SZMXS v Minister for Immigration
[2009] FMCA 537
•25 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZMXS v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 537 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in India as a Muslim journalist – applicant not believed – Tribunal seeking to verify applicant’s claims through Department of Foreign Affairs and Trade – outcome adverse to applicant’s credibility – whether the Tribunal should have made a further inquiry considered – applicant producing articles to the Tribunal in the Gujarati language – Tribunal declined to receive them – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth) in relation to the articles considered. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 425 |
| Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589, 173 ALR 362 Luu v Minister for Immigration [2002] FCAFC 369, 127 FCR 24 Luu v Renevier (1989) 91 ALR 39 Prasad v Minister for Immigration [1985] FCA 47 Singh v Minister for Immigration (1985) 9 ALN N13 SZIAI v Minister for Immigration [2008] FCA 1372 Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108 |
| Applicant: | SZMXS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2915 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 2 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 25 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr C Jackson |
| Counsel for the Respondents: | Ms T Wong |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The Court directs that the applicant’s name is not to appear on the transcript of proceedings.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $5,865 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 2915 of 2008
| SZMXS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 13 October 2008 and handed down on 14 October 2008. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had claimed persecution based upon his position as a high profile journalist in Gujarat State. The applicant claimed to be a Muslim subject to oppression by the mainstream Hindu community in Gujarat.
The applicant claimed that in 1992 he started work as a journalist with an Indian newspaper named Gujarat Today which was the only Muslim daily paper in Gujarat[1]. As a result of his reporting (which included reporting of atrocities committed upon the Muslim minority in Gujarat) he said that he became a leading activist of the Muslim community. He claimed that he earned the enmity of Gujarat government and authorities and Hindu activists, leading to the laying of false charges. He claimed that he was imprisoned twice and beaten.
[1] court book (CB) 29
The Tribunal conducted a hearing on 1 August 2008 following a request from the applicant for a delay, which was accepted. Prior to the hearing, the applicant had furnished to the Tribunal a number of documents in support of his claims, including media reports. At the hearing, the applicant produced further documentation. The Tribunal decision records at [46]-[48][2]:
The applicant brought more documentation into the hearing. He produced a large bundle of documents, including newspaper clippings of the articles which he claimed to have written for the newspaper. He said that they were all written in Gujarati. He said that these documents had been posted to him from India. The Tribunal referred to its letter dated 20 May 2008 which had stated “if the comments or response or additional information is in a language other than English it must be accompanied by an English translation from an accredited translator”. The applicant said that he had been thinking of getting them translated but then he thought he would submit them during the hearing. He said that they would be very expensive to translate. He said that there were more than a hundred articles in the bundle.
The Tribunal expressed surprise that such a large quantity of documents would be produced at the hearing. A request for documentation had been made more than two months previously. The applicant stated that he had mentioned in his application that he would submit “proof”. He said that he had told the Department that he wished to submit documents. The Tribunal told the applicant that there was no record of this on the Department file. However, the Tribunal agreed that in the statement attached to the PVA he had claimed to have written articles for Gujarat Today.
The applicant said that he had written these articles under the name of …. He said that this was his nickname. The Tribunal asked the applicant if there was a reason why he had not mentioned in his application, or in the written statement, or in submissions, that he had used this name in writing articles. The Tribunal noted that this nickname had not been disclosed on the PVA where he was asked to state other names that he was known by. The applicant replied that when he came to Australia he was “tense” and he “forgot to mention that thing.” The Tribunal asked the applicant how many articles he had [brought] into the hearing which he had claimed to have written. He said that there were “nearly 50” articles. The applicant told the Tribunal that in these articles he “exposed scams”. All the articles were written in 2004. The Tribunal asked why there were no articles after this date. The applicant said that he was “harassed very badly so I had to leave the place.”
[2] CB 306
At the Tribunal’s request the applicant presented his press identity card. This appears to have been in the context of the Tribunal having some doubt about the applicant’s identity.
Following the hearing, the Tribunal asked the Department of Foreign Affairs and Trade (“DFAT”) to make enquiries of the newspaper Gujarat Today to determine whether or not, when and in what capacity the applicant worked there[3]. Specifically, the Tribunal asked DFAT to check the validity of the applicant’s press identity card and, if possible, obtain a photograph of the person whose name appears on the card.
