SZNOL v Minister for Immigration & Anor

Case •

[2009] FMCA 721

•

28 July 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNOL v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 721
MIGRATION – Review of decision of Refugee Review Tribunal – no bias – Tribunal properly considered evidence – weight to be attributed to evidence is a matter for Tribunal – section 424AA engaged and complied with – obligation under s.424A relieved – Tribunal ensured as far as was reasonably practicable that the applicant understood the relevance and consequences – no jurisdictional error – application dismissed.
Migration Act 1958 (Cth), ss.424AA, 424A, 430
Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157
SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; [2003] 131 FCR 102
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Aboriginal Affairs v Peko -Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46
Applicant: SZNOL
First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1078 of 2009
Judgment of: Nicholls FM
Hearing date: 21 July 2009
Date of Last Submission: 21 July 2009
Delivered at: Sydney
Delivered on: 28 July 2009

REPRESENTATION

Appearing for the Applicant: In person
Solicitors for the Applicant: Nil
Counsel for the Respondents: Mr T Reilly
Solicitors for the Respondents: DLA Phillips Fox

ORDERS

  1. The application made on 4 May 2009 is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $5,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1078 of 2009

SZNOL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 4 May 2009 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 8 April 2009, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

  1. The following background can be derived from the bundle of relevant documents (the Court Book – “CB”) which was put before the Court by the first respondent in this matter.

  2. The applicant is a citizen of Togo who arrived in Australia on 10 July 2008. He applied for a protection visa on 25 August 2008 (CB 1 to CB 26). His claims were initially set out in a statement (CB 27 to CB 28). The delegate refused the application on 20 November 2008 (CB 66 to CB 77). The applicant applied for review on 12 December 2008 (CB 79 to CB 82).

  3. The applicant was assisted before the Tribunal by the Refugee Advice and Casework Service (“RACS”), which made representations on his behalf, and submitted documents in support of his claims, including a statutory declaration of the applicant (CB 92 to CB 122).

  4. The applicant appeared at a hearing before the Tribunal and gave evidence on 26 February 2009 (CB 123). His representative was present. The Tribunal’s account of what occurred at the hearing is set out in its decision record (see [25] at CB 220 to [45] at CB 223).

  5. During the hearing, the Tribunal put certain concerns that it had with the applicant’s evidence to him “pursuant to section 424AA” (see [39] at CB 223). The applicant’s representative stated that she wanted the Tribunal’s “questions in writing” (see [44] at CB 223).

  6. Following the hearing on 6 March 2009, the Tribunal wrote to the applicant “pursuant to section 424AA” (see [46] at CB 223 to CB 225, and CB 133 to CB 135). It responded to a request from the representative and clarified some issues by letter dated 24 March 2009 (CB 175). The applicant ultimately responded by letter on 25 March 2009 (CB 178 to CB 197) and further on 2 April 2009 (CB 199 to CB 201).

Claims to protection

  1. The applicant claimed to fear persecution in Togo for the Convention reason of political opinion. The applicant’s claims were that he was a supporter of the opposition Union of Forces for Change (“UFC”) party. He feared harm from members of the ruling Rally for the Togolese People (“RPT”) party. He claimed to have been detained and physically harmed.

  2. The applicant also claimed to fear harm from members of his family. The applicant’s father was said to be involved in the security of the President of Togo (who was his uncle) and had a number of “wives”. Following his father’s death (which was subsequently said by the applicant to be suspicious because of what turned out to be his father’s hitherto unknown support for the opposition party) the applicant and his “full” siblings were subjected to even greater levels of harassment and harm from, in particular, one of his father’s “wives” and children.

  3. The applicant claimed to have been assisted by a number of Catholic priests, one of whom assisted him to come to Australia as a Catholic “World Youth Day” pilgrim.

  4. The applicant claimed to fear harm from the RPT party, and its supporters, and from family members if he were to return to Togo. This was said to be particularly so because presidential elections were due in 2010 and he feared political violence would increase in the lead up to the elections.

