SZNXT v Minister for Immigration
[2010] FMCA 320
•21 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNXT & ORS v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 320 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – merits review not available in judicial review proceedings – allegation of bias not proved – Tribunal not obliged to cite every piece of information which comes before it – Tribunal’s doubts are not “information” for s.424A purposes. |
| Migration Act 1958, ss.424A, 425, 430, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 Re Refugee Review Tribunal; ex part H (2001) 179 ALR 425 Johnson v Johnson (2000) 201 CLR 488 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 |
| First Applicant: | SZNXT |
| Second Applicant: | SZNXU |
| Third Applicant: | SZNXV |
| Fourth Applicant: | SZNXW |
| Fifth Applicant: | SZNXX |
| Sixth Applicant: | SZNXY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2310 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 5 May 2010 |
| Date of Last Submission: | 5 May 2010 |
| Delivered at: | Sydney, Adelaide (by video-link) |
| Delivered on: | 21 May 2010 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2310 of 2009
| SZNXT |
First Applicant
| SZNXU |
Second Applicant
| SZNXV |
Third Applicant
| SZNXW |
Fourth Applicant
| SZNXX |
Fifth Applicant
| SZNXY |
Sixth Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are citizens of Sri Lanka. The first applicant claims that, while in Sri Lanka, he was a successful and well known businessman amongst the Tamils and Sinhalese in Colombo. He claims that following the 2001 Tamil Tiger (“LTTE”) attack on the Colombo international airport he, along with many other Tamils, were investigated by the authorities and accused of being LTTE collaborators. He claims that the authorities are searching for him and plan to kill him if he returns to Sri Lanka.
The first applicant claims to fear persecution in Sri Lanka because of his imputed membership of the LTTE. His wife and children, who are the remaining applicants, have not made separate claims of their own. Henceforth in these reasons, the first applicant will be described as the applicant.
After his most recent arrival in Australia on 24 November 2008, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 1 May 2009. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 10 of the Tribunal’s decision (Court Book (“CB”) pages 151 – 157).
The applicant made the following claims in a statement dated
16 December 2008 attached to his protection visa application:
a)he is a Sri Lankan Muslim;
b)he use to own a successful computer business in Negambo and was well known among the Tamils and Sinhalese in Colombo. Most of his customers were Tamil;
c)many Tamils and Muslims were taken for investigation following the 2001 LTTE attack on the international airport at Colombo. The area around Negambo, being close to the airport, was subject to particular scrutiny.
d)he was accused by the authorities of being a Tiger and was sent to prison with other Tamils. They beat him, questioned him about selling computers to Tigers and ordered him to identify LTTE collaborators. He was released when his wife and parents called a Muslim Member of Parliament but only on the condition that he assist the authorities with their investigations and not leave the country. Between 2000 and 2001, he was frequently called to the police station to provide details of his customers;
e)after a peace accord was signed in February 2002 the authorities stopped visiting him. His computing business began to expand with the help of his workmate, a Mr A, who introduced many new Tamils to the business;
f)in 2006 negotiations between the government and the LTTE came to a standstill and police officers began to visit and question him again. He was arrested and detained as an LTTE collaborator in about December 2006. However, two Tamil speaking men who were with the police officers agreed to help him after he paid them a bribe. They took him home instead of to detention as ordered and told him that he would have to pay them more in the future. The applicant immediately made plans to leave the country permanently;
g)he left Negambo and moved in with a friend before leaving for Australia. His family, with the exception of his son who was studying in Colombo, joined him later in Australia;
h)in September 2007 he returned to Colombo as his father was ill and his son missed him. Mr A told him that it was safe to come because people thought he had left the country. Even so, he could not stay any longer than he did as officers were doing sudden cordon operations in search of LTTE cadres;
i)he returned to Australia but, at his father’s urging, left his son in Sri Lanka to finish studying. His father died a month later but he feared returning for his father’s funeral; and
j)in November 2008 he returned to Sri Lanka as he was concerned about his business and his son. A senior employee who had been arrested and questioned by the authorities told him that Mr A was found to have been involved with LTTE members in Colombo and to have had links with the abduction and disappearance of paramilitaries. Police officers believed that Mr A and the applicant had joined the LTTE and were hiding in Colombo.
