SZNBX v Minister for Immigration - [2009] FMCA 703

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNBX & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 703

MIGRATION – Review of decision of RRT – where applicant did not provide Tribunal with contact details of the witness he argued Tribunal should have made enquiries of.

Migration Act 1958, ss.36(3), 422B, 424A

Minister for Immigration v Le [2007] FCA 1318
Prasad v Minister for Immigration [1985] 65 ALR 549
SZHUH v Minister for Immigration [2008] FCA 1893
SZMCE v Minister for Immigration [2008] FCA 1803
Abebe v Commonwealth (1999) 197 CLR 510
SZMKF v Minister for Immigration [2009] FCA 173

First Applicant:

SZNBX

Second Applicant:

SZNBY

First Respondent:

MINISTER FOR IMMIGRATION &

CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 3365 of 2008

Judgment of:

Raphael FM

Hearing date:

9 July 2009

Date of Last Submission:

9 July 2009

Delivered at:

Sydney

Delivered on:

9 July 2009

REPRESENTATION

For the Applicant:

In Person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

Application dismissed.
Applicant to pay First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3365 of 2008

SZNBX

First Applicant

SZNBY

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants are citizens of Latvia who arrived in Australia on 5 April 2008 and applied to the Department of Immigration and Citizenship for protection (class XA) visas on 16 May 2008. The male applicant completed form C, but the female applicant, who claimed to be his partner, completed form D for a person who does not have their own claim to be a refugee. A delegate of the Minister declined to grant the protection visas on 31 July 2008 and on 20 August 2008 the applicants applied to the Refugee Review Tribunal for a review of that decision. The applicants were invited to and attended a hearing before the Tribunal. After the Tribunal concluded the hearing it granted the applicants further time to make some additional submissions. Further submissions were made in writing [CB 154 - 157], and the applicants asked for some more time in order to obtain information. The Tribunal declined to grant that further period of time and on 25 November 2008 affirmed the decision under review.
The grounds upon which the male applicant claimed to be a person to whom Australia owed protection obligations were that he was the subject of state persecution because he had instigated legal proceedings in Latvia for a drug conviction against him to be reviewed. He told the Tribunal that he had been arrested on 22 February 2002 after three kilograms of narcotics were found in the place where he worked. He claimed that he had been falsely accused of involvement in the narcotics trade and had confessed to this in order to save his brother, who suffered from asthma, from also being arrested and imprisoned. He was sentenced to six years imprisonment, but was released on parole on 8 January 2007. He remained in Latvia during his parole period and contacted a lawyer who agreed to file a case seeking review of the conviction.
The applicant claimed that after he commenced legal action he began to be harassed. He received anonymous threatening telephone calls and notes in his mailbox. He was beaten up by unknown people outside his apartment and was the subject of police searches, one with a warrant and one without. When he contacted the lawyer in November 2007 to ask about the case the lawyer told him there was no case, it had been withdrawn and the lawyer did not want to have anything more to do with him. He then began to make plans to leave Latvia because he feared that he would be the subject of further problems from the state. The second‑named applicant was questioned by the Tribunal about her own claims to be a refugee because of the fears which she had as a result of the actions taken against her partner.
The Tribunal asked the applicant whether he had any corroborative evidence about the filing of the court case and whether he could provide the Tribunal details about the court in which it was filed. This the applicant could not do. He said he could tell the Tribunal everything that was said in the court documents and he suggested to the Tribunal that the Tribunal should contact his lawyer. He told the Tribunal he had the lawyer's contact details and that the Tribunal could make a phone call, but he never actually provided those contact details to the Tribunal. During the course of the Tribunal hearing, according to an affidavit filed in court on 9 July 2009, the following conversation took place:
“Tribunal: Do you have a copy of the application that went to the court?
Applicant: No, I do not have it, but I remember ...
Tribunal: No, I actually want to see the document. Can you contact your lawyer and get him to send a copy of any papers that you lodged with the court?
Applicant: The problem is that the lawyer does not want to keep in touch with me now, he just refused to have any contact with me now.
Tribunal: Wait. So there is no court case?
Applicant: I do not have any papers on my hands but I can give you the contact number. Maybe you will be able to talk to that person. He will be able to provide the evidence.
Tribunal: That is not my question. Is there actually a court case currently before the court in Latvia regarding this matter?”
It is my understanding that the applicant confirmed that there was no longer a court case. At a later stage in the interview the following conversation took place between the applicant and the Tribunal:
“Application: You know what I can do? I can give you the number of that lawyer, you can contact the lawyer, you can contact the court.
Tribunal: You told me that there is no case. They would not speak to you. What am I supposed to do? trying ... I am beginning to have serious doubts that there is a court case or that there was a court case. I'm beginning to think that you have just made all these things up to support your application ...”
Later:
Tribunal: It is not really my job to make your case for you. You need to do that yourself. You should have ... if there was such a court case you really needed to get some information to back your claims.”
In the letter which the applicant wrote to the Tribunal following the hearing, the applicant said:
“You also said that I did not provide you with any evidence. You said that you had no information about the lawyer and about the court case. You also said that it is up to me to provide the Tribunal with evidence. I must say, as a person who is about to make a decision on my case you can and should contact the lawyer to verify my accounts. I am aware there is a department within the Tribunal which was established to verify such matters. I said and I am saying again - I authorise you, moreover I ask you to contact my lawyer. There is no point for me to contact him, because he will not provide me with any written evidence. However, if you contacted him he would confirm that he lodged application with the court, that I have been subjected to harm and the reason the case disappeared. It is just one phone call and I do not think it is difficult for the Tribunal, for you to make such a phone call to find out the truth.”
