SZOER v Minister for Immigration - [2010] FMCA 382

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOER v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 382

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming ethnic persecution in Fiji – Tribunal giving no weight to three documents submitted by the applicant – whether the Tribunal should have made enquiries about those documents before deciding to give them no weight considered.

Migration Act 1958 (Cth), s.424A

Luu v Renevier (1989) 91 ALR 39
Minister for Immigration v Le [2007] FCA 1318
Minister for Immigration v SZIAI (2009) 259 ALR 429
SZMJM v Minister for Immigration [2010] FCA 309
SZNWA v Minister for Immigration [2010] FCA 470

Applicant:

SZOER

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 450 of 2010

Judgment of:

Driver FM

Hearing date:

2 June 2010

Delivered at:

Sydney

Delivered on:

17 June 2010

REPRESENTATION

Solicitors for the Applicant:

Mr T Silva
Silva Solicitors

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 450 of 2010

SZOER

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 5 February 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Fiji and had made claims of persecution based upon her Indian ethnicity. She had travelled to Australia on several occasions and arrived most recently on 19 February 2009. She applied for a protection visa on 13 May 2009. The applicant was interviewed by the Minister’s delegate on 17 July 2009. The delegate refused the applicant’s visa application on 12 August 2009. The applicant sought review of that decision by the Tribunal on 31 August 2009. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend a hearing. The Tribunal conducted hearings on 5 November 2009, 11 November 2009 and 17 November 2009. It appears that the two earlier hearings were adjourned because on the first occasion there was no interpreter and on the second occasion the interpreter had been booked for an insufficient period.
The applicant claimed to fear harm in Fiji for reason of her race and imputed political opinion. She claimed to be Indo-Fijian and that her father was a member of the Fijian Labour Party. She claimed to have been harassed by ethnic Fijians in her village, where she claimed there was only one other Indo-Fijian family. As ultimately presented to the Tribunal she claimed to have suffered harassment from young men saying things to her, banging on her door, pushing her and ripping her clothes, and throwing a stone at her, in 2006, 2007 and 2008. She claimed that she had not applied for protection when visiting Australia (where several of her relatives live) in 2007 and 2008 because she was not scared. However she claimed that in December 2008 her house was robbed and father cut with a knife by four masked people, and that in January 2009 when she was walking home at night four ethnic Fijians tried to rape her but ran away when a car came. She claimed she did not report the attempted rape to the police, although she had reported three of the other matters. (See generally court book (CB) 139-149).
On 7 December 2009 the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) inviting comment on what the Tribunal saw as inconsistencies and implausibilities in the information she had provided to the Tribunal and the Department which bore on the applicant’s credibility. The applicant’s solicitor sought and was granted an extension of time to respond. He responded by letter dated 29 December 2009.
The Tribunal found that the applicant was not a truthful or credible witness, and rejected all her claims of past harm, which it found she had fabricated (CB 160 [87]), noting:
a)the vague and shifting nature of her oral evidence (CB 154-155 [58-59]);
b)significant differences between her written claims in her protection visa application, those made in her delegate’s interview and those made to the Tribunal (CB 155-158 [60-77]);
c)the inconsistency of her claims with independent country information (CB 158-159 [78-81]); and
d)her failure to claim protection on her previous visits to Australia and the nearly four month delay in her applying for protection after her arrival in Australia in 2009: CB 159 [82-83]. Given these findings and on the basis of independent country information the Tribunal concluded that the applicant’s claimed fears of future harm in Fiji were not well founded (CB 160-161 [88-94]).

