SZOHY v Minister for Immigration
[2010] FMCA 477
•11 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOHY v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 477 |
| MIGRATION – Review of decision of Refugee Review Tribunal – Tribunal’s treatment of corroborative evidence – Tribunal engaged in active intellectual process – finding open to Tribunal – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth) |
| SZNPG v Minister for Immigration & Anor [2009] FMCA 1033 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 Tickner v Chapman (1995) 57 FCR 451 Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 |
| Applicant: | SZOHY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 751 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 11 June 2010 |
| Date of Last Submission: | 11 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 11 June 2010 |
REPRESENTATION
| The Applicant: | In person |
| Appearing for the Respondents: | Mr A Markus |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application made on 7 April 2010, and amended on 17 May 2010, is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 751 of 2010
| SZOHY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
I have before me an application made on 7 April 2010, made under the Migration Act 1958 (Cth), and amended on 17 May 2010. The applicant seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 11 March 2010, which affirmed the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant.
The Court has before it a bundle of relevant documents which have been put before the Court in compliance with orders made at an earlier time (Court Book – “CB”).
Background
The applicant before the Court is a citizen of Malaysia. He first arrived in Australia on 28 October 2003. He claimed in his application to have been deported from Sydney in October 2004. He most recently arrived in Australia on 9 July 2009. He applied for a protection visa on 17 August 2009. (This application is reproduced at CB 1 to CB 32.) The applicant provided some documents in support of this application. The applicant’s claims to protection were set out in a statement attached to his protection visa application (CB 33 to CB 35).
Claims to Protection
The applicant claimed to have become a member of the People’s Justice Party (“PKR”) in Malaysia in 2000. He claimed also to have enthusiastically helped in the local activities of this party. He said he was assaulted by members of an opposition party which was later identified as the People’s National Party (“PNP”). He said that on one occasion when he was not present at his restaurant his political opponents came and assaulted his workers and caused damage to the restaurant that he operated. The applicant claimed that this happened many times for about four or five years.
During that time the applicant travelled regularly to India to visit his wife whom he had married there in 1999. He claimed that his restaurant was destroyed and he then came to Australia in 2003. He returned to Malaysia in October 2004 and resumed his business. He claimed that during elections in March 2008 a prominent PKR member, whom he named, frequently came to his restaurant. Members of the PNP did not like him working for the PKR and after the elections they damaged and looted his restaurant. He was beaten and hospitalised for five days. He said the police were informed of this incident.
The applicant said that he could not live in Malaysia. He travelled to India to see his wife and children but he came to Australia to seek protection.
The Delegate
The applicant attended an interview with a delegate in the Minister’s department on 10 November 2009. The delegate refused the application on 11 November 2009 (CB 48 to CB 57). In reaching this decision the delegate noted, amongst other things, that the applicant had not provided any documentary evidence that he was a member of the PKR (CB 56.3).
The Tribunal
The applicant applied for review to the Tribunal on 7 December 2009 (CB 58 to CB 61). He was invited to appear at a hearing scheduled for 8 February 2010 (CB 63). He responded that he would attend and asked that an interpreter in the Tamil language be provided to assist him (CB 65). The applicant attended the hearing before the Tribunal (CB 67). He also provided to the Tribunal a membership card said to have been issued by his political party (CB 69 to CB 71 and CB 88), photographs which he said were of damage to his restaurant (CB 72 to CB 76), certain letters from his wife and another person (CB77 to CB 86), and a hospital card showing he was treated as an out patient at a hospital in Kuala Lumpur (CB 87).
After that hearing the Tribunal received a letter from the applicant in which he complained that he had difficulty understanding the interpreter in the Tamil language interpretation. He also provided to the Tribunal a copy of a newspaper article which was described as a “Tamil” newspaper article (CB 99 to CB 102).
A further hearing was held by the Tribunal on 3 March 2010. No difficulties with interpretation were reported (CB 103 to CB 106 and [48] at CB 118 to [74] at CB 123 of the Tribunal’s decision record).
The Tribunal found that the applicant was not truthful or credible in his claims to fear persecution ([82] at CB 124). It set out six matters that it said informed that conclusion. In essence, the Tribunal rejected the applicant’s factual basis as to why he said he feared persecutory harm in Malaysia. The Tribunal found that the applicant did not have a well founded fear of persecution for a Refugees Convention reason if he were to return to Malaysia. The Tribunal therefore affirmed the delegate’s decision to refuse a protection visa to the applicant.