[3] CB 243
DFAT responded on 2 September 2008. It is apparent that that response was initially unsatisfactory to the Tribunal as, on the one hand, it purported to confirm that the applicant was formerly employed by the newspaper Gujarat Today but also said that he had only worked for the newspaper some four to five years ago for around two months. That was inconsistent with his claims. The diplomatic post was unable to verify the photograph of the applicant[4]. Following a request for clarification the response was amended so that it merely stated that a person with the same name as the name the applicant said he used had worked for the newspaper some four to five years ago for around two months. The press identity card had not been provided to the newspaper as the management had reported that they would be unable to verify its authenticity. The diplomatic post confirmed that it was unable to verify the photograph of the applicant on the card through other sources (it is not clear whether those were limited to sources among the staff at the newspaper)[5].
[4] CB 361
[5] CB 260
On 3 September 2008 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) inviting him to comment on the information obtained from DFAT[6]. The letter makes clear that the Tribunal had doubts as to the applicant’s identity and the authenticity of his press identity card. The Tribunal also had doubts about the genuineness of the applicant’s claims concerning his activities as a journalist as they were inconsistent with the information obtained by DFAT from Gujarat Today.
[6] CB 268-270
In a response dated 12 October 2008[7] the applicant’s migration agent disputed the adequacy of the information obtained through DFAT and invited a further request by DFAT to confirm the applicant’s identity with the owner of the newspaper or some “responsible employees of the same newspaper who is capable of answering the question posed by the RRT”. The agent suggested that reliance upon the information obtained at that point would be a denial of procedural fairness.
[7] CB 282-284
The Tribunal decision
The Tribunal noted that it was cental to the applicant’s claims that he was persecuted because of articles he wrote for the newspaper[8]. The Tribunal referred to the enquiry made through DFAT and its response. The Tribunal then stated[9]:
The DFAT response in regard to enquiries at the Gujarat Daily states that staff at the newspaper said that that a person known by the name … worked with the newspaper “some four to five years ago, for around two months.” This is inconsistent with the applicant’s claims that he wrote under the name on a continuous basis since 1992 and that “before leaving India” he “constantly worked for the Gujarat [T]oday”. It is also inconsistent with his claim that because of his status as a writer he became well-known as a Muslim activist.
In his most recent submission (12 October 2008) the applicant’s representative implies that the DFAT report is contradictory or insufficient. He also claims that the DFAT is “arguing” a particular position in regard to the applicant rather than providing an impartial response. Gujarat Today staff informed DFAT that a Mr … worked with Gujarat Today some four to five years ago for around two months. They also advised that due to inadequate records management they would be unable to verify the authenticity of the press identity card submitted by the applicant. The photograph of the applicant could not be confirmed as Mr… because most staff at Gujarat Today either knew very little about Mr …or were too new to the organisation to provide any information. The Tribunal does not find the DFAT report contradictory, insufficient or partisan. The Tribunal declines the applicant’s suggestion to send a photograph of the applicant to Gujarat Today, or to “reconfirm” the identity of the applicant.
Based on the above-noted evidentiary concerns and in consideration of the evidence as a whole, the Tribunal finds that the applicant is not a credible witness and that he has fabricated claims in order to support his application for a protection visa.
[8] CB 325
[9] CB 326-327
In the light of its adverse credibility finding and because of the discrepancies noted, the Tribunal placed no weight on the documentary material provided by the applicant[10].
[10] CB 327 at [142]
The application and evidence
The applicant relies upon an amended application filed on 30 January 2009. The grounds in that application are:
Ground one
The Tribunal failed to take into account a relevant consideration, and failed to give genuine, realistic, and proper consideration, to a central aspect of the Applicant’s claim, which was that the Applicant worked as a journalist for the Gujarat [D]aily, and published numerous articles with his byline attached, which supported his claims to be a Muslim activist, targeted by the authorities in India (Tickner v Bropho (1993) 40 FCR 183, at 197-199).
Particulars
1.1 A simple inquiry of the editor of the Gujarat Daily, as requested by the Applicant, would have revealed that the Applicant had worked for the Gujarat Daily as claimed.
1.2 The Tribunal’s own request that DFAT in India verify that the form of the press card held by the Applicant was consistent with the press cards issued by the Gujarat Daily newspaper had not been complied with, and could simply have been followed up.
