SZOME v Minister for Immigration

[2010] FMCA 780

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOME v MINISTER FOR IMMIGRATION & ANOR [2010] FMCA 780

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the applicant’s claims established a Convention nexus – whether the Refugee Review Tribunal’s adverse credibility findings were open to it.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36; 36(2); 65(1); 65(1)(b); 91R; 474; pt.8 div.2

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24

Applicant: SZOME

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1357 of 2010

Judgment of: Emmett FM

Hearing date: 11 October 2010

Date of Last Submission: 11 October 2010

Delivered at: Sydney

Delivered on: 11 October 2010

REPRESENTATION

Applicant appeared in person assisted by an Urdu interpreter

Solicitors for the Respondent: Ms L. Buchanan, Australian Government Solicitor

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1357 of 2010

SZOME

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 1 June 2010 and handed down the same day.

2. The applicant claims to be a citizen of Malaysia (“the Applicant”).

3. The issues in this case are whether the Applicant’s claims had a Convention nexus and whether the Tribunal’s adverse credibility findings were open to it. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.

4. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and consideration of the Tribunal’s review and decision.

Background

1. The Applicant arrived in Australia on 17 April 2009 having departed legally from Kuala Lumpur on a passport issued in his own name and a Subclass UD-976 (Electronic Tourist) visa issued on 21 March 2009.

2. On 17 December 2009, the Applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.

3. On 22 February 2010, the Delegate refused the Applicant’s application for a protection visa.

4. On 1 March 2010, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.

5. On 1 June 2010, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.

6. On 21 June 2010, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then s.65(1)(b) mandates that the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

1. In his protection visa application, the Applicant claimed that he feared persecution by a Chinese group from which a friend called Pervaiz, who lived with him, had borrowed money.

2. The Applicant claimed the Chinese group asked him to pay Pervaiz’s debt and attacked him when he failed to pay or locate Pervaiz.

3. He claimed he fled to Kuala Lumpur but was found and again attacked and saved by passers by.

4. The Applicant claimed Pervaiz was in contact with him prior to the Applicant leaving Malaysia and told the Applicant that the debt would be paid.

5. The Applicant claimed he only sought protection “for a short time” and expected to be able return to Malaysia in the near future.

The Delegate’s decision

1. On 22 February 2010, the Applicant attended by telephone an interview with the Delegate.

2. On 22 February 2010, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

3. The Delegate noted that the Applicant had not provided any information to substantiate a Convention-based claim. Further, the Delegate was not satisfied that the Applicant had provided a “plausible or credible account” of his claims.

The Tribunal’s review and decision

1. On 1 March 2010, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 15 March 2010, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 13 April 2010 to give oral evidence and present arguments.

3. On 13 April 2010, the Applicant attended the Tribunal hearing and gave evidence.

4. The Tribunal explored the Applicant’s claims with him and put to him matters of concern it had arising from his evidence, particularly in respect of inconsistencies and contradictions with the evidence given by the Applicant to the Department and the evidence given to the Tribunal and within the oral evidence given to the Tribunal. The Tribunal informed the Applicant that those matters raised “serious concerns in relation to the applicant’s credibility and the veracity of his claims”. The Tribunal noted that it told the Applicant that he did not have to comment or respond immediately and that he could seek additional time to do so. The Tribunal noted that the Applicant stated that he would like to comment or respond on the information immediately and did not request any additional time. The Tribunal stated that it confirmed with the Applicant that the Applicant had understood what had been explained to him and the Applicant answered “yes”.

5. The Tribunal noted the Applicant’s repeated request that he was seeking permission only to live in Australia for a few months following which he promised to return to his own country.

6. The Tribunal found the Applicant’s material claims lacked credibility and that he had fabricated his claims to give himself the profile of a refugee. Further, the Tribunal found that the claims made by the Applicant did not have any Convention nexus.

7. The Tribunal concluded that the Applicant does not have a well founded fear of persecution for any Convention reason and that there is no real chance in the reasonably foreseeable future that he would be at risk of persecution if he were to return to Malaysia.

The proceeding before this Court

1. The Applicant was unrepresented before this Court, although had the assistance of an Urdu interpreter. 

2. On 12 July 2010, the Applicant attended a directions hearing before me. The Applicant had requested a Malay interpreter on his initiating application, filed on 21 June 2010. However, no Malay interpreter was available on 12 July 2010. The Applicant then informed the Court that he would prefer an Urdu interpreter. For that reason, the directions hearing was stood over to 15 July 2010.

3. At the directions hearing on 15 July 2010, the Applicant had the assistance of an Urdu interpreter. I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. The Applicant confirmed that he wished to continue with the application. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing.

4. At the directions hearing, the Applicant was referred to the Court’s Legal Advice Scheme for free legal advice. The Applicant has participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in Urdu.

5. At the commencement of the hearing this morning, each of the grounds of the initiating application, filed on 21 June 2010, and an amended application, filed on 27 August 2010, were interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

6. On 30 September 2010, the Applicant filed a written submission which essentially repeated the grounds of the amended application. Otherwise, the Applicant made no relevant submission, written or oral, in support of any of the grounds of the initiating application or the amended application.