The applicant made the following additional claims at a hearing before the Tribunal:
a)his wife and children moved out of the family home at the end of 2006 because of the applicant’s “problems”. They stayed with his wife’s brother about 45 kilometres from Colombo;
b)he moved around as the police were looking for him but, for the most part, lived with a friend;
c)he knew generally about the availability of protection visas before he came to Australia but did not intend to apply for one when he came here in 2007. He had problems at the time but thought that they would cease and he only decided after his last visit in 2008 that he would not return to Sri Lanka (and the fact that his statement said otherwise was a mistake on his lawyer’s part). He later said that he did not have any problems in Sri Lanka in September 2007, that he thought he could return there safely because Mr A promised to help him and, later, that Mr A had influence with the authorities;
d)he returned to Sri Lanka in September 2007 because his father was seriously ill, because he had lost some income and wanted to check on his business and because he was separated from his family;
e)he returned to Sri Lanka in 2008 because his son was suffering and his wife’s brother’s friend, who was a provincial council member, said that he would safeguard him. When he returned to Australia he brought his son;
f)he had no problems exiting and re-entering Sri Lanka because Mr A, his brother-in-law and a powerful minister helped him. He told his lawyer about this only “lightly” and, again, the fact that it is not in his statement is a mistake;
g)he left his wife and children in Sri Lanka, including his son until November 2008, because it was he who was wanted by the authorities and he was concerned about himself. He left his son there to study because he thought it would be difficult for him to study the Arabic language in Australia; and
h)his mother told him that the police recently came to the house to search for him and that they will kill him if they find him.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the applicant’s evidence concerning his departure from Sri Lanka in March and September 2007 was inconsistent:
i)in his written statement to the department he made a number of claims which referred to his fear of being in Sri Lanka in or around September 2007. He also claimed that after his arrest and detention in 2006 he immediately made plans to leave Sri Lanka permanently. However, when the Tribunal expressed concern about why the applicant returned to Sri Lanka on two occasions after leaving there in March 2007 if he was afraid he would be harmed, the applicant told the Tribunal that he did not have any problems in September 2007 and it was only on the second occasion when he returned to Sri Lanka (i.e. in November 2008) that he thought he would be killed;
ii)when the Tribunal pointed out that his evidence at the hearing was different from the evidence in his statement, the applicant then said that in 2007 it was his intention to return to Sri Lanka when his problems ceased, not to leave permanently, and that his lawyer had made a mistake in his statement;
iii)he claimed that his friend and business associate, Mr A, helped him in 2007, however, he did not reasonably explain how his friend could help him. The applicant had initially said that Mr A had problems with the authorities himself only to claim later that Mr A had influence with the authorities; and
iv)when the Tribunal queried how the applicant managed to exit and re-enter his country on the occasions that he did, given that he was of interest to the authorities, he claimed that a powerful minister assisted him. He agreed that he had not made this claim before but said that he “lightly” told his lawyer about it and the fact that it was not in his statement was a mistake;
b)in the Tribunal’s view, the applicant would not have returned to Sri Lanka in September 2007 and again in November 2008 had he genuinely feared harm in 2006/2007. The Tribunal found that his explanations for why he returned there, twice, were not reasonable given the serious claims that he made for leaving Sri Lanka in the first place, including very serious claims that the authorities thought he was linked with the LTTE and the earlier LTTE bombing of the airport and had questioned him about it;
c)in the Tribunal’s view, had the applicant suffered the very serious difficulties which he claimed he had in 2006, 2007 and previously, he would have claimed protection in Australia earlier than he did, in January 2009;
d)the Tribunal did not accept that the applicant was of interest to the authorities at any time in Sri Lanka for the reasons he claimed. Having had regard to the country information, the Tribunal considered that if the authorities in Sri Lanka were interested in the applicant to the extent that he claimed, he would have had difficulty entering and leaving the country using his passport and visa;