1.3 The form of DFAT’s response to the Tribunal request that it attempt to verify these claims central to the Applicant’s case was sufficient to alert the Tribunal to an obvious obscurity or problem with the inquiries made by DFAT; the source was clearly either unco-operative or not sufficiently informed.
Ground two
The Tribunal failed to comply with section 425 of the Migration Act 1958, and failed to give the applicant a proper opportunity to appear before the Tribunal and present evidence and argument in relation to the issues upon which the case turned in refusing to accept the tender of articles written by the Applicant in the Gujarat Daily newspaper, which were relevant because they could easily have been authenticated through DFAT in India.
On 16 February 2009 I ordered the Minister to show cause why relief should not be granted in relation to those grounds, pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth).
I have before me as evidence the court book filed on 15 December 2008. I also received (over the objections of counsel for the Minister) an affidavit by the applicant made on 14 April 2009 concerning enquiries he made of the deputy editor of Gujarat Today in January this year, to which is annexed a reference in the English language, purportedly from the editor.
Submissions
The applicant relies upon the decision of his Honour Flick J in SZIAI v Minister for Immigration [2008] FCAFC 1372. The applicant contends that the question of the authenticity of the applicant’s press card and his identity as a writer of articles provided to the Tribunal was central and critical to the Tribunal’s determination of his review application. The Tribunal acknowledged this. The Tribunal considered it sufficiently important to make enquiries related to those issues through DFAT and the applicant contends that the result of those enquiries was inadequate. The inadequacy was pointed out by the applicant’s migration agent in his reply to the invitation to comment issued pursuant to s.424A. The applicant also relies upon his own affidavit as pointing to the availability of additional information in order to clarify the issues. He also submits that the Tribunal should have retained the articles he submitted.
The Minister submits that the applicant has failed to demonstrate that any additional enquiries could readily have been made which would have been centrally relevant to the issues to be determined. The Minister’s submissions point out that a DFAT officer spoke to a number of employees at Gujarat Today, including persons responsible for records management at the newspaper and was told that other staff at the newspaper knew very little about the named person who the applicant claimed to be. The newspaper staff said that they would be unable to verify the authenticity of the press identity card. It is also implicit in the DFAT response, that it was unable to verify the photograph provided by the applicant on his press identity card as genuine, that additional enquiries were made in relation to the photograph (whether or not those additional enquiries were to other staff at the newspaper or elsewhere). The Minister submits that the Tribunal’s conclusions as to the result of its enquiries were entirely logical and do not disclose any unreasonableness. The applicant himself did not provide any name or telephone number of any person at the newspaper who might be able to further assist. This is a distinguishing feature from SZIAI. Moreover, unlike SZIAI, the applicant is suggesting that the Tribunal should have undertaken the same enquiries a second time.
As to the articles presented to the Tribunal by the applicant and returned to him, even if the Tribunal had been able to verify that those articles were written by the named person and published by the newspaper, they would not have established that the applicant was that named person.
The Minister also formally submits that SZIAI was incorrectly decided and notes that the decision is under appeal in the High Court.
Reasoning
In SZIAI at [25]-[26] Flick J said:
The circumstances in which a decision of the Tribunal should be set aside by reason of a failure to make inquiries, it is acknowledged, may be a confined category of case: Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155. Wilcox J there observed at 169–70:
... The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. ...
This decision was subsequently endorsed by the Full Court: Luu v Renevier (1989) 91 ALR 39. See also: Tickner v Bropho [1993] FCA 208; (1993) 40 FCR 183 at 197–8 per Black CJ. Subsequently in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589, 173 ALR 362 at 417 Wilcox J returned to his earlier decision in Prasad and further observed:
[214] ... It will be a relatively rare case in which a statutory decision is vitiated because of the decision-maker’s failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored.
The circumstances in which an obligation may be imposed upon an administrator to make further inquiries is thus repeatedly said to be "strictly limited": Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108 at [109] per Greenwood J (Weinberg J agreeing). And the fact that it is no part of the task of the decision-maker to make out an applicant’s case is also repeatedly recognised -- it was referred to at the outset by Wilcox J in Prasad and subsequently emphasised: eg, Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369 at [50], [2002] FCAFC 369; 127 FCR 24 at 40–1 per Gray, North and Mansfield JJ.
