SZOBB v Minister for Immigration
[2010] FMCA 236
•19 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOBB v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 236 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – Tribunal’s findings of fact not open to review in judicial review proceedings – allegation of bias not proved – s.424A “information” is factual material, not the Tribunal’s doubts, conclusions, thought processes or reasoning. |
| Migration Act 1958, ss.424AA, 424A, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 |
| Applicant: | SZOBB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2922 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 19 March 2010 |
| Date of Last Submission: | 19 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2010 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the First Respondent: | Mr J.D Smith |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2922 of 2009
| SZOBB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Malaysia where, he claims, he was a member of Hindu Rights Action Force (“HINDRAF”) and spoke out on behalf of that organisation which led to his arrest, detention and torture. He also claims that he was discriminated against in employment because of his ethnicity.
The applicant claims to fear persecution in Malaysia because he is a Tamil-speaking Indian Hindu Malaysian and also because he is a member of HINDRAF.
After his arrival in Australia on 25 February 2009, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 8 July 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 – 9 of the Tribunal’s decision (Court Book (“CB”) pages 140 – 145). I now summarise the relevant factual allegations.
Primary application
In his visa application, the applicant made the following claims:
a)Tamil-speaking Hindus, such as he, had been discriminated against in Malaysia for so long that they formed a group, impliedly HINDRAF, to fight for their rights;
b)he fears torture, death, detention and imprisonment by the Malaysian police and army if he is sent back to Malaysia as he is a member of HINDRAF;
c)when he completed his studies in engineering at Otomotif College he was unable to find a suitable job due to discrimination by employers and the Malaysian workforce. Consequently, he worked as a restaurant manager;
d)he was advised that with his qualifications he could obtain a job overseas but his attempts to obtain one in the United Kingdom and New Zealand failed;
e)in November 2008 his friends, cousins and he were held in Pudu Lockup Prison where they were tortured and starved for nearly two weeks. HINDRAF made representations about their arrest and they were released on condition that they would be followed after their release and if they were found to have any connections with HINDRAF or the Malaysian Indian Congress (“MIC”) they would be permanently detained or declared dead;
f)many of his friends started to disappear without trace. He and certain friends went into hiding, pending their departure from Malaysia. However, the applicant’s parents were threatened by the authorities who said that they would trace and arrest the applicant and his friends for not being at their homes.
The applicant provided country information in support of his application.
At an interview with the Minister’s department on 1 June 2009 the applicant made the following additional claims:
a)he travelled to London in 2007 and stayed there for eight or nine months, returning to Malaysia in around March 2008. He travelled there because people threatened to kill him. He did not seek protection in London because no one told him that there was a protection procedure there;
b)he travelled to New Zealand on 21 August 2008 and stayed there for about a week; and
c)in November 2008 he was locked up for about sixty days during which he was beaten and although there is no record of him on the system he is known to the authorities in Perak.
