and was returning to Sydney when he was detained. His statement said:
I believe that I will continue to be in danger from the same people who threatened me before I return to Indonesia. They have a network which operates throughout Indonesia and I do not believe I will be safe anywhere. I cannot ask the Indonesian authorities to protect me because I believe that they will suspect me of involvement with an extremist group and will detain or otherwise harm me.
No supporting evidence for these claims was ever presented to the Department of Immigration nor to the Refugee Review Tribunal, although a series of general publications concerning the activities of Muslim groups in Indonesia were sent to the Tribunal.
A delegate interviewed the applicant on 28 February 2008, and on 4 March 2008 the delegate made a decision refusing the protection visa application. The delegate formed the view that parts of the applicant's claims were implausible, and explained his reasons for that conclusion.
On appeal, the applicant continued to be assisted by his solicitor. He attended two hearings held by the Tribunal. Between the hearings the Tribunal was reconstituted, because the first member published a decision without having taken into consideration a submission made by the applicant's solicitor.
The reconstituted Tribunal conducted a further hearing attended by the applicant, and then wrote a very lengthy decision reviewing all the evidence and material on the file. This included two written invitations for comment on concerns of the Tribunal, country information, and records of the interviews with Department officers. The same concerns were also put to the applicant in the course of the hearing by the Tribunal, following a procedure provided under s.424AA.
I am unable to detect any flaw in the procedures followed by the Tribunal in this case and, indeed, they appear to me to be impeccable.
The Tribunal handed down a statement of reasons on 28 August 2008, in which it affirmed the delegate's decision. In its findings and reasons the Tribunal concluded that: “there are good reasons not to accept the applicant's evidence regarding his contact with Muslin extremists in Indonesia and the incidents which he claims happened to him as a result”.
The Tribunal noted some elements in the applicant's evidence which had changed from time to time, and characterised his claims as having been “somewhat fluid”. However, the Tribunal's essential reasons for disbelieving the applicant were that his important claims did not appear to make sense.
The Tribunal pointed out that it was difficult to accept that the applicant would have received repeated offers of travel to Afghanistan, and that the persons who made the offers would also have discussed how to assemble bombs in front of him, if, as he claimed, he had made it clear to them from the start that he did not agree with their views about Jihad. The Tribunal also found it difficult to accept that the persons “would be motivated to kill the applicant just because he did not share their view of Jihad”. The Tribunal therefore did not accept that these events had happened.
For similar reasons, the Tribunal also did not accept the applicant’s claims concerning the threatening incidents. It found it difficult to accept, on his own account which placed him on a particular road in Sumatra relatively accidentally, that the group would have known that he would be there so as to stop and threaten him. It similarly found it difficult to accept that they could arrange for someone to threaten him on the later occasion in Sumatra. The Tribunal concluded that it did not regard the applicant's evidence regarding the incidents as credible, and did not accept the applicant was telling the truth.
The Tribunal said that it also considered it relevant that the applicant had made no attempt to apply for refugee status on his first visit to Australia. The Tribunal took into account what the applicant said about this at the hearing. It also considered a submission from the applicant's solicitor in response to an invitation for written comment, in which he raised a different explanation. This was that he was fearful of telling anyone about his problems, as a result of having met an associate of a Muslin extremist while in Australia. The Tribunal did not accept these explanations, and it concluded:
I consider that his failure to take such steps casts doubt on whether he is telling the truth about his claimed fear of being persecuted if he returns to Indonesia.
The Tribunal also addressed a concern raised by the applicant's solicitor in her last submission, which was that the applicant was concerned that he had been “interrogated by two Indonesian men who he believed to be Indonesian police while detained at the airport in Sydney”. They said that the applicant claimed to have been told on a later occasion by somebody from the Indonesian Embassy, that there was no record of his being interviewed at the airport, and that this therefore suggested that he had not been interviewed by “ordinary Indonesian Consular Officials, but people who had a special interest in him because of his background”.
The Tribunal said in relation to this claim:
This claim appears to suffer from that same problem as the applicant’s claims with regard to the incidents which happened to him in Sumatra, namely that it assumes that the Indonesian police could have known that he would be travelling back to Australia on that particular day so that they could have arranged for two Indonesian police officers with a particular interest in his background to be present at the airport in order to interview him. I do not regard this claim as credible. I do not accept that the Indonesian officials who came to the airport in Sydney when the applicant was detained had any interest in him other than the fact that he had used a false Indonesian passport to travel to Australia.