Whether or not it is unreasonable not to make further inquiries may well depend upon the availability of further information and its importance to the factual issues to be resolved. It may also depend upon the subject matter of inquiry and an assessment of the comparative ability of individuals to provide or to obtain relevant information. There may thus be little (if any) scope for a duty upon a decision-maker to inquire into facts well known to an applicant and facts within his power to adduce: eg, Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13. In refugee cases, reference may also be made to the comparative difficulty in some circumstances confronted by an applicant seeking refugee status and the comparative ability of decision-makers to elicit further information: cf Taylor S, Informational Deficiencies Affecting Refugee Status Determination: Sources and Solutions (1994) 13 U Tas LR 43. And an assessment as to whether further inquiries should be undertaken may also take into account the importance of a decision upon an individual -- an administrative decision-making process which impacts upon an individual’s freedom or a claimed ability to live in freedom may warrant more extensive inquiries being undertaken than one, for example, where the imposition of a modest pecuniary penalty is under consideration.
The precise request made by the Tribunal of DFAT was as follows[11]:
[11] CB 243
At hearing, applicant has provided additional documents, including articles written by ‘…’ from the newspaper Gujarat Today and a press identity card, in the name of ‘…’ issued by Gujarat Today. There are two issues with the press identity card. The first is whether it appears to be consistent with other valid press IDs issued by the Gujarat Today. The second is whether the person named on the card is the same person whose photograph appears on the card. The applicant claims to be an outspoken journalist for the only Muslim newspaper in Gujarat, and a leading activist of the Muslim religion, so it is reasonable to suspect that he may have achieved some notoriety, and that some form of photograph of him may be available from a public source in Gujarat that cannot be accessed from here. . . .
Questions
1.Please check the validity of the press identity card.
2.If possible, please obtain a photograph of the person whose name appears on the press identity card.
DFAT’s initial response was as follows[12]:
Further to RRT request IND33642, post has confirmed that the applicant was with newspaper Gujarat Today for a short period four or five years ago. Post was unable to obtain a photograph of the applicant.
2. Post made enquiries at the office of Gujarat Today to verify the identity of Mr …. Gujarat Today staff informed us that Mr … worked with Gujarat Today some four to five years ago for around two months. Post did not provide the newspaper with a copy of the press identity card provided in reftel as they informed us that due to inadequate records management they would be unable to verify its authenticity.
3. Post was unable to verify the photograph of Mr …through other sources. Most staff at Gujarat Today either knew very little about him or were too new to the organisation to provide any information.
[12] CB 261
Following a request for clarification from the Tribunal the response was amended as follows[13]:
[13] CB 260
Further to RRT request IND33642, post has confirmed that a Mr … worked with newspaper Gujarat Today for a short period four or five years ago. Post could not verify the validity of the press identity card provided in reftel. Post could not obtain a photograph of the person whose name appears on the press identity card.
Cable provides post response to RRT Country Information Request IND33642.
2. Post made enquiries at the office of Gujarat Today. Gujarat Today staff informed us that a Mr … worked with Gujarat Today some four to five years ago for around two months. Post did not provide the newspaper with a copy of the press identity card provided in reftel as they informed us that due to inadequate records management they would be unable to verify its authenticity.
3. Post was unable to verify the photograph of Mr …through other sources. Most staff at Gujarat Today either knew very little about Mr … or were too new to the organisation to provide any information.
4. For your information, Gujarat Today is a non-partisan newspaper covering political and social issues. It is run by reputed NGO, Lok-Hit Sarvajanik Trust which was established in 1985 to bridge the “communal divide” caused by widespread religious unrest in that year. The Trust is managed by the Muslim community, and in addition to the newspaper is also involved charitable work such as free medical treatment camps in slum areas, educational for the poor, rehabilitiaton services to those affected by floods, earthquakes, etc. Gujarat Today is known to have raised and highlighted social issues of relevance to Gujarat.
In a submission made to the Tribunal on 12 October 2008, the applicant’s migration agent stated[14]:
The RRT admitted that on behalf of the RRT, the DFAT inquired about the applicant and they found that the person named Mr. … used to work with Gujarat Today for about two months and five years back.