The Delegate

  1. The delegate found that the harm feared from the applicant’s family, even though some may have opposed the applicant’s support for the UFC, fell outside the “scope” of the Convention (CB 72.8). The delegate found the applicant’s claims about his father’s true political affiliation to be “entirely implausible” (CB 73.5). The delegate also found, based on country information, that: “there is no independent evidence to suggest that the applicant is at risk of Convention-based harm by the authorities for his political opinion” (CB 77.5).

The Tribunal

  1. The Tribunal did not accept the applicant’s claims of past events in Togo because it found that he was unable to provide “plausible explanations in relation to substantial parts of his claim[s]” and that “his evidence continued to change throughout the course of the application” ([53] at CB 236). It set out its findings in support of this conclusion ([54] at CB 236 to [57] at CB 238). It rejected the factual basis for his claims ([58] at CB 238).

  2. In reaching its conclusion, the Tribunal noted that it considered:

    1)Opinions as to the applicant’s “psychological state” provided at the applicant’s initiative from the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”). The report was drafted on 24 September 2008 (CB 34) and 24 February 2009 (CB 121 to CB 122). The Tribunal did not give any weight to this report as supporting what was said to have happened in Togo.

    2)Letters from the applicant’s family, letters from two priests, a letter from another person, and photos submitted by the applicant. The Tribunal did not see these documents as having “sufficient weight” to “overcome its concerns about the applicant’s credibility” (see [59] at CB 238).

Application before the Court

  1. The application filed on 4 May 2009 puts forward the following three grounds:

    “1. Ostensible bias by the RRT member.

    2. Failure to properly consider evidence.

    3. Error in 424A letter from the RRT, as it failed to explain why certain information was relevant to the review.”

    [No particulars have been provided.]

Hearing before the Court

  1. At the hearing before the Court the applicant appeared in person. He was assisted by an interpreter in the French language. Mr T Reilly of Counsel appeared for the first respondent.

  2. No written submissions have been received from the applicant. The Court also has before it the Minister’s “Response”, and written submissions filed on his behalf.

  3. The applicant:

    1)Submitted that he was not in agreement with the Tribunal’s decision.

    2)Submitted that in his “opinion”, the Tribunal did not consider his evidence. I understood this to be a reference to the letters from the priests, and members of his family, and the “pictures”. After being referred to paragraph [59] of the Tribunal’s decision record, the applicant explained that his complaint was that “not enough weight” had been given to the documents.

    3)Sought to explain what appeared to be some of the discrepancies in his claims (regarding his education history and some of his evidence relating to presidential elections).

    4)Challenged the Tribunal’s adverse finding as to his credibility (“I know I am credible”).

Ground One: Ostensible Bias

  1. Ground one asserts “ostensible bias” by the Tribunal member.

  2. It is well settled that allegations ofbias, or even the apprehension ofbias, are serious charges to make against any decision maker. They must be clearly made and distinctly proved (Minister for Immigration Multicultural Affairs v Jia (2001) 205 CLR 157, SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 at [43] to [44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

  3. It is rare that such an allegation can be made out with reference to the decision record alone (see VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; [2003] 131 FCR 102).

  4. The Tribunal has reached a decision with which the applicant disagrees. He is particularly aggrieved by the Tribunal’s finding as to his lack of credibility. But this, on its own, does not form any basis for establishing bias on the part of the Tribunal.

  5. The Tribunal explained that it rejected the factual basis of the applicant’s claims because it found him not to be credible. The Tribunal gave comprehensive reasons for this. The Tribunal’s findings in this regard were, as Mr Reilly submits, “findings of fact par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 per McHugh J at [67]).

  6. The applicant’s complaint in ground one (and as more generally expressed before the Court), in reality, seeks to challenge the Tribunal’s findings of fact. This Court cannot intervene to substitute its own findings in this regard (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

Ground Two: Failure to Properly Consider Evidence

  1. The application does not offer particulars as to what evidence the Tribunal is said to have not properly considered. The Tribunal’s obligation, of course, is to consider all of an applicant’s claims, including each integer of such claims. In its decision record, however, the Tribunal does not have to refer to all pieces of evidence before it, but only that evidence which can be said to be: “evidence or any other material” on which its findings of fact are based (see s.430(1)(d) of the Act).