7. In Ground 1 of the initiating application, the Applicant stated that the Tribunal had erred in failing to put any weight on documents. When I asked the Applicant what were the relevant documents that he said the Tribunal failed to put weight upon, the Applicant responded that no such documents were provided to the Tribunal. The Applicant stated that the substance of his complaint was that the Tribunal had disbelieved his claims.

8. No documents or material was provided by the Applicant in support of his claims before the Delegate or the Tribunal beyond the formal documentation required with his protection visa application. In the circumstances, Ground 1 of the initiating application is not made out.

9. The Applicant informed the Court that he did not rely on Ground 2 of the initiating application, filed 21 June 2010, that stated that the Tribunal had failed to consider his “involvement and activities as a political leader”. The Applicant told the Court that he had no, and never had, any political association as a leader or otherwise. The Applicant confirmed that he did not rely on Ground 2 of the initiating application.

10. Ground 3 of the initiating application asserted that the Tribunal had failed to give the Applicant natural justice. The Applicant told the Court that by that ground he meant that the Tribunal had disbelieved his claims and had refused to give him further time to stay in Australia.

11. I explained to the Applicant that the Act and the Convention required the Tribunal to be satisfied that the Applicant met the criteria for being a refugee. I explained to the Applicant that the criteria required the Applicant to satisfy the Tribunal, as the relevant decision-maker, that he had a well founded fear of persecution for the Convention-related reasons of race, religion, membership of a particular social group, political opinion or imputed political opinion.

12. I explained to the Applicant that, even if the Tribunal had believed his claims, that, on the face of the Tribunal’s decision record, they did not appear to be capable of satisfying the criteria for being a refugee.

13. There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 15 July 2010 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if he wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.

14. In any event, a fair reading of the Tribunal’s decision record makes clear that the Tribunal’s adverse credibility findings were open to it on the evidence and material before it and for the reasons it gave. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).

15. Moreover, the Applicant’s credibility was an issue in respect of which he was on notice from the Delegate’s decision (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152 at [35] and [47]).

16. However, more fundamental to the Applicant’s claims, was an inability to establish a Convention nexus for his feared harm. The Applicant’s claims relate to a fear of “persecution” or harm from creditors of a friend with whom he lived. Nowhere in the Applicant’s written or oral claims is there a suggestion that the Applicant may be pursued or persecuted by those creditors by reason of the Applicant’s race, religion, member of a particular social group, political opinion or imputed political opinion. Any “persecution” or harm that the Applicant may fear is from indiscriminate criminal behaviour.

17. Such claims are not capable of satisfying the criteria for being a refugee. Section 65(1)(b) makes clear that if a decision maker, such as the Tribunal is not satisfied that the criteria for the visa sought are met, it must refuse the Applicant a visa. The relevant visa sought by the Applicant is a protection visa, pursuant to s.36 of the Act. As stated above, the Tribunal’s decision that the relevant criteria for a protection visa are not met was open to it on the evidence and material before it and for the reasons it gave.

18. In the circumstances, the Tribunal had no power to grant the Applicant further time to stay in Australia. Accordingly, the Applicant’s assertion in Ground 3, that the Tribunal had failed to give him justice because it had disbelieved his claims and refused to give him further time to stay in Australia, is not made out.

19. On 27 August 2010, the Applicant filed an amended application. In Ground 1 of the amended application, the Applicant asserted that the Tribunal made its decision in bad faith. The particulars in support of the allegation of bad faith were the Applicant’s disagreement with the Tribunal’s adverse credibility findings. As stated above, those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave. In the circumstances, as particularised, the allegation of bad faith does no more than seek merits review, which this Court cannot undertake (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [195] per Gummow and Hayne JJ; Minister for Aboriginal Affairs & Another v Peko-Wallsend Ltd & Others (1986) 162 CLR 24 at 40-42 per Mason J).

20. In Ground 2 of the amended application, the Applicant asserts that the Tribunal acted in excess of its jurisdiction by making the “comment” that “the applicant does not have a well-founded fear of persecution on any Convention related ground now or in the reasonably foreseeable future and that there is no real chance that he will be at risk of persecution if he returns to Malaysia now or in the reasonably foreseeable future”. This ground misconceives the role of the Tribunal and its obligation to consider whether or not the Applicant meets the criteria as reflected in the Act and the Convention for being a refugee.

21. In assessing the risk of harm to the Applicant, part of the Tribunal’s task is to consider whether there is a real chance of persecution for a Convention related reason if the Applicant was to return to Malaysia. Clearly, that task is to be undertaken in the context of an applicant’s claims. The Applicant’s claims where disbelieved by the Tribunal and, as stated above, in any event, were not capable of satisfying the relevant criteria, including the relevant definition of “persecution” in the Convention sense as reflected in s.91R of the Act. In its decision record, the Tribunal referred to the notion of Convention based persecution as considered by s.91R of the Act. As stated above, the Tribunal’s finding that the Applicant’s claims “do not establish a nexus to the Refugees Convention” was open to it on the material and evidence before it.

22. Accordingly, none of the grounds of the initiating application, filed on 21 June 2010, or the amended application, filed on 27 August 2010, are made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: 

Date:  11 October 2010