e)the Tribunal did not accept that the applicants were required to relocate within Sri Lanka because of problems the applicant had with the authorities. The Tribunal found that this claim was not consistent with the following matters:
i)the applicant’s wife and children moved to the second applicant’s brother’s house which was only 45 kilometres away from their usual family home;
ii)the applicant left his whole family in Sri Lanka until December 2007; and
iii)he and the second applicant left their eldest son in Sri Lanka to study until November 2008 because he might not have been able to pursue his Arabic studies in Australia;
f)the Tribunal did not accept as genuine the applicant’s claim that he left and could not return to Sri Lanka because of his religion or because he is Muslim and in a minority group as he did not make this claim before the Tribunal despite being given the opportunity to do so; and
g)overall, the Tribunal found the applicant’s evidence about why he left and could not return to Sri Lanka to be unreliable and inconsistent. Further, the Tribunal considered that he modified his evidence in an attempt to explain difficulties that were raised with him about his claims.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
1)The Tribunal completely disregarded the fear the Applicant had when he fled the country finally and constantly manipulated the questions put towards the Applicant in order to confuse the Applicant made an unreasonable procedural error and thus made a jurisdictional error.
2)The Tribunal knowingly and with bias failed to consider the submissions made by the Applicant in relation to the original claims and the reasons given therein and with an ulterior motive to rejected the Applicant’s claims and thus made a jurisdictional error.
3)The Tribunal made a jurisdictional error by not giving the Applicant an opportunity to explain in writing any doubts the Tribunal had. The Tribunal failed to comply with procedural fairness and thus made procedural and jurisdictional error.
4)The Tribunal made an error in law in not accepting the Applicant as a Tamil speaking Muslim wishing to return back to his country in any point of time when a peace deal is reached and continued to make erroneous findings as to his intention to return back to his country and thus made a jurisdictional [sic].
At the hearing in these proceedings the applicant also alleged that he had been unable to present his case properly before the Tribunal because of inadequate interpreter services and that, in any event, the Tribunal did not understand his fear.
Application ground 1
The first ground pleaded in the application, together with the related matters found in the applicant’s written submissions, amount to allegations that the Tribunal:
a)disregarded the applicant’s fear;
b)ignored the applicant’s detailed statement of claim;
c)failed to clarify the details provided in the statement of claim;
d)repeated the decision of the delegate; and
e)manipulated its questions to confuse the applicant.
The allegation that the Tribunal disregarded the applicant’s fear assumes that the Tribunal found that the applicant was afraid of returning to Sri Lanka, but this is not so. The Tribunal did not accept as true that the applicant was of interest to Sri Lankan authorities at any time for the reasons that he claimed or that he feared harm there for the reasons that he claimed. To the extent that this allegation is a challenge to that finding, it cannot succeed because the Court is not empowered in judicial review proceedings such as these to review the Tribunal’s findings of fact on such issues.
Nor can the allegation that the Tribunal ignored the applicant’s statement of claim, which accompanied his protection visa application form, be made out. It is apparent that the Tribunal summarised the statement of claim in some detail in para.21 of its decision record. Further, in its reasons for decision the Tribunal expressly referred to that statement of claim, albeit principally to identify inconsistencies between it and the oral evidence which the applicant gave at the Tribunal hearing.
Although the applicant alleges that the Tribunal failed to clarify the details provided in the statement of claim, he has not pointed to any aspect of this statement which might have required clarification. The allegation that the Tribunal failed to clarify the details of that document appears, from the applicant’s written submissions, to proceed on the basis that, had further questions been asked, any confusion or misunderstanding would have been resolved with the result that the applicant’s claims would have been accepted. However, the Tribunal had no obligation to ask any particular question and its decision record discloses no confusion on its part concerning what the applicant was claiming. Further, if the applicant thought that some aspects of the statement of claim warranted clarification, it was for him to supply that clarification.