  2. In any event, the applicant ultimately explained before the Court that the Tribunal failed to properly consider the documentary evidence that he had provided because it did not accord “enough weight” to his documents (see [18] above).

  3. This ground, as particularised by the applicant, does not succeed.

  4. First, the Tribunal plainly did turn its mind to these documents (see [59] at CB 238). Second, the weight, sufficient or otherwise, to be accorded to such documentary evidence is for the Tribunal to assess (Minister for Aboriginal Affairs v Peko -Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 per Mason CJ). Third, the Tribunal did not reject this material as, for example, being fabricated.

  5. In relation to the psychological report, it was plainly open to the Tribunal to find that while the report was evidence of the applicant’s psychological condition, it was of no assistance in evaluating the factual claims and claimed events in Togo, because the psychologist’s conclusions were based solely on what the applicant had told him.

  6. As to the other documents and photographs, the Tribunal gave them some weight. But the weight it accorded was not “sufficient” to overcome its concerns as to the applicant’s credibility. This was open to the Tribunal on what was before it, and for which it gave reasons.

  7. I cannot see error in how the Tribunal approached this matter. It did not fail to consider this evidence. It simply was not such as to persuade it conclusively to find for the applicant in light of his other evidence.

Ground three

  1. Ground three in the application alleges “error in the s.424A letter” because it is said that the letter failed to explain why the information was relevant to the review. This appears to be a reference to the Tribunal’s letter of 6 March 2009 (CB 133 to CB 135). (There is no other letter in the Court Book that possibly could fall into this category.)

  2. First, as Mr Reilly submitted, this letter should not be understood as being sent “pursuant to s.424A”. At the hearing the Tribunal said that it had concerns about the applicant’s evidence and that it “put those” concerns to him “pursuant to s.424AA” ([39] at CB 223). It was the applicant’s adviser who then requested that these concerns be put in writing after the hearing ([44] at CB 223).

  3. Section 424AA provides one mechanism by which the Tribunal may put particulars of information that it considers would be the reason or part of the reason for affirming the decision under review to an applicant. That is, to put such information “orally”. The relationship between s.424AA and s.424A has been held by a Full Federal Court to be complimentary in nature. I note what was said by Moore J in SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46 (“SZMCD”) about the complimentary relationship between s.424A and s.424AA:

    “It cannot be doubted that s 424AA and s 424A are intended to be complementary. This is obvious from the legislative history and the terms of both sections. The former section, if complied with, relieves the Tribunal of the duty imposed by the latter. If there is no obligation to provide particulars under s 424A, then s 424A(2A) has no field of operation having regard to the opening words of that subsection, which presupposes the existence of such an obligation. Section 424AA is, in my opinion, clearly not intended to create a duty to take particular steps independently of the existence of a duty under s 424A ...”

  4. That is, s.424A must first be engaged before any failure to comply with s.424AA will amount to jurisdictional error. The relationship between the two sections is that the Tribunal need not comply with s.424A if it elects to comply with, and does fully comply with, s.424AA (with reference to s.424A(2A)). That is, it is “facultative” (see SZMCD at [90]) by providing a means of achieving compliance with s.424A.

  5. In utilising s.424AA, the Tribunal must (s.424AA (b)(i) to (iv)):

    1)Ensure, as far as is reasonably practicable, that the applicant understands both the relevance of the information to the review, and the consequences if it was to be relied upon by the Tribunal.

    2)Orally invite the applicant to respond.

    3)Advise that the applicant may seek additional time within which to do so.

    4)If the applicant seeks additional time, adjourn the review to enable the response to be made.

  6. It was in this context that the Tribunal orally put its concerns to the applicant at the hearing. It then adjourned the review when the adviser stated that she “wanted the questions in writing” (see [39] to [44] at CB 223).