Tribunal hearing
At the Tribunal hearing on 27 October 2009 the applicant made the following additional claims:
a)he lived in Perak in Malaysia;
b)he completed his secondary schooling in Perak in 2005 after which he did a one-year diploma in automotive engineering in Kuala Lumpur which he completed in August 2006;
c)apart from managing a restaurant in Malaysia, he had not engaged in any other work. He used his savings from his work to pay for the international airfares and expenses of living overseas;
d)he travelled to New Zealand for two weeks in August 2008 to see if he could undertake a course there and find a safe place to live. However, he returned to Malaysia as he could not get a job or accommodation in New Zealand and because he did not know anybody there;
e)he initially joined MIC in 2005 and became a “normal lay person” member in HINDRAF towards the end of 2006, remaining a member until he came to Australia. He had never held a position in HINDRAF. In terms of activities, he participated in meetings and signed petitions;
f)he had been detained four or five times. He was detained for two weeks in November 2008 because he “rais[ed] his voice” on behalf of HINDRAF. When he was released, the Malaysian police said that they would be following him and that they wanted to kill him. This was his main reason for coming to Australia. He had also been detained before going to London and was arrested again after his return;
g)he could not live elsewhere in Perak or indeed in Malaysia because “wherever you go in Malaysia there are Muslim people and he was identifiable because of his skin colour and would be detained for this reason”;
h)he did not apply for protection while he was in London because he was not aware that he could apply for asylum and also because when he was arrested the first time it did not have a major effect on him;
i)he did not apply for refugee status in New Zealand because he could not get a safe place to live, accommodation or education and he did not know how to make a refugee application. Consequently, he returned to Malaysia thinking that since it was a big country he could live in hiding;
j)the authorities were still looking for him;
k)the authorities seriously beat him up; and
l)he had not been involved in any political activities in Australia and, while he had an interest in politics, he had to protect himself as he did not know what could happen to 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 Tribunal was not satisfied that the applicant was a HINDRAF activist in Malaysia and did not accept that he had a
well-founded fear of serious harm amounting to persecution for a Convention reason on that basis for the following reasons:
i)the applicant provided no evidence of his involvement in HINDRAF, for example, a letter from the organisation, a membership card or a letter from his friends and colleagues who were also members of HINDRAF;
ii)the applicant did not possess detailed knowledge of, or demonstrate a commitment to, HINDRAF; and
iii)the applicant did not claim that he had ever been involved in pro-HINDRAF activities or demonstrations against the Malaysian government during his time in the United Kingdom and Australia;
b)in view of this and the lack of evidence that the applicant had any real involvement in HINDRAF, the Tribunal was satisfied that the applicant manufactured his claimed involvement in that organisation in order to enhance his claim for a protection visa. From this, the Tribunal concluded that the applicant was not a credible witness;
c)the Tribunal did not accept that the applicant had ever been arrested and detained by the Malaysian police or beaten and tortured and found that he manufactured those claims in order to enhance his application for a protection visa. The Tribunal noted in this connection:
i)the inconsistencies and contradictions in the applicant’s claims, for example, the nature of his engineering qualification and the number of times he had been detained in Malaysia; and
ii)the lack of evidence supportive of his claims to have been tortured, beaten, starved for several days, hung upside down and threatened with death by the Malaysian police, for example, an arrest warrant or detention order; and
d)the Tribunal was satisfied that if the applicant was a member of HINDRAF and had any concerns whatsoever about his safety for this reason or indeed for any other Convention related reason, such as because of his Tamil ethnicity and Hindu religion, then he would have applied for asylum in both the United Kingdom and New Zealand. Furthermore, the applicant would not have been willing to return to Malaysia after either of his visits to those countries.
Proceedings in this Court
The grounds of the application commencing these proceedings were pleaded as follows:
(1)The Tribunal failed to give consideration to the fact that the Applicant was actively participating in the demonstration in support of the Tamil league and unreasonably rejected his claims on the basis that the Applicant was not aware of the political leaders and the date of events and thus made a procedural error leading to jurisdictional error.
(2)The Tribunal relied on the Department’s country information available to it and unreasonably expected the applicant to hold similar information forgetting the fact that the Applicant is a layman and with bias continued to conduct the hearing, rejecting Applicant’s claims and making a jurisdictional error.
(3)The Tribunal failed to give the Applicant the opportunity to clear the doubts that the Tribunal had in relation to his claims, instead the Tribunal made a procedural error by questioning the applicant as to unnecessary details, confusing the Applicant during the hearing and thus made a jurisdictional error on procedural fairness.
The applicant raised a number of additional matters in the written submissions he filed on 8 March 2010. He raised further matters in his oral submissions to the Court today.