However, in the very next argument made by the DFAT saying that Gujarat today employees had inadequate information about the same person. So, our request to DFAT is that reconfirm the applicant identity with owner of the “Gujarat Today” or some responsible employees of the same newspaper who is capable of answering the question posed by the RRT. The process adopted by the DFAT was not sufficient to put my identity. It was required by DFAT to attach at least photograph of the applicant.
We request to the Tribunal to call directly and to send a photograph of the applicant. Based on defect enquiry if RRT take any negative attitude towards the applicant. We believe it will be denial of procedural fairness towards the applicant.
[14] CB 283
In its reasons for decision, the Tribunal stated as follows[15]:
In his most recent submission (12 October 2008) the applicant’s representative implies that the DFAT report is contradictory or insufficient. He also claims that the DFAT is “arguing” a particular position in regard to the applicant rather than providing an impartial response. Gujarat Today staff informed DFAT that a Mr … worked with Gujarat Today some four to five years ago for around two months. They also advised that due to inadequate records management they would be unable to verify the authenticity of the press identity card submitted by the applicant. The photograph of the applicant could not be confirmed as Mr … because most staff at Gujarat Today either knew very little about Mr … or were too new to the organisation to provide any information. The Tribunal does not find the DFAT report contradictory, insufficient or partisan.The Tribunal declines the applicant’s suggestion to send a photograph of the applicant to Gujarat Today, or to ‘reconfirm’ the identity of the applicant. [emphasis added.]
[15] CB 326-7 at [137]
I agree with the Minister’s submissions on this issue. In my view, the information obtained by the Tribunal through DFAT indicated that further enquiries of the newspaper were unlikely to be productive. The position might have been different if the applicant had been able to identify a person at the newspaper who could confirm his identity and his role at the newspaper. The applicant did not identify any particular person. The Tribunal acted reasonably and within power in making the enquiries it did and was not compelled to undertake a further enquiry. The initial response received from DFAT was confusing in that it purported to state that the applicant worked at the newspaper but on a basis inconsistent with his claims. The revised report stated that the named person who the applicant claimed to be had worked at the newspaper for a short period. The information obtained did not support the applicant’s claims as to the period of his employment at the paper or his high profile status. The Tribunal was able to conclude, as it did, that the information obtained from DFAT was inconsistent with the applicant’s claims and adversely affected his credibility. The conclusions reached by the Tribunal were open to it on the material before it.
I also agree with the Minister’s submissions that this case is distinguishable from SZIAI because the Tribunal did make reasonable enquiries and, while the applicant, through his agent, complained about the information obtained, the applicant did not facilitate a further enquiry by identifying with any precision who might be able to provide more useful information. Moreover, the applicant’s affidavit, while it purports to establish that corroborative evidence was readily available from the newspaper of his role there, merely establishes that the applicant was able to obtain that corroborative evidence himself relatively easily. As was noted by Flick J in SZIAI at [26] there may be little, if any, scope for a duty upon a decision maker to enquire into facts well known to an applicant and facts within his power to adduce[16]. In the present matter, based upon the applicant’s affidavit, which I accept, the applicant has demonstrated his power to readily obtain additional facts himself to support his assertions. In the circumstances, the applicant cannot complain about the Tribunal’s failure to do what he has proven himself able to do on his own behalf.
[16] see Singh v Minister for Immigration (1985) 9 ALN N13
I reject the first ground of review.
I also reject the second ground. That asserts a failure to comply with s.425 of the Migration Act in relation to the article tendered by the applicant to the Tribunal but not accepted. The Tribunal’s reasons deal with that issue in the passage quoted above at [3]. I accept from that passage in the Tribunal’s reasons that the issue of the articles was discussed with the applicant at the hearing. In the absence of a transcript, there is an insufficient evidentiary foundation to establish a breach of s.425. Further, as was pointed out by the counsel for the Minister in her submissions, the articles in themselves did not prove anything other than the existence of the articles. They did not prove that it was the applicant who wrote them. They were also in the Gujarati language and the applicant had been put on notice that documents in other languages should be translated by a qualified translator into English[17].
[17] see CB 67
I reject the second ground of review.
I conclude that the applicant has failed to demonstrate a case of jurisdictional error by the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
As to costs, I see no reason to depart from the Court scale. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in accordance with the Court scale.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 June 2009
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