SZOLP v Minister for Immigration
[2010] FMCA 609
•11 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOLP v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 609 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Pakistan by the Taliban – Tribunal making enquiries of the applicant’s former employer – information received indicating that some of the applicant’s key factual claims were false – applicant making a further claim of persecution by reason of family association with an assassinated politician – claim rejected by the Tribunal – whether the Tribunal breached s.425 of the Migration Act 1958 (Cth) in considering that claim considered. |
| Migration Act 1958 (Cth), ss.424AA, 425 |
| SZBEL v Minister for Immigration [2006] HCA 63; (2006) 228 CLR 152 SZMRV v Minister for Immigration & Anor [2009] FMCA 8 |
| Applicant: | SZOLP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG1263 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 11 August 2010 |
| Date for Last Submission: | 15 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 11 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Young |
| Solicitors for the Applicant: | Simon Diab & Associates |
| Counsel for the Respondents: | Mr H P T Bevan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1263 of 2010
| SZOLP |
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 11 May 2010. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant, who is a citizen of Pakistan, arrived most recently in Australia on 28 July 2009 (book of relevant documents “RD” 34) and applied for a protection visa on 10 August 2009 (RD 1-130).
In his protection visa application (RD 19-22), the applicant claimed that he was a sales representative or executive with a pharmaceutical company in the North West Frontier Province of Pakistan, and particularly in the city of Peshawar. The applicant referred to terrorist attacks on the general populace in that province by Islamic extremists and claimed that he had been the victim of threats from the Taliban. He claimed that, on 22 July 2009 while at work, he received a letter from the Taliban warning him for promoting non-Muslim products and wearing non-Muslim clothes (RD 40-41). He claimed that three members of the Taliban tried to kidnap him on 23 July 2009 but that he escaped and submitted a complaint to the police (RD 37-38).
In support of his application, the applicant submitted numerous documents in addition to those referred to above, including educational certificates for himself and his wife, property documents, financial documents said to evidence his monthly salary, taxation documents, a clearance certificate from the Peshawar police, and documents in support of his employment (RD 42-130).
On 6 November 2009, the applicant attended an interview with the Minister’s delegate (RD 142.6, see also RD 236 [25]-[29]).
Also on 6 November 2009, the delegate refused to grant the applicant a protection visa (RD 142-148).
The applicant applied to the Tribunal for review of the delegate’s decision on 14 December 2009 (RD 151-154).
On 18 February 2010, the applicant attended a hearing before the Tribunal (RD 161-163), at which he submitted further documents (RD 164-189). The Tribunal’s account of this hearing is set out in the Tribunal’s record of decision at RD 237-239 [33]-[47].
On 23 February 2010, the Tribunal requested the Department of Foreign Affairs and Trade (DFAT) to contact the applicant’s employer with questions concerning the applicant’s employment and any threats made to the company (RD 214-215, RD 239 [48]).
The response was provided on 17 March 2010 (RD 210-213, RD 218-221, RD 239 [49]). Relevantly, the response from the company was that the applicant’s employment had ceased on 1 June 2009 when his employment was terminated because of “unsatisfactory performance and irregularities in work”. Further, the company had not been threatened by the Taliban, nor had it closed its office in Peshawar.
The Tribunal invited the applicant to attend a further hearing on 20 April 2010 (RD 202-203), which he did (RD 207-209). The Tribunal’s account of this hearing is set out at RD 240-243 [51]-[73].
During this hearing, and pursuant to s.424AA of the Migration Act1958 (Cth) (“the Migration Act”), the Tribunal put to the applicant information which it considered would be the reason, or part of the reason, for affirming the decision under review. The matters put to the applicant as going, among other things, to his credibility were:
a)While the applicant told the Tribunal that he had been attacked and hospitalised on 23 July 2009, he had not included this in his application, nor had he informed the Minister’s Department (RD 241-242 [57]-[59]).
b)The applicant had not informed the Department, either in his application or at interview, about his claims to have been politically active with the Awami National Party or that his uncle had been murdered in February 2009 (RD 242 [60]-[63]).
c)Enquiries with his employer had revealed that he was employed only until 1 June 2009 as a “Zonal Sales Manager” in Peshawar and that he therefore could not have received a letter from the Taliban at work on 22 July 2009, as claimed (RD 242 [64]-[66]).
d)He claimed that he had resigned on 23 July 2009 by signing a letter brought to him at his house by a staff member whereas his employer had stated that his employment was terminated because of “unsatisfactory performance and irregularities in work” (RD 242-243 [67]-[69]).
e)The applicant’s former employer had advised that the company had not been threatened by the Taliban, although its marketing team had been displaced from Mingora in Swat in the North West Frontier Province, nor had the company ceased to operate in Peshawar (RD 243 [70]-[72]).