Failure to consider
Dealing first with the matters raised in the application, the applicant alleges that the Tribunal failed to give consideration to the fact that he was an active participant in HINDRAF. However, the Tribunal’s decision demonstrates that this allegation must fail on the facts. The Tribunal did give consideration to the evidence which the applicant placed before it and this is revealed by the Tribunal’s summary of its hearing together with its summary of the claims which the applicant made in his protection visa application and in the interview he had with the departmental official.
The first allegation continues by stating that the Tribunal unreasonably rejected his claims. Such an allegation is no more than a complaint about the Tribunal’s fact finding. The Tribunal’s factual conclusions on matters which have no jurisdictional content are matters entirely for it and cannot be reviewed by this Court in these judicial review proceedings. Although the applicant may consider that the Tribunal reached incorrect findings of fact and conclusions on the merits of his claim, that is not a basis upon which this Court may set aside the Tribunal’s decision. The Court’s role is restricted to ensuring that the Tribunal correctly understood and applied the law relevant to its review.
For these reasons, the first ground alleged in the application does not disclose jurisdictional error on the Tribunal’s part.
Bias
The second ground of the application alleges that the Tribunal expected the applicant to hold independent country information similar to that available to the Tribunal and, by continuing the hearing with that expectation, demonstrated bias. The first point to be made in relation to the second ground is that the Tribunal did not require the applicant to have independent country information similar to that which was available to it. Further, there is no suggestion that the Tribunal made some form of quantitative or qualitative comparison of the evidence which it could source and the material which was put before it by the applicant.
Additionally, the suggestion that the Tribunal continued to conduct the hearing implies that the applicant sought an adjournment or objected to the matter proceeding. There is nothing in the Tribunal’s decision record which would suggest that the applicant sought an adjournment of the hearing and, indeed, quite the contrary. In para.47 of its decision record the Tribunal summarises the exchanges which passed between it and the applicant prior to the closure of the hearing and it is apparent that the applicant made no complaint or objection related to the conduct of the hearing. In circumstances where it is the applicant’s responsibility to make out his claims to the Tribunal’s satisfaction and where there was no adjournment of the hearing sought, there is no basis to find that the Tribunal’s conduct of the review manifested bias, whether of an actual or ostensible nature.
For these reasons, the second allegation in the application is unsuccessful.
Opportunity to respond
The third ground pleaded in the application concerns what the applicant identifies as the doubts which the Tribunal had in relation to his claim and says that the Tribunal should have permitted him an opportunity to address those doubts. In the context of the Migration Act, this allegation must be understood to assert that the Tribunal failed to meet its obligations either under s.424A or s.425 of the Act. Section 424A 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.
(2) …
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; …
That section only requires the Tribunal to notify an applicant of “information” which the Tribunal considers would be the reason or part of the reason for affirming the decision under review. “Information” for the purposes of s.424A does not comprise any doubts or conclusions, thought processes or reasoning of the Tribunal: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190. “Information” in the context of s.424A is factual material. Consequently, the Tribunal had no obligation under s.424A to notify the applicant of the doubts which it had in relation to his claims.
Section 425 relevantly provides:
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Relevantly to this allegation, the Tribunal is required to identify to an applicant the issues arising in relation to the decision under review. It may be that the applicant says that the Tribunal failed to identify those issues. This allegation cannot be made out on the facts as the Tribunal’s decision record clearly demonstrates that it put its concerns directly to the applicant on a number of occasions. Moreover, it gave him the opportunity to respond to those doubts and, indeed, in para.47 it is recorded that the applicant was advised that he was entitled to seek more time to respond to or comment on information that had been put to him at the hearing. While that advice is a reflection of the Tribunal’s obligation under s.424AA, the applicant could also have availed himself of that entitlement to further address the issues which the Tribunal identified to him pursuant to s.425 as it appears that the Tribunal’s invitation would have encompassed such a request as well.