Application to the Court
By way of amended application, the applicant has put one ground of review before this Court.
“The Tribunal constructively failed to exercise its jurisdiction.
Particulars:
The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process in respect of his documents. The Tribunal ultimately gave the documents no weight on the basis of its credit findings. It was error for the Tribunal to place no weight on the documents without engaging in an active intellectual process as to the contents of the document. It was an error for the Tribunal to assess the applicant’s credit without first assessing whether the substance of the documents corroborated his claims.”
Hearing before the Court
At the commencement of the hearing in this matter before this Court yesterday (10 June 2010), the applicant appeared to become distressed. Some way into the hearing he indicated that he had some difficulty in understanding the interpreter who was assisting in the use of the Tamil language. It emerged that there is a difference in the dialects of the Tamil language as spoken in Sri Lanka and relevantly Tamil as it is spoken in Tamil Nadu in India.
I therefore adjourned the matter until today (11 June 2010) to enable an interpreter in the Tamil language who was conversant with the relevant dialect to be made available.
When the matter resumed on 11 June 2010 the applicant again appeared in person. On this occasion he was assisted by an interpreter in the Tamil language with the appropriate dialect. I tested with the applicant specifically whether there were any difficulties and he indicated that there were no difficulties.
Mr A Markus again appeared for the first respondent. I note that written submissions have been filed on behalf of the first respondent in this matter.
The applicant confirmed that he wished only to press before the Court the sole ground put in the amended application. Beyond that the applicant said that he was not satisfied with the Tribunal’s decision, that he wanted the Court to look at that decision, and that he wanted to stay in Australia for a “new life”.
Consideration
The Minister submits that the applicant’s ground appears to arise on principles applied in a matter handed down in this Court some little time ago. That case is SZNPG v Minister for Immigration & Anor [2009] FMCA 1033 (“SZNPG (FMCA)”). That matter was also concerned with how the Tribunal dealt with corroborative evidence in the form of documents provided in support of the applicant’s claim. I note that that case concerned consideration of whether the Tribunal was biased, or whether an apprehension of bias arose from what was said to be the Tribunal’s refusal to give the applicant’s documents sufficient weight. That is, sufficient weight to overcome its concerns arising from the consideration of other evidence before it.
The ground in the amended application before the Court today does not allege bias or an apprehension of bias. It asserts a constructive failure to exercise jurisdiction. Nevertheless, the particulars to the ground and the references in the particulars to a failure to engage in an active intellectual process in respect of the applicant’s documents, the assertion that the Tribunal gave no weight to the documents on the basis of its credit findings, and the assertion that the Tribunal should not have assessed the applicant’s credit without having first assessed whether the substance of the documents corroborated his claims, all appear to reflect what was relevantly propounded in SZNPG (FMCA) and applied to the facts as found in that case.
What must be immediately noted however is that after the drafting of the amended application in the current case the Full Federal Court handed down its judgment in an appeal made by the Minister in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 (“SZNPG”).
In SZNPG the Full Court gave direction as to the proper state of the law in relation to such a factual scenario as advanced by the applicant now. I note also that the Full Court handed down its judgment on the same day in Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 (“SZNSP”).
On applying the relevant principles, as variously explained by the Full Court in both those matters, the applicant’s complaint to the Court now does not succeed.
It must be said that it is not necessary to explore these principles at any great length for current purposes. This is because the factual basis for the applicant’s ground as pleaded in the amended application, the reference to the alleged failure by the Tribunal to engage in an “active intellectual process” in relation to the documents, the assertion that the Tribunal gave no weight to the documents, and that it first assessed the applicant’s credit without assessing the substance of the documents, is simply not supported by the only relevant evidence on which the applicant relies. Namely, the Tribunal’s decision record.
I should note specifically the documents provided by the applicant in support of his application to the Minister’s delegate:
1)Copy of his marriage certificate (CB 15 and CB 16).
2)An “affidavit” said to be from his father-in-law stating that he consented to the marriage of his daughter to the applicant (CB 17).