In any event, this allegation is no more than a disagreement with the Tribunal’s conclusions on the merits of the application. The fact that the Tribunal preferred some evidence over other evidence and identified the existence of inconsistencies in the applicant’s claims does not amount to confusion or misunderstanding. But, even if it did, incorrect findings of fact of the sort implied by the applicant are errors within jurisdiction which cannot be reviewed in proceedings such as these.
The suggestion that the Tribunal simply repeated the decision of the delegate, a matter alleged in the applicant’s written submissions, cannot be substantiated on the facts. It is apparent from the Tribunal’s decision record that it set out in considerable detail the factual allegations made by the applicant and then proceeded, in similar detail, to consider those allegations together with independent country information. It cannot seriously be doubted that the Tribunal reached its own conclusions based on its perception of the facts and the reasoning articulated in its decision record. The suggestion that the Tribunal merely repeated the delegate’s decision, with the accompanying implication that it had not properly discharged its review function, cannot be accepted.
As to the allegation that the Tribunal asked questions in order to confuse the applicant, this may refer to the matters which the Tribunal put to the applicant pursuant to s.425 of the Act. These exchanges dealt with concerns which the Tribunal had with the versions of events which the applicant had proffered and which might have amounted to issues determinative of the review. The Tribunal was obliged to put such matters to the applicant and the fact that they may have caused him some difficulty does not amount to an attempt to confuse him. In any event, as no transcript of the hearing is before the Court, the only evidence relevant to this allegation is that contained in the Tribunal’s decision record and, based on this, there is no factual basis for concluding that such questions as the Tribunal asked had the effect, let alone the intention, of confusing the applicant.
In his written submissions the applicant points to conflicts in the evidence and suggests that the Tribunal should have preferred one version of events over another. The Tribunal is entitled to accord whatever weight it sees fit to any particular aspect of the evidence. The fact that it preferred some evidence over other evidence is an unreviewable aspect of the fact finding obligations reposed in the Tribunal.
For all these reasons, the first ground pleaded in the application is not made out.
Application ground 2
In the second allegation made in the application the applicant alleges that the Tribunal:
a)was biased;
b)failed to consider the applicant’s submissions; and
c)with an ulterior motive rejected his claims.
The applicant has put no evidence before the Court to substantiate the very serious allegation of bias. Such allegations must be distinctly made and clearly proved: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 [69]. That has not happened here. No evidence of the conduct at the Tribunal’s hearing, other than the summary which appears in its decision record, is available to the Court. There is no other evidence upon which the Court might rely when considering whether a fair minded lay observer properly informed as to the nature of the proceedings, the matters in issue and the conduct which might give rise to an apprehension of bias might reasonably apprehend that the Tribunal might not have brought an impartial mind to the resolution of the review before it: Re Refugee Review Tribunal; ex part H (2001) 179 ALR 425; Johnson v Johnson (2000) 201 CLR 488. The Tribunal’s decision record does not support such a conclusion. Further, there is no reason whatever to infer that the Tribunal was guilty of actual bias whether because it was so committed to a conclusion already formed that its view was incapable of alteration, whatever evidence or arguments might have been presented: Minister for Minister for Immigration & Multicultural Affairs v Jia Legeng or, for instance, because the Tribunal had some interest in the proceedings. As a consequence, these potential incidents of bias, together with the applicant’s related allegation that the Tribunal had an ulterior motive, which itself was never identified, is not made out.
As to the allegation that the Tribunal failed to consider the applicant’s oral submissions, in the absence of particularisation this allegation lacks substance. As noted earlier in these reasons, the Tribunal appears to have summarised, in considerable detail, the oral submissions which the applicant made at its hearing. Absent a transcript of that hearing, and there being no reason to doubt the accuracy of the Tribunal’s decision record, the latter must be accepted as an accurate record with the consequence that it has not been proved that the Tribunal did, in fact, ignore any oral submission of relevance which was put to it.