Whatever the case, para.47 of the Tribunal’s decision record records:
The Tribunal asked the applicant if there were any other claims or matters he wished to put before the Tribunal before the hearing closed …
and then went on to advise him that he could ask for further time under s.424AA. Paragraph 47 of the Tribunal’s decision record continues:
Asked if he needed more time, the applicant replied in the negative but asked the Tribunal if it had understood his claims.
Consequently, I find that the Tribunal satisfied its obligations under s.425 of the Act.
For these reasons, para.3 of the application is not made out.
Written submissions
Commencing at para.3 of his outline of submissions, the applicant raised a number of additional allegations. The first of these was that the Tribunal failed to understand his fear and that there was some issue of miscommunication during the Tribunal hearing. The allegation that the Tribunal failed to understand the applicant’s fear is no more than a disagreement with the Tribunal’s assessment of the evidence. While the applicant might have wished the Tribunal to have had a different appreciation of the evidence which it had to consider, the fact that it declined to accept the fear which the applicant claimed he endured is no more than a finding of fact exclusively within the Tribunal’s jurisdiction. It is simply that the Tribunal took account of what the applicant said but did not believe him.
As to the applicant’s stated concern about “miscommunication during the interview”, para.47 of the Tribunal’s decision record records that, in response to the applicant’s query concerning whether the Tribunal had understood his claims:
The Tribunal replied in the affirmative, stating that the interpreter was very good and he had expressed himself clearly.
No evidence has been adduced by the applicant, such as a transcript of the Tribunal hearing or expert evidence attesting to inadequacies in the interpreter services available at the Tribunal hearing, which would cast any doubt upon the Tribunal’s statement as to the competence and effectiveness of the translation services available at his hearing.
Consequently, I do not find that the allegation of the miscommunication at the Tribunal hearing has been proved or that the allegations made in para.3 of the applicant’s outline of submissions are made out.
Paragraph 4 of the applicant’s written submissions states:
The Tribunal’s arguments were based on the applicant’s failure to prove his membership and support to the HINDRAF.
The applicant also alleged that the Tribunal was unwilling to give him the benefit of the doubt.
That part of the allegation that deals with the applicant’s failure to prove his membership and support of HINDRAF is another challenge to the Tribunal’s findings of fact and, in particular, its failure to be satisfied that he was a HINDRAF activist in Malaysia. The Tribunal considered the claims which were made by the applicant in connection with this aspect of the protection visa application and it also considered the evidence which the applicant advanced in support of that claim. In the circumstances, the Tribunal’s lack of satisfaction that the applicant was a HINDRAF activist of any sort in Malaysia is not a conclusion indicative of jurisdictional error.
As to the allegation that the Tribunal failed to give the applicant the benefit of the doubt, para.51 of the Tribunal’s decision record records that it actually did. There, it says:
… the Tribunal is willing to give the applicant the considerable benefit of the doubt, and accept his unsupported claims that he had some loose association with HINDRAF while in Malaysia …
This aspect of the allegation must therefore fail on the facts. The allegations made in the fourth paragraph of the applicant’s written outline of submissions do not disclose jurisdictional error on the Tribunal’s part.
Paragraph 5 of the written outline complains that the Tribunal:
… collectively rejected the applicant’s claim on the grounds that there were number of inconsistencies and contradictions in his claims.
The applicant goes on to allege that the Tribunal failed to offer him an opportunity to address the Tribunal’s doubts in writing. This allegation is similar to the third allegation pleaded in the application. The only additional element is that the applicant says he should have been able to respond in writing to the Tribunal’s doubts. This, therefore, is an allegation that the Tribunal failed to comply with its obligations under s.424A of the Act. For the reasons already given, no breach of that section has been identified and this allegation does not disclose a basis upon which the Tribunal’s decision should be set aside.