3)Copies of relevant parts of his passport (CB 89 to CB 96).
4)Two documents that are not in the English language but which appear without translation (CB 13 and CB 14).
The applicant gave the Tribunal:
1)PKR membership card (CB 71 to CB 88).
2)Photographs said to show the damage to his shop (CB 72 to CB 76).
3)Letter from his wife dated 26 December 2009 (CB 80 to CB 81 and CB 85 to CB 86).
4)Letter from a friend in Malaysia (CB 79 and CB 82 to CB 84).
5)Outpatient card from a hospital in Malaysia (CB 87).
6)Newspaper article with translation from India relating to religious tensions (CB 100 to CB 102).
Neither in his application nor before the Court did the applicant say which or even whether these documents are the subject of the complaint of the alleged treatment by the Tribunal.
Any plain reading of the Tribunal’s decision record reveals that the Tribunal accepted certain aspects of the applicant’s background and biographical facts. It accepted who the applicant said he was, that is, his identity. It accepted that he was a national of Malaysia, that he was married, that he owned a business, and that he travelled to India from time to time to visit his wife and children.
However it was in relation to the specific claims relating to the circumstances and events that the applicant said went to and gave rise to his fear of persecutory harm that the Tribunal found the applicant not to be truthful. In this regard, the Tribunal noted various inconsistencies and had concerns with the applicant’s evidence in relation to these claimed events. It was in relation specifically to these inconsistencies and difficulties with the applicant’s evidence that it based its adverse credibility finding ([79] CB 124).
A distinction therefore needs to be made between those documents which went to support the applicant’s claim of persecutory harm and those documents which were in support of these other matters accepted by the Tribunal.
Turning therefore specifically to each of these documents and to the circumstances to which they were said to relate.
First, the applicant’s marriage, the circumstances as to how he entered into his marriage, the circumstances relating to his wife and for that matter his children that were resident in India were never at issue before the Tribunal. The Tribunal appears to have accepted that part of the applicant’s factual account. In these circumstances the Tribunal did not need to do anything more than merely acknowledge that the applicant had provided a marriage certificate and the “affidavit” from his father-in-law ([22] at CB 112). These documents clearly were not part of the reasons for rejecting those aspects of the applicant’s account that went to fear persecutory harm in Malaysia.
One of the untranslated documents (CB 14) which the applicant had provided to the delegate was subsequently revealed by the applicant to be a trade licence relating to his shop. Clearly, with reference to what is set out in [82] of the Tribunal’s decision record, the Tribunal accepted that the applicant had a business in Malaysia. In these circumstances again, given that this was not a contentious matter before the Tribunal, its acknowledgment of this document was sufficient.
The other untranslated document provided to the delegate (CB 13) is the applicant’s birth certificate. When noted with what also is reproduced at CB 12 it was clearly provided by the applicant in support of his claim to be a Malaysian citizen and in support of his claim as to his identity. Again, the Tribunal accepted these claims by the applicant. They were not matters of contention before the Tribunal.
The applicant’s membership card relating to his claimed membership of the PKR was given to the Tribunal (CB 71 and CB 88). His claim in the amended application to this Court that the Tribunal did not engage in any “active intellectual process” in relation to this card must be rejected in light of what is before the Court. Nor for that matter, on any plain reading of the Tribunal’s decision record, can it be said that the Tribunal placed no weight on this document as is alleged in the amended application.
Paragraph 82 (CB 124) of the Tribunal’s decision record contains each of the matters to which the Tribunal had regard in arriving at its conclusion that the applicant was not truthful or credible in relation to his persecution claims. In this part of its analysis the Tribunal specifically considered the matter of the membership card. For example, it accepted that the card was issued in the applicant’s name even though it noted that the membership card did not give any information as to when it was issued. But the Tribunal reasoned that given the applicant’s own evidence to it at the hearing and notwithstanding the membership card it was not satisfied that he had attracted adverse attention from members of the PNP (CB 125.7).
It is clear that the Tribunal engaged in an active intellectual process in considering the applicant’s own evidence and looking at the membership card in the context of arriving at a conclusion as to whether this was sufficient to satisfy it that he had attracted adverse attention from members of the PNP. The Tribunal’s finding that it could not be satisfied that the applicant was a victim of any harm because of his political profile in Malaysia was clearly open to it on what had been put before it.