The applicant requested an opportunity to respond in writing and the Tribunal gave the applicant a copy of the DFAT report and a copy of the hearing tape (RD 243 [72]-[73]).
The applicant responded by way of statutory declaration on 28 April 2010 (RD 222-223, RD 243-244 [74]).
By its decision made on 11 May 2010, the Tribunal affirmed the Minister’s delegate’s decision not to grant the applicant a protection visa (RD 232-251).
Tribunal’s findings and reasons
The Tribunal was satisfied that the applicant was not a witness of truth who had created his claims in order to obtain the visa sought (RD 247 [88]).
The Tribunal referred to six bases for its adverse credibility finding.
First, the Tribunal relied upon the report from the applicant’s former employer to DFAT and was satisfied that the applicant was not employed after 1 June 2009. The Tribunal was satisfied that none of the documents submitted by the applicant contradicted the employer’s report. The Tribunal was therefore satisfied that the applicant was not employed on 22 July 2009 when he claims he received a threatening letter from the Taliban when at work (RD 247 [89]-[93]).
Secondly, the Tribunal noted the applicant’s inconsistent accounts of what happened when he was confronted by the Taliban, namely the location of the attempted kidnapping and whether he was hospitalised as a result (as he told the Tribunal but not the delegate) (RD 247 [94]).
Thirdly, the Tribunal preferred to rely upon the employer’s report as to the circumstances surrounding the termination of the applicant’s employment (“unsatisfactory performance and irregularities in work”) rather than the applicant’s claim to the Tribunal that he had resigned the day after the threat (RD 248 [95]).
Fourthly, the Tribunal noted that the employer’s account as to disruptions to the operations of the company’s marketing team were consistent with a document dated October 2008 and produced by the applicant. Nevertheless, the Tribunal did not accept the applicant’s assertion that the company’s claim that it had not been threatened by the Taliban was not true. Rather, the Tribunal was of the view that, if pharmaceutical companies were in fact targeted by the Taliban, then some mention of this would have been made in the independent country information (RD 248 [96]).
Fifthly, the Tribunal found that the applicant’s claims concerning the murder of his uncle and his family’s political activities did not “ring true” because the claims had not been made either in his application or in his departmental interview (RD 248 [97]).
Sixthly, and similarly, the Tribunal rejected the applicant’s claim that he was a high profile union member because it too had not been made either in his application or in his Departmental interview (RD 248 [98]).
As the Tribunal had rejected the applicant’s claims concerning his employment, the Tribunal did not accept that the letter purportedly from the Taliban was a genuine document and it placed no weight on the letter (RD 248-249 [99]).
The Tribunal also placed no weight on the alleged police report as it did not disclose details of the claims made by the applicant at a later stage (RD 249 [100]).
The Tribunal was satisfied that the applicant was not a witness of truth and accordingly rejected his claims (RD 249 [101]) and was satisfied that the applicant did not flee Pakistan fearing Convention related harm (RD 249 [102]).
The Tribunal then considered the situation were the applicant to return to Pakistan now or in the reasonably foreseeable future (RD 249 [102]).
The Tribunal rejected the applicant’s contention that his fear was heightened because his claims were disclosed by DFAT to his former company and that this information would come to the attention of the Taliban. There was no independent information to suggest, nor had the applicant previously suggested, that there was any association between his former employer and the Taliban (RD 249 [103]). Similarly, the Tribunal rejected the applicant’s claims that his absence from Pakistan in a western country would come to the attention of the Taliban (RD 249 [104]).
While the Tribunal accepted that there is still a risk of random violence in the North West Frontier Province, the Tribunal found that the applicant runs the same risk of harm as other members of the population who are living amid civil unrest (RD 249-250 [105]).
The Tribunal did not accept that the applicant had a well-founded fear of being persecuted or that there was a real chance that he would be persecuted for a Convention reason if he returns to Pakistan now or in the reasonably foreseeable future (RD 250 [106]-[107]). The Tribunal accordingly affirmed the delegate’s decision not to grant the applicant a protection visa (RD 250 [108]-[109]).
The application
These proceedings began with a show cause application filed on 8 June 2010. The applicant now relies upon an amended application filed on 5 August 2010. That amended application raises a single ground:
1. The Refugee Review Tribunal made a jurisdictional error by failing to comply with section 425 of the Migration Act 1958 in that the applicant was reasonably given to assume that the Second Respondent accepted that a Member of Parliament who had been assassinated was his uncle.