  7. The Tribunal complied with the adviser’s request (see [46] at CB 223 and CB 133 to CB 135) by letter dated 6 March 2009. The Tribunal clearly considered that the applicant had requested additional time to comment and in adjourning the review, it gave him until 24 March 2009 to provide his comments.

  8. Notwithstanding that the adviser referred to the Tribunal’s letter as the “s.424A letter” in the letter from RACS of 18 March 2009 (CB 162 to CB 163), it was clearly sent in response to the Tribunal’s letter of 6 March 2009. This letter sought to “clarify some matters” and asked for an extension of time within which to respond (3 April 2009). The Tribunal considered the request for an extension and refused it (CB 167). An answer was provided by the Tribunal to the request for clarification (CB 172 and CB 175). The adviser ultimately sent the applicant’s response to the Tribunal’s letter on 25 March 2009 (CB 178 to CB 183, with annexures to CB 197). A further response was sent on 2 April 2009 (CB 199 to CB 201).

  9. The Tribunal took the applicant’s responses into account (see [48] at CB 226 at [50] at CB 235).

  10. The applicant’s complaint now is that the Tribunal’s letter of 6 March 2009 failed to explain why the information was relevant to the review. In context, therefore, this should be seen as a complaint that the Tribunal failed to comply with s.424AA(b)(i). (In any event, the wording here is similar to what is set out at s.424A(1)(b).)

  11. The applicant’s complaint does not succeed, irrespective of whether a breach of s.424AA(b)(i) or s.424A(1)(b) is being alleged. The relevant obligation on the Tribunal is not to be seen as imposing a subjective test. That is, whether the applicant actually understands the relevance and consequences. The Tribunal’s obligation is to “ensure” that as far as it is “reasonably practicable”, the applicant understands.

  12. The Tribunal’s letter is in plain terms (CB 133 to CB 135). Each item of concern is followed, in bold type, with what, in my view, are very clear statements as to the relevance of each item to the review and to the consequences if the Tribunal were to rely on each item.

  13. I do not see the adviser’s subsequent letter seeking to “clarify” (CB 162) as detracting from this. I agree with the Tribunal’s assessment (CB 175), that two of the three items of clarification were more properly seen to be in the nature of submissions.

  14. The third (item 2) relevantly reads: “… was not enough to stop the army coming after him”. The reference to “him” should read as “you”. That is: “… even though you were no apparent threat”. This was clearly, at best, a typographical error. Given the reference to the “second” “you” in the sentence, the meaning was clear that the reference was to the applicant. Clearly, that is how the adviser read it in seeking to “clarify”.

  15. The applicant’s complaint, therefore, does not succeed. The Tribunal’s letter met the requirements of s.424AA(b)(i). But even if regard were had to s.424A (as stated in the application) in this context, the complaint would still not succeed. As referred to above, “the complementary” part of s.424A is in similar terms to s.424AA(b)(i). Any complaint in this context fails for the same reasons as above.

Conclusion

  1. The Tribunal provided the applicant with the opportunity at a hearing to explain, and enhance, his claims and to put evidence before it. He was assisted in this process by his adviser. The Tribunal put the applicant on notice of the issues determinative of the review, and gave him the opportunity to comment (see [33] at CB 221 to [38] at 223). The central issue was the Tribunal’s concern as to the plausibility and credibility of events in Togo. An issue which, in any event, can be seen to have arisen from the delegate’s decision (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592).

  1. Further, the Tribunal put certain information which informed its concerns to him utilising s.424AA (see [39] to [44] at CB 223). The Tribunal gave the applicant time to respond and provided its “concerns” in writing to him as requested.

  2. The Tribunal found adversely to the applicant’s credit. This conclusion and the findings in support of it were clearly open to the Tribunal on what was before it. It gave cogent reasons.

  3. For the applicant to succeed, the Court would need to discern jurisdictional error (at least) in the Tribunal’s decision. As no such error is evident, this application is dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  C Darcy

Date:  28 July 2009

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