In relation to the photographs that the applicant had submitted the Tribunal specifically noted that it considered the photographs. It accepted that the photographs depicted damage to the applicant’s shop. But given its assessment of the evidence that he gave at the hearing, and notwithstanding the photographs, the Tribunal did not accept that the applicant was the target of any assaults from his political opponents or that his business was damaged and looted in the circumstances as he had claimed (CB 126.5). It is clear, therefore, that the Tribunal did give active consideration to the photographs and weighed them against the applicant’s oral evidence. While accepting that the photos depicted damage it was not persuaded that the damage was caused by the applicant’s claimed political opponents from whom he said he feared persecutory harm.
In the ground as pleaded before the Court the applicant or perhaps more properly whoever drafted this ground for the applicant, does not say why this is not an active intellectual engagement by the Tribunal.
It is trite to say that the Tribunal’s function and role in conducting the review includes the weighing of evidence put before it. On what is before the Court now it was reasonably open to the Tribunal to come to the conclusion that it did given the applicant’s evidence to it (Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 558 to 559, W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703; [2001] FCA 679 at [64] to [69] per Tamberlin and Nicholson JJ).
At the hearing the applicant also provided an outpatient card from a hospital in Kuala Lumpur to the Tribunal, headed: “OUTPATIENT CARD”. This card was put forward in support of his claim that he had been assaulted on many occasions during the course of the attacks by his political opponents on his business. Specifically, the applicant claimed to have been assaulted in March 2008. Initially he said he was hospitalised for five days at the Kuala Lumpur General Hospital because of a leg injury.
In its analysis the Tribunal noted that the card was dated 11 March 2008 and made reference to: “cough, fever and rash.” The Tribunal noted that some words on the card were not legible. The Tribunal also noted that there was no reference to a leg injury. At the hearing the applicant explained that he had been hospitalised for three or four days, earlier he had said three or four hours. But regardless the Tribunal was not persuaded by the applicant’s explanation that he had been at the hospital for that time given that the card was headed: “OUTPATIENT CARD”. In all the circumstances the Tribunal was not satisfied that the scar on his leg that the applicant had shown to the Tribunal at the hearing was caused by the PNP political opponents as he had claimed ([82] at CB 125.4).
Again, the Tribunal weighed the applicant’s oral evidence with the corroborative evidence he had given. It considered the outpatient card but found what was on its face to be deficient in supporting his claim to have suffered an injury to his leg or that he had been in hospital for three or four days.
In the circumstances it was at least reasonably open to the Tribunal to come to this finding. Relevantly, it actively considered the applicant’s document but in light of its view of the applicant’s other evidence, and on its reading of what was on the face of the document was not satisfied that what could be drawn from the document was sufficient to overcome the concerns with the applicant’s own oral evidence.
The Tribunal also considered the translation of the newspaper article provided by the applicant. It noted that this had been provided in the context of the applicant’s claim that he could not relocate to Tamil Nadu (India) where his wife and children lived. The Tribunal noted that the article made reference to some trouble between religious groups having occurred in Tamil Nadu but also that this was controlled by police action ([83] at CB 126).
The Tribunal clearly engaged in an active consideration of the article. But even if it had not done so no error would be revealed. The applicant’s claims before the Tribunal were to fear persecutory harm in Malaysia. This was his country of citizenship. The Tribunal found that the applicant did not have a well-founded fear of Convention related persecution if he were to return to Malaysia. This conclusion was based on findings which were open to the Tribunal to make on what had been put before it.
In these circumstances there was no need for the Tribunal to consider whether the applicant could safely move to India. The article therefore was not ultimately relevant to any live issue before the Tribunal. That the Tribunal considered that document does not reveal any error on its part. In sharp contrast to what is now alleged by the applicant in his ground of complaint, the Tribunal for the sake of completeness, was concerned with dealing in a substantive way with each of the documents provided by the applicant
The Tribunal also considered the letters that were provided to it by the applicant’s wife and friend. It specifically noted that the letters stated that people were looking for the applicant in both Malaysia and India ([83] at CB 126). It is not correct to state, as the applicant does in the particulars to his ground, that the Tribunal placed no weight on the letters. In fact, it placed “little weight” on them. It did so because, after considering their contents, it found that the letters were “vague, lacking in detail and do not support the applicant’s claims regarding PNP members seeking to seriously harm him” (CB 126.8).