The evidence and submissions
I received as evidence the book of relevant documents filed on 6 July 2010. The applicant sought an adjournment in order to produce additional evidence in the form of a transcript of the Tribunal hearings. I declined to grant an adjournment but gave leave for the applicant to file and serve on the respondents a transcript of the hearings conducted by the Tribunal, together with any submissions in relation to it, no later than 24 September 2010. I also gave leave for the Minister to file and serve any written submissions in reply by 15 October 2010.
The hearing proceeded on 11 August 2010 subject to that further evidence and submissions. The applicant submits that, while the Tribunal purported to go through a detailed process of oral disclosure of adverse information, pursuant to s.424AA of the Migration Act, the Tribunal did not give the opportunity at the hearings to respond to a critical issue, namely the Tribunal’s disbelief that the applicant was related to the member of Parliament he claimed to be an uncle and who had been murdered, apparently for a political reason. Further, the applicant submits that the detailed process of disclosure purportedly under s.424AA misled the applicant into assuming that the Tribunal accepted that the assassinated member of Parliament was his uncle. This is said to constitute a breach of s.425 of the Migration Act[1].
[1] see SZBEL v Minister for Immigration [2006] HCA 63.
The Minister submits that there was no breach of s.425. It was the applicant who raised at the first Tribunal hearing for the first time a claim based upon his and his family’s asserted political activities, including those of his claimed uncle. The Minister submits that the Tribunal’s record of what occurred at that hearing makes plain that the applicant must have been on notice that the Tribunal did not accept any aspect of this belated claim. The Minister further submits:
If there were any doubt about that (which the Minister submits there is not), then that doubt was removed during the course of the second hearing when the Tribunal put various matters to the Applicant pursuant to s 424AA. It is simply irrelevant that this may have taken some period of time (contrary to the suggestion in the Applicant’s Submissions at pars [16]-[17]). The statute plainly authorises the Tribunal to embark upon such a course of conduct. In any event, no possible prejudice to the Applicant could have arisen in circumstances where the Tribunal arranged for the Applicant to be given a copy of the hearing tape (see RD 243 [73]; cf Applicant’s Submissions at par [17]).
During this second hearing, the Tribunal squarely put to the Applicant its concerns. So much is clear from the exchange recorded at RD 242 [60]. It explained the relevance of the information at RD 242 [61]-[62]. Crucially, the Tribunal said this: “if the Tribunal formed the view that he was not a witness of truth about these core aspects of his claim then the Tribunal may find that it is unable to accept as truthful any aspects of his claims” (emphasis added).
The words “any aspects of his claims” clearly encompass not only the broader claim related to his alleged political activities but also other aspects such as whether or not the man who was assassinated was, in fact, the Applicant’s uncle.
The contention (at Applicant’s Submissions at par [29]) that the Tribunal implied that it had accepted the Applicant’s claims that the person murdered was his uncle simply cannot properly be maintained in the light of the Tribunal’s exchange at RD 239 [47] and RD 242 [61]-[62].
In any event, it should be noted for completeness that the Applicant chose not to respond at all to the Tribunal’s concerns related to this issue (see RD 222-223).
On 24 September 2010 the applicant filed a transcript of the Tribunal’s hearings. No additional submissions were filed either by the applicant or the Minister.
Consideration
Section 425 of the Migration Act provides:
(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.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
In SZBEL v Minister for Immigration[2] the High Court stated:
[2] (2006) 228 CLR 152 at [25]-[44].
Counsel for the respondent Minister correctly submitted, at the outset of his argument of the appeal to this Court, that "what is required by procedural fairness is a fair hearing, not a fair outcome". As Brennan J said, in Attorney-General (NSW) v Quin:
…
No submission was made on behalf of either the appellant or the Minister that the existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Act. Rather, the argument proceeded, for the most part, by reference to what had been said by the Full Court of the Federal Court in Alphaone. The Full Court (Northrop, Miles and French JJ) said[18]:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (emphasis added)
Particular attention was directed in argument in this Court, as it had been in the courts below, to the Tribunal's conclusion that the three identified elements of the appellant's story were not "plausible". Was that a conclusion "which would not obviously be open on the known material"? Or was it no more than a part of the "mental processes" by which the Tribunal arrived at its decision?
Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision-making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged.
In Alphaone the Full Court rightly said:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. (emphasis added)
The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review". The reference to "the issues arising in relation to the decision under review" is important.