The application, evidence and submissions

The applicant relies upon an amended application filed on 10 May 2010[1]. There is one ground in the amended application:
[1] The proceedings were commenced by a show cause application filed on 4 March 2010.
The Tribunal made jurisdictional error by not making inquiries about the supporting letters from (a) [t]he Fijian police and/or (b) the applicant’s lawyers, which inquiry was necessary before deciding to give those letters no weight.
Particulars
The Tribunal on page 24 (CB 159) at [85] held that due to lack of details in the alleged police letter and due to applicant’s credibility it gave no weight to it.
On [p]age 24 (CB 159) at [86] it held that due to lack of details in the applicant’s former lawyer’s letter, some perceived inconsistency and due to applicant’s credibility it gave no weight to it.
A basic inquiry would have determined genuineness of the letters and untruthfulness of events, which inquiry was necessary in the circumstances but not pursued.
I have before me as evidence the court book filed on 23 March 2010 and the affidavit of Fariza Bano made on 29 April 2010, to which is annexed a transcript of the Tribunal hearings conducted on 11 and 17 November 2009.
The applicant submits that the Tribunal erred making no inquiries before by placing no weight on two statements from the Fijian police dated 20 July 2009 and a letter from the applicant’s lawyer in Fiji dated 21 July 2009. The applicant submits that the Tribunal was under a duty to make further inquiries in relation to the genuineness of those documents and that it fell into error in failing to do so. The applicant submits that it is implicit from the Tribunal’s reasoning that the documents were rejected as fabrications without any proper inquiry into them.
The Minister submits that there is no general duty on the Tribunal to make inquiries. The Minister concedes that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained may in some circumstances indicate a constructive failure to exercise jurisdiction[2]. The Minister disputes that there was any finding by the Tribunal about whether the documents were genuine or fabricated and the Minister further submits that the Tribunal gave no weight to the documents because of their contents. The Minister submits that it was up to the applicant to provide whatever evidence she wished in support of her claims and notes that the applicant was legally represented before the Tribunal. The Tribunal did not have to make the applicant’s case for her[3].
[2] Minister for Immigration v SZIAI (2009) 259 ALR 429 at [25]
[3] Luu v Renevier (1989) 91 ALR 39 at page 45