Paragraph 6 of the written outline alleges that the Tribunal:
… expected the applicant to provide a copy of an arrest warrant or detention order, or medical evidence that he has ever been tortured or beaten …
This allegation appears to assert that the possession and presentation of these documents was a condition precedent to the Tribunal finding that the applicant had a well-founded fear of persecution for a Convention reason. This is not so. Relevantly, what the Tribunal said was:
The applicant also claims that he has been tortured, beaten, starved for several days, hung upside down, and threatened that he will be killed by the Malaysian police. However, he provides absolutely no evidence to support these claims such as a copy of an arrest warrant or a detention order, or medical evidence that he has ever been tortured or beaten, obtained in Malaysia, the United Kingdom, or even Australia. The Tribunal is satisfied that if the applicant had experienced the horrendous treatment as he claims, then he would have provided medical or other evidence to support them. (para.53)
Whether the applicant produced evidence supportive of his allegations was a matter solely for him. The fact that he failed to produce convincing corroborative evidence is something which the Tribunal was entitled to take into account when deciding whether his claims were to be believed. However, the statement of the Tribunal quoted above does not suggest that the possession and presentation of documents of the class referred to by the Tribunal was a condition precedent to a finding in favour of the applicant.
Given the seriousness of the mistreatment which the applicant says he suffered in Malaysia it is plain that the Tribunal would have expected the applicant to have provided corroborative evidence of some documentary nature, for instance, medical evidence recording his claimed injuries. His claim to be entitled to protection could have been made out without such documents had other elements of his claim been sufficiently persuasive. The absence of such corroborative evidence was merely one additional factor relied upon by the Tribunal to reinforce the conclusion which it had reached in para.52 of its decision record that it was not satisfied that the applicant was a HINDRAF activist in Malaysia or had a well-founded fear of persecution on that account. For these reasons, the allegations set out in para.6 of the written outline of submissions do not identify jurisdictional error.
Paragraph 7 of the outline of submissions is a complaint by the applicant that the Tribunal failed to understand why he had not sought protection when he was in the United Kingdom and New Zealand. The Tribunal considered the applicant’s explanations for his conduct in the United Kingdom and in New Zealand but was not impressed by them. Whether the Tribunal was correct in that conclusion on the applicant’s evidence concerning the reasons why he acted as he did when in those countries is not a matter which can be inquired into now because it is a factual matter with no jurisdictional content. This was merely one more factor taken into account by the Tribunal when reaching its decision on the credibility of the applicant’s claim.
This allegation also appears to imply that the Tribunal failed to understand the significance of the fact that the applicant had used an agent as part of the process of his travel to Australia and that he did not have an agent’s advice or, indeed, the advice of anybody when he was in the United Kingdom and New Zealand. The summary of the evidence which was before it discloses that the Tribunal was aware that the applicant had had advice from an agent before arriving in Australia, but based its conclusions concerning his conduct in the United Kingdom and New Zealand on the perceived implausibility of his inaction in those two countries given the persecution which he claimed to have suffered in his home country. For this reason, this aspect of the allegation does not suggest error on the Tribunal’s part.
The applicant also alleges in para.7 of his written outline that the Tribunal acted maliciously. Far from acting in this manner, the Tribunal’s reasoning process was unexceptionable and certainly not exhibiting features suggesting that it was approaching the review in anything other than good faith. This allegation must be rejected.
Oral submissions
In his oral submissions today, the applicant raised a number of additional matters, namely, the Tribunal did not ask him why he had not protested in the United Kingdom and New Zealand and it should not have drawn an adverse inference from the fact that he did not produce any HINDRAF membership card or any letters from friends and colleagues asserting his membership of HINDRAF.
All of the new matters referred to by the applicant today raise questions of fact which were determined by the Tribunal. The information which the Tribunal relies on when reaching findings of fact is a matter for it and cannot be inquired into by the Court on a judicial review application. The important thing to observe is that the Tribunal considered the claims which the applicant made, considered the evidence which was available to it and reached findings of fact which were open to it on that evidence.
For these reasons, the matters raised by the applicant today do not disclose jurisdictional error on the Tribunal’s part.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 12 April 2010
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