SZOQM v Minister for Immigration - [2011] FMCA 122

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOQM v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 122

MIGRATION – RRT decision – Sinhalese student claiming persecution for association with LTTE – disbelieved by Tribunal – no jurisdictional error shown – application dismissed.

Migration Act 1958 (Cth), s.424A

Minister for Immigration & Citizenship v SZJSS [2010] HCA 48
Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425

Applicant:

SZOQM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2098 of 2010

Judgment of:

Smith FM

Hearing date:

23 February 2011

Delivered at:

Sydney

Delivered on:

23 February 2011

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr G Johnson

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2098 of 2010

SZOQM

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant arrived in Australia in November 2009 on a student visa, which is still current but due to expire soon. On 11 December 2009, he applied for a protection visa assisted by a solicitor. A statement attached to the visa application set out a history upon which he claimed to fear persecution if he returned to his country of nationality, Sri Lanka. His solicitor forwarded an amount of general country information, both to the Department and subsequently to the Tribunal, but no corroborative documents or witnesses were presented in support