I notice that in that paragraph there is no provision of details of the lawyer for the Tribunal to have utilised if it had decided to make the phone call requested.
There was considerable discussion between the Tribunal and the applicant concerning the rights of the applicant to reside in other EU countries. However, this did not form the basis of the Tribunal's decision. The Tribunal concluded that the applicant's claims lacked credibility:
“[61][I]t has considered their core claims, relating to the alleged court case in 2007, and it finds the applicants' fabricated their core claims to enhance their protection visa applications.
[62]The Tribunal has formed the view that if indeed the applicants had initiated Court proceedings as they claim, even if that court case no longer exists, they would have had some documents relating to the case and more information regarding the court where the case was allegedly filed. The applicants claim it was too dangerous for them to have or transport documents relating to the case. However, the Tribunal has formed the view that the applicants have no documents, and only vague information regarding the Court where the alleged Court case was filed because there was no Court case and they did not instigate any legal action in Latvia against the police, the authorities or the government. The Tribunal finds these claims are fabricated by the applicants to enhance their protection visa applications and it does not accept as credible the applicants' claims that they instigated any action against the individual police officers, government officials, the authorities or the government of Latvia.
[63]The applicants have asked the Tribunal to contact their lawyer and the courts in Latvia to verify their claims. However, they did not provide any information to the Tribunal regarding the lawyer or the courts in Latvia which enables the Tribunal to conduct further investigations or verify their claims.”
On the basis of these findings, the Tribunal concluded that the applicants were not persons to whom Australia owed protection obligations and that they did not face a real chance of serious harm from the police or the authorities or the government or anyone else in Latvia for the essential and significant reason of one or more Convention grounds.
On 19 December 2008 the applicant filed an application with this court. There were five grounds. The first three related to the claimed failure by the Tribunal to contact the lawyer. Grounds 4 and 5 related to alleged breaches of s.424A(1) of the Migration Act 1958 (the “Act”). At hearing, the applicant provided the court with a written statement in English and the affidavit to which I have previously referred of extracts from the transcript. Although Mr Reilly had not had an opportunity to listen to the transcript tape he accepted the affidavit for the purposes of the hearing. I have extracted the contents of the affidavit in full in these reasons.
The gravamen of the applicants' submission is that the Tribunal failed to contact the lawyer even though he had the lawyer's contact details and could have provided them to the Tribunal. The respondent's reply to this is that, in fact, the applicant never gave the contact details to the Tribunal so that it was unable to contact the lawyer even if it had wished to do so. This is what the Tribunal said in its decision. In Minister for Immigration v Le [2007] FCA 1318, Kenny J gave detailed consideration to the question of a Tribunal making inquiries. It considered the views expressed by Wilcox J in Prasad v Minister for Immigration [1985] 65 ALR 549. Her Honour accepted that it was only in rare or exceptional cases where a decision maker acting reasonably would have made some further inquiries before making a decision [Le at 77]. In SZHUH v Minister for Immigration [2008] FCA 1893 Perram J said:
“[11]Sections 424 and 427(1)(d) of the Act both permit the Tribunal in its discretion to make further inquiries. However, it has been held that those provisions do not impose, generally speaking, any duty upon the Tribunal to make such inquiries. It may be that the decision of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs[1985] FCA 47; (1985) 6 FCR 155 provides the basis for an argument that in certain circumstances the existence of material which clearly calls for explanation or reconciliation may, as a matter of procedural fairness, generate a duty upon a decision-maker to make further inquiries.”
But his Honour went on to suggest that the principle in Prasad may not have survived the enactment of s.422B of the Act notwithstanding the later decisions such as Le and SZMCE v Minister for Immigration [2008] FCA 1803.
I cannot see that this is one of those cases where the need for further inquiry is so obvious and that no impediment to the conduct of the inquiry is apparent, that the failure of the Tribunal to proceed without making the inquiries constitutes such unreasonable conduct as to invoke the dicta in Prasad or the other cases to which I have referred. The applicant has a responsibility to make his own case and to provide sufficient information to the Tribunal that would enable the Tribunal to come to the requisite state of satisfaction (Abebe v Commonwealth (1999) 197 CLR 510). The very least the applicant could have done in this case was to provide the Tribunal with the details of the lawyer, and he did not do that. But I think that, in any event, the applicant is mistaken when he argues that the failure to provide these details was the sole ground for the Tribunal's decision. It will be clear from the extracts from the Tribunal's decision that I have referred to in these reasons that it was not only the failure to provide the lawyer's details but the failure of either applicant to provide any details of the court to which this complaint had been made and the nature of the complaint. In the end, the decision of the Tribunal was one concerning credibility, which is, of course, a matter for the Tribunal "par excellence". The Tribunal has explained why it did not believe the applicants. It is not for this court to interfere.
Because of the manner in which the Tribunal reached its decision there is no discussion of s.36(3) of the Act. I would note, however, that if that matter did fall to be considered, the applicant had not given any evidence of any attempt by him to enter or reside in another country within the European Community and thus it would not fall to the Tribunal to consider the provisions of that section. (see SZMKF v Minister for Immigration [2009] FCA 173).
The applicants also made claims concerning s.424A but did not define the information. Mr Reilly says that if the information is that he had not provided the contact details to the Tribunal, then that constitutes no more than the Tribunal's thought processes and not information about the applicant which would be the subject of the subsection. The applicant told me that the information was any information that would be helpful to his case, but this is not the statutory test. In these circumstances, I am unable to accede to the applicant’s request that the Tribunal's decision should be reviewed. I dismiss the application. I order that the applicant pay the first respondent's costs in the sum of $5,000.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 22 July 2009