Further in this connection, it is not necessary for the Tribunal, in its decision, to cite every piece of information which comes before it: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630. Relevantly, all that s.430 of the Act requires the Tribunal to do in its decision record is to refer to the evidence or other material on which it relied when making findings on material questions of fact. The Tribunal is entitled to select which evidence it relies on when reaching findings of fact and if it has not relied on some evidence to reach such a finding, it is not obliged to discuss it in that part of its decision record under the heading “Findings & Reasons”.
Application ground 3
The third allegation is essentially one that the Tribunal breached s.424A of the Act which relevantly provides:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
The applicant alleges that the Tribunal should have put its doubts to him and given him an opportunity to make explanations in writing. However, section 424A is concerned with information, in the sense of evidence and facts, not conclusions, thoughts or the Tribunal’s reasoning processes: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190. The matters which the applicant alleges the Tribunal should have notified to him were not “information” as that word is understood for the purposes of s.424A. As a result, the Tribunal had no obligation to invite the applicant to give written explanations addressing the doubts and concerns which it had regarding his claims.
To the extent that this allegation may be a misunderstanding of the Tribunal’s obligations under s.425, it should be noted that the matters which concerned the Tribunal were indeed put to the applicant during the course of the Tribunal hearing. He had an opportunity to respond to those matters at that hearing. However, s.425 does not provide an applicant with the right to respond in writing to such disclosures by the Tribunal.
For these reasons, the third ground pleaded in the application does not disclose jurisdictional error on the Tribunal’s part.
Application ground 4
The applicant alleges that the Tribunal erred in not accepting that he wished to return to his country when a peace deal is reached and made erroneous findings as to his intentions to return to his country. This allegation appears to be directed to the Tribunal’s concerns regarding the applicant’s return visits to Sri Lanka in September 2007 and November 2008. However, the question is not whether the applicant wishes to live in his home country but whether he has a well-founded fear of persecution for a Convention reason were he to return there. A refugee may well wish to return to his or her home if circumstances permit but that is not the question before the Tribunal. Whatever the applicant’s wishes might have been, the question was whether he had a relevant fear of returning. The matter raised by this ground was not one which the Tribunal was required to consider and thus cannot be the basis of a finding of jurisdictional error.
But in any event, the Tribunal’s conclusion on what motivated the applicant to return to Sri Lanka is in September 2007 and November 2008, or more accurately, its conclusion that the applicant’s claimed fear was not so great that it prevented his returns, was a factual one and cannot be reviewed in these proceedings.
Poor interpreter at the Tribunal hearing
From the bar table, the applicant submitted that the interpreter services available at the Tribunal hearing were inadequate and that, impliedly, he had been unable to present his case adequately. The applicant based his allegation on poor interpreter services on what he heard when he listened to the tape of the Tribunal hearing. He said that once he heard the recording he came to an understanding that the translations had not been adequate.
As has already been noted, no transcript of the Tribunal’s hearing has been put before the Court in these proceedings. Nor has the applicant led evidence from an adequately qualified interpreter attesting to identified inadequacies or inaccuracies in the translations made at the Tribunal hearing. Further, the applicant has not sought to identify any part of the Tribunal’s summary of the evidence at its hearing which could be said to manifest such a shortcoming.
For these reasons, it has not been proved that there was any inadequacy in the translation services available at the Tribunal hearing.
Tribunal did not understand the applicant’s fear
The final matter raised by the applicant at the hearing is similar to part of the first allegation considered above and, again, is no more than a complaint that the Tribunal did not accept the applicant’s allegations to have a well-founded fear of persecution for a Convention reason. Again, the Tribunal’s conclusion was a finding of fact which cannot be reviewed in these proceedings and does not amount to a basis to conclude that its decision is affected by jurisdictional error.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 21 May 2010
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