…
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
…
When it is said, in the present matter, that the appellant was not put on notice by the Tribunal that his account of certain events would be rejected as "implausible", and that this conclusion was "not obviously ... open on the known material", the focus of the contention must fall upon what was "obviously ... open" in the Tribunal's review. That can be identified only by having regard to "the issues arising in relation to the decision under review". It is those issues which will determine whether rejection of critical aspects of an applicant's account of events was "obviously ... open on the known material".
If the issues on the review of the delegate's decision by the Tribunal are identified no more particularly than by the question "is the applicant entitled to a protection visa?", rejection of some, or all, aspects of his account of the past events said to found his fears of persecution would self-evidently be a conclusion open to the Tribunal. The conclusion would be open because every aspect of the applicant's claim would be in issue in the Tribunal's review of the delegate's decision. But if the issues are to be identified more particularly, other questions arise.
…
The appellant's complaint in the present matter can be expressed in different ways. It could be described as being that the Tribunal acted upon unstated assumptions about the nature of Iranian society, when it decided that three aspects of his account were implausible. So, to take one of the three critical issues, when the Tribunal concluded (as it did) that it was implausible that what was said in a conversation between friends over coffee would come to the attention of a fellow member of the appellant's crew and thus be conveyed to the ship's captain, the Tribunal assumed that matters of religious interest would not ordinarily be the subject of gossip in a town in such a way as to come to the attention of a fellow crew member. The appellant says that he had no notice that the validity or content of the cultural and other assumptions that underpinned his account were in issue.
But closer examination reveals that the appellant's complaint is more deep-seated than a complaint about the making of unstated cultural assumptions. It is that he was not on notice that his account of how his ship's captain came to know of his interest in Christianity, and his account of the captain's reaction to that knowledge, were issues arising in relation to the decision under review.
The delegate had not based his decision on either of these aspects of the matter. Nothing in the delegate's reasons for decision indicated that these aspects of his account were in issue. And the Tribunal did not identify these aspects of his account as important issues. The Tribunal did not challenge what the appellant said. It did not say anything to him that would have revealed to him that these were live issues. Based on what the delegate had decided, the appellant would, and should, have understood the central and determinative question on the review to be the nature and extent of his Christian commitment. Nothing the Tribunal said or did added to the issues that arose on the review.
Conclusion: entitlement to relief
The Tribunal did not accord the appellant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.
The applicant asserts that the Tribunal breached s.425 in that the applicant was given to assume that the Tribunal accepted that a member of the Pakistan parliament who had been assassinated was his uncle. On the authority of SZBEL, the applicant’s claims concerning his family’s political activities, which were raised after the delegate’s decision, needed to be raised with the applicant at the hearing if the Tribunal regarded the timing of the raising of the claims as an issue of significance and was therefore minded to disbelieve them.
At the second Tribunal hearing on 20 April 2010 the following exchange occurred between the presiding member and the applicant bearing upon this issue[3]:
[3] Transcript 20.04.10, from page 6, line 4 to page 7, line 37.
Q. No sir, I propose to put to you that you told the Tribunal that Zeb Khan was your uncle and he was murdered in February 2009 and he and his family were actively involved in a election campaigning. They received – you and your family received threatening letters and telephone calls in December and January of 2008 to 2009.
A. Yes.
Q. Now, you did not inform the department in your protection visa application or at a department interview about your political activity with the NPA.
A. Last time whatever I was asked I responded to those questions.
Q. Now sir, you didn’t inform the department in your protection visa application about your activities with the NPA or the threats. Nor did you inform the department, at a departmental interview, about these activities or threats. Or that you received threatening letters or telephone calls prior to your uncle’s murder. Now sir, this information is relevant as it may suggest that you are not a witness of truth and that you creating your claims in order to obtain the visa sought. Sir, if the Tribunal formed the view that you are not a witness of truth about these core aspects of your claim then I may find that I’m unable to accept that any of your claims are truthful. Now, sir do you wish to respond to or comment on the information or do you wish additional time to comment on a respond to the information verbally or in writing?
A. I – I can give you letter in writing.
Q. When do you propose to do that, sir?
A. Within three – three – two/three days.
Q. To both those questions?
A. Can you please repeat those questions again?
Q. Yes. At the previous Tribunal hearing you told the Tribunal that you had received a threatening letter on 22 July whilst you were at work.
A. Yes.
Q. That you were subsequently attacked on 23 July in the street near your office. You were injured and required hospitalisation.
A. Yes.
Q. At the department interview you told the department that on 23 July the Taliban came to your office, tried to kidnap you and you ran away from your office and went home.
A. In the last Tribunal I explained everything that I was beaten up and that I went to hospital and then I was discharged and in the evening and then I came – came back.