The Tribunal concluded that the applicant was not generally a credible witness. It did not accept that there was any truth to his claims, and did not accept that there was a real chance that he would be persecuted by reason of real or perceived political opinions or his real or perceived religious beliefs if he returned to Indonesia now or in the reasonably foreseeable future.
The Tribunal also addressed the applicant’s statement at the airport that he could not return to Indonesia because he would be hunted down for his debts. It did not treat this as a matter of credibility, but considered whether the statement raised a separate ground for protection under the Refugees Convention. It did not think it did.
Similarly, the Tribunal also considered the fact that he might have committed an offence under Indonesian law by using a false passport. It concluded that there was not a real chance that he would be singled out or treated differentially for a Convention reason from anyone else in that position.
The Tribunal accordingly was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention.
I have considered the Tribunal's reasoning, and it appears to me to be rational consideration of the evidence, and to show a genuine attempt to assess the truth of the applicant's claims. It has taken into account all the evidence before it, and I consider that the conclusions arrived at were open to it as a matter of law. I am unable to detect any evidence of jurisdictional error affecting the Tribunal's decision.
The applicant's grounds for seeking the setting aside of the Tribunal's decision and the remitter of the matter are set out in his original application as follows:
The grounds of the Application are:
1.I was targeted by extremist Muslim group in Indonesia because I refuse joint to Afghanistan.
2.I believe that would be safe in Australia but I remained for view time.
Orders sought by Applicant:
1. I refuse join to Afghanistan this only one reason, another reason according one of member said “that I know to much”, I believed they ever in dialog or states “very important matter” with me, which make them threatened me and hunted me.
2. When I arrived in Australia my English very limited, shortly when I meet a man recognize that he is sone of kartosuwiryo I got doubt and fear, that the way I must be careful to trust someone else to told the truth. When I found they did not advice me to apply protection.
The applicant has not filed any further documents by way of amended application, evidence or written submissions, and did not today say anything which explained the points he was making in the first three of these contentions. I am unable to give them any meaning, other than an invitation to the Court to consider for itself the applicant's claimed history, and to make its own assessment of its truth. However, this is not the function of the Court. It was the province of the Tribunal to decide the credibility of the applicant's history, and I cannot find in these contentions any reason to find a flaw in how it arrived at its conclusions.
The last paragraph repeats a claim which was made to the Tribunal to explain the applicant’s failure to seek protection during his first visit to Australia, as I've explained above. The applicant repeated this claim again to me today. However, essentially the ground and his submissions invite the Court to reconsider the Tribunal's rejection of his explanation. They do not raise any jurisdictional error. The Tribunal has, in my opinion, fully considered this matter in the course of arriving at its conclusions, and those conclusions were legally open to it.
A third matter which was raised by the applicant today was his concern that he may have been interviewed at the airport by Indonesian officials who were involved for reasons other than his use of a false passport. He suggested that there was confirmation for this in the Department's documents in the Court Book, because they made no reference to his being interviewed by Indonesian officials.
The Departmental records of events at Sydney Airport do show the attendance of Indonesian officials later in the interview process, and that at one stage they entered the interview room. They do not show whether the applicant was interviewed by them. The records suggest that this occurred when the genuineness of the applicant's passport was being examined, and that information was being obtained from the Indonesian Embassy about the issue of the passport used by the applicant. The Departmental documents before me, which were apparently also before the Tribunal, do not provide support to the applicant's suspicions that he was of interest to Indonesian officials for other reasons, nor that they anticipated his arrival on that occasion.
As I have indicated, the Tribunal did address this concern, and could not find any support in the events at the airport for the applicant's claimed involvement with a Muslin extremist group. I can detect no error, whether factual or legal, in how the Tribunal has considered this matter. I do not consider that the applicant's concern expressed to me reveals any jurisdictional error in how the Tribunal decided the case.
For the above reasons I am not satisfied that any jurisdictional error has been raised by the application. I therefore find that the Court has no power to set aside the Tribunal's decision, and I must dismiss the application.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Michael Abood
Date: 16 December 2008
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