Reasoning

In SZIAI at [25] the High Court stated:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. … (footnote omitted)
The High Court’s decision was presaged by the earlier decision of the Federal Court in Minister for Immigration v Le [2007] FCA 1318 at [60]-[63]. It is clear from both decisions that the Tribunal is under no general duty to make inquiries but that in particular circumstances a failure to make an obvious inquiry on a critical issue where information is likely to readily available may be unreasonable or otherwise involve a failure of the review process. The decision in SZIAI was further considered by the Federal Court in SZMJM v Minister for Immigration [2010] FCA 309 where Bennett J said at [30]:
SZIAI stated that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could amount to a failure to review. A Tribunal’s failure to inquire may ground a finding of jurisdictional error because the failure renders the ensuing decision manifestly unreasonable, but such circumstances are rare and exceptional (Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60] per Kenny J at [60]). The critical underlying question remains whether the decision is vitiated by jurisdictional error. The failure to inquire must constitute a failure to undertake the statutory duty of review or otherwise be so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error (SZIAI at [26]; see also Minister for Immigration and Citizenship v Dhanoa [2009] FCAFC 153; (2009) 180 FCR 510 at [46]–[51] per Jagot and Foster JJ and SZNBX v Minister of Immigration and Citizenship [2009] FCA 1403 at [30] per Bennett J). The fact that it may have been reasonable for the Tribunal to make a certain inquiry does not elevate the lack of such an inquiry into a jurisdictional error.
In the present case the Tribunal made comprehensive findings of untruthfulness against the applicant. At [57] of its reasons (CB 154) the Tribunal said:
The Tribunal did not find the applicant to be a truthful or credible witness. There were significant problems with the applicant’s evidence at the hearing. The applicant’s responses when the Tribunal asked for specific details of what had happened to her were vague. There were also inconsistencies in her evidence and shifts in her evidence. Further the applicant’s claims were not consistent with the country information before the Tribunal.
The Tribunal went on to discuss its difficulties with the applicant’s evidence in detail. The Tribunal further noted that the applicant had been to Australia on several occasions and had returned to Fiji in 2008. She had not applied for protection until her third visit to Australia five days before her visitor visa was due to expire.
In relation to the documents in issue the Tribunal said at [84]-[86] of its reasons (CB 159):
Following the Departmental interview the applicant submitted two statements to the Department from the Fiji Police Force and a letter from her lawyer in Fiji to support her claims.
The two statements from the Fiji Police Force are addressed “To Whom it May Concern”. They are not police reports provided at the time of the incidents as they are dated 20 July 2009. They state that the applicant reported that she had been robbed and reported that she had been threatened. The statements provide no details of when the applicant reported these incidents or when she was robbed and threatened. Given the [Tribunal’s] finding as to the credibility of the applicant and given the lack of detail in these statements the Tribunal places no weight on them.
The letter from the applicant’s lawyer in Fiji is dated 21 July 2009 and is addressed “To Whom it May Concern”. It states that in January 2009 the applicant and her father came to his office in January 2009 seeking his advice regarding incidents where the applicant was intimidated and harassed by villagers in her area on two different occasions in November 2008 and January 2009. The letter from the applicant’s lawyer provides no details of the incidents in November 2008 and January 2009. The applicant claimed at the hearing that nothing happened to her in November 2008. Given the inconsistencies between the information in the lawyer’s letter and the evidence of the applicant at the hearing and given the lack of detail in the lawyer’s letter about the incidents in November 2008 and January 2009 and given the Tribunal’s finding in relation to the credibility of the applicant the Tribunal places no weight on this letter.
Contrary to the applicant’s submissions, there was no finding by the Tribunal, expressed or implied, that the documents submitted by the applicant were not genuine. Although the Tribunal found the applicant to have been wholly untruthful in her claims the Tribunal considered the documents she had submitted. The Tribunal found no assistance in the police statements because of the lack of detail in them. The Tribunal found that the letter from the applicant’s lawyer in Fiji was not consistent with the applicant’s claims and also suffered from a lack of detail. Because of the lack of detail and lack of consistency in the documents, the Tribunal gave no weight to the contents of them. I take the Tribunal to mean that the documents did not assist the applicant to satisfy the Tribunal that she had a well-founded fear of persecution in Fiji for a Convention reason. In particular, the documents did nothing to overcome the concerns that the Tribunal held about the applicant’s credibility. At [87] of its reasons (CB 160) the Tribunal concluded that the applicant was not a truthful or credible witness and rejected all of her claims made at the hearing and in her protection visa application.
The documents in issue are reproduced at CB32-34. The police statements are extremely general and although they contain a reference to police reports bearing numbers suggestive that they were created in 2008 and 2009 the content of those reports is unknown. As the Tribunal found, the letter from the solicitor in Fiji was not consistent with the applicant’s claims. The Tribunal might have made an inquiry of the Fiji police force about the content of the two police reports identified in the police statements but it was under no obligation to do so. The same inquiry could have been made by the applicant but was apparently not made. The applicant had the opportunity to make such an inquiry in order to support her claims in consequence of the letter sent to her solicitor on 7 December 2009 pursuant to s.424A of the Migration Act. That letter put the applicant on notice that the Tribunal was inclined to disbelieve the applicant’s claims of having been continuously threatened, intimidated and attacked. Although the applicant, through her solicitor, responded to the invitation to comment, there was apparently no attempt to obtain the police reports referred to. Neither was the Tribunal invited or requested to obtain them. If, as the applicant now submits, such an inquiry was obvious and bearing on a vital issue, it is mystifying why no attempt was made by or on behalf of the applicant to obtain the reports. I note, further, that the documents were discussed with the applicant at the hearing on 17 November 2009 which would have also put the applicant on notice of the desirability of obtaining further information to support her claims[4].
[4] I note, however, that the applicant’s solicitor was not present at the third hearing.
The Federal Court recently dealt with somewhat similar circumstances in SZNWA v Minister for Immigration [2010] FCA 470. At [41] Foster J said:
It was not unreasonable for the Tribunal to proceed upon the basis that it was a matter for the appellant as to whether or not the penalty notice would be provided to the Tribunal. As was submitted on behalf of the first respondent, the Tribunal can hardly be expected to hijack the task of running the appellant’s case for her by making enquiries of the appellant’s migration agent or taking any of the steps which the appellant now asserts should have been taken. There would usually be good reason for the Tribunal not to go down that path. It is for the appellant to provide whatever evidence she wishes in support of her claims (Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187]). In the circumstances of the present case, the Tribunal had no obligation to take steps to make out the appellant’s case for her if she was unwilling to take up the opportunity to do so herself by presenting the penalty notice to the Tribunal (Luu v Renevier (1989) 91 ALR 39 at 45; see also Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [35] per Keane CJ and at [49] per Emmett J). Further, the appellant apparently made no effort to seek to bring the penalty notice to the attention of the Tribunal after the Tribunal hearing.
I am unable to distinguish this case from SZNWA. It was for the applicant to present whatever material she chose to the Tribunal in support of her application. The Tribunal was entitled to rely upon that information. While the Tribunal might usefully have made an attempt to obtain the police reports referred to in the police statements it was under no duty to do so.
I find that the ground of review in the amended application is not made out. I find that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
I will so order.
I will hear the parties as to costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 17 June 2010