Q. Now, are you now answering, responding to my question?
A. I trying – I’m still trying to find question, what is the question?
Q. I am going to tell you the question again. You’ve told me that you want to respond in writing and you’ve now tried to answer the question. There is a formal, legal process that I have to go through when I put certain things to you. You can either [choose] to respond to me now at the hearing or you can [choose] to respond to me in writing. What would you like to do?
A. I will note down the question and answer you in two/three days.
Q. Right, so I’m going to re-do that question because you started talking before I finished. At the previous tribunal hearing you told me that you received a threatening letter on 22 July whilst you were at work. You were subsequently attacked on 23 July in the street near your office. You were injured and you required hospitalisation. At your departmental interview you told the department that on 23 July the Taliban came to your office, they tried to kidnap you and you ran away from your office and went home. You told the department that the Taliban came to your home but you didn’t come out of your room. In your protection visa application you told the department that you received a threatening letter and you did not inform the department that you were attacked the next day or that you were hospitalised. Now, this information is relevant sir, because it may suggest that you’re not a witness of truth.
Now, the second question that I’m going to put to you sir, is that you told the Tribunal that [Zeb] Khan was your uncle who was murdered in February 2009 and that you and your family were actively involved in election campaigning. You told me that you and your family received threatening letters and telephone calls mostly in December and January of 2008 to 2009. You did not inform the department in your protection visa application or at a department interview about your political activity in the National Party, the NPA or that you and your family received threatening letter and telephone calls prior to your uncle’s murder. Now sir, this information is relevant as it may suggest that you are not a witness of truth and that you are creating your claims in order to obtain the visa. If I formed the view that you are not a witness of truth about these core aspects of your claim then I may find that I am unable to accept as truthful any aspects of your claims. I think, sir, that you told me that you wished to respond in writing to the tribunal, is that correct?
A. Yes.
That discussion was undertaken by the presiding member for the purposes of seeking to comply with the oral disclosure requirements of s.424AA of the Migration Act. As I have said previously, however[4], the process of oral disclosure purportedly undertaken for the purposes of s.424AA may also serve the purpose of meeting the Tribunal’s obligation to put an applicant on notice of essential and significant issues upon which the review would turn. In my view, the process undertaken by the presiding member put the applicant on notice that the Tribunal was inclined to disbelieve as a recent invention his claim that his uncle was murdered in February 2009 and that he and his family were actively involved in election campaigning.
[4] SZMRV v Minister for Immigration & Anor [2009] FMCA 8 at [25].
The Tribunal fairly summarised the exchange set out above in its reasons at [59]-[63] (RD 242).
The Tribunal dealt with the applicant’s claim concerning his uncle at [97] of its reasons (RD 248). The Tribunal stated:
Fifthly, the applicant told the Tribunal that Zebkhan, an MP from the ANP was murdered in February 2009. I accept that this occurred. The applicant claims that Zebkhan was his uncle and that he and his family were actively involved in election campaigning. He also claimed that he and his family had received threatening letters and telephone calls mostly in December and January of 2008-9. This claim had not been made to the Department in his PVA or at a Department interview. I am of the view that had MP Zebkhan been the applicant’s uncle who was murdered or had the applicant been a supporter of the ANP who was actively involve din campaigning for the ANP and who was threatened or harmed for his political activity some mention would have been made in his PVA, the very document where he made his claims for protection. It does not ring true. I find that the MP Zebkhan was not the applicant’s uncle and I find that he was not a supporter of the ANP actively involved in campaigning for that political party.
The “he” referred to in the third last line of the passage quoted above must be a reference to the applicant, not Zebkhan. I accept from the evidence of the transcript referred to above that at the second Tribunal hearing the applicant was put on notice by the Tribunal that the Tribunal might disbelieve his claim that Zebkhan was his uncle. When read in context, the references to “your uncle” are properly seen as references to an asserted association, not an acceptance of that association. I assume that there was independent information about the murder of Zebkhan in February 2009. The Tribunal appears to have reasoned that the applicant was seeking to associate himself and his family with a real event (the murder of a member of parliament) in order to support his claims but that association did not exist. The applicant was put on notice by the Tribunal at the second Tribunal hearing that the Tribunal might regard this claim as a recent invention and disbelieve it. I reject the proposition in the application that the applicant was “given to assume” that the Tribunal accepted that Zebkhan was the applicant’s uncle. It follows that the ground of review advanced in the amended application must fail.
No other assertion of error is advanced against the Tribunal. I conclude that the Tribunal decision is free from jurisdictional error and is therefore a privative clause decision. The application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 November 2010
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