This assignation of weight, of course, is a matter for the Tribunal. The Tribunal’s giving of “little weight” to these particular documents was explained with reasons which were cogent and arising from its analysis, and on balance given what appeared on the face of the documents themselves.
It must be said, and with respect to the applicant or whoever drafted his amended application, that the ground is based on a misunderstanding even of the nature of the reasoning in SZNPG (FMCA), at the stage at which it was before the Federal Magistrates Court. In that case the relevant document was a baptism certificate which was said to have provided a complete answer to concerns about the applicant’s claim to have been baptised as a Christian. In that case the Tribunal found that it was not satisfied that the applicant had been baptised. The Court noted that the Tribunal did not find that the certificate was a fabrication but held it could not give it sufficient weight to rebut its conclusion that the applicant had not been honest in his evidence about his Christian faith.
The Court in SZNPG (FMCA) found that the Tribunal’s finding that there was an inconsistency in the applicant’s evidence was problematic in circumstances where it fixed on this inconsistency rather than the evidence of the baptism certificate. The Court found there was no inconsistency in the applicant’s oral evidence and the baptism certificate provided a complete answer to the Tribunal’s concern.
The Court also found that by failing to deal with the baptism certificate in any meaningful way and in light of the absence of any comprehensive finding of untruthfulness, the Tribunal fell into jurisdictional error.
This is case on which the applicant has apparently drawn from the propositions found above to put forward his ground before the Court now.
But the current circumstances in the case before the Court now can clearly be distinguished. In the current case the Tribunal dealt with each document in an appropriate and where necessary meaningful way. That is, it engaged in an “active intellectual process” in relation to each document, to the extent that was required and in light of the relevance of each document to those aspects of the applicant’s claims to which the documents were said to individually relate. There was no failure of any intellectual activity in this case, in the sense as referred to in such cases as Tickner v Chapman (1995) 57 FCR 451 and Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140.
Even if the Full Federal Court had not provided clear direction and guidance on this matter, and even on the principles relied on by the applicant his ground does not succeed before the Court.
But what was said by the Full Federal Court in SZNPG and SZNSP provides yet another, and in many ways more complete, answer to the ground in the applicant’s amended application.
In essence, in overturning what was relied on at first instance in SZNSP and SZNPG, the Full Court held that the Tribunal does not fall into jurisdictional error by first making an assessment of the applicant’s credit and then turning to the corroborative evidence. The Full Federal Court found that the corroborative evidence should be assessed and weighed in the balance with all the other evidence put before the Tribunal. This is exactly what the Tribunal did in the current case. It did so in the way that I have already explained above. On this basis also, therefore, the Tribunal did not fall into jurisdictional error.
Before the Court the applicant said that he was not satisfied with the Tribunal’s decision. On its own, this goes nowhere near to revealing jurisdictional error on the part of the Tribunal (Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259).
In submissions Mr Markus correctly in my view submitted that this statement by the applicant could more properly be seen as an expression of dissatisfaction with the factual findings made by the Tribunal. I also agree with Mr Markus that in those circumstances this Court is not in a position to review the Tribunal’s findings, other than to examine whether they fall into jurisdictional error. The applicant also put to the Court that he wanted to stay in Australia for the purpose of having a “new life”. The Court cannot assist the applicant in this regard.
Conclusion
The Court’s role is limited to considering the decision made by the Tribunal to see if it is infected with jurisdictional error. I cannot see that the applicant’s ground in the amended application reveals such error on the part of the Tribunal. For the applicant to succeed before the Court, at the very least, the Court would need to discern such jurisdictional error. As I cannot discern such error I will make an order dismissing the application.
Costs
It is appropriate in my view that an order for costs be made in this matter in the normal way. The applicant has not said anything to the Court despite opportunity to do so, nor is there anything else in the circumstances of this case that would cause the Court not to make the costs order. As to the amount that is sought, bearing in mind what is on the Court’s file and in view of the work done by the Minister’s legal representatives, I am satisfied that it is a reasonable amount in all the circumstances. I will make the order in that amount.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate:
Date: 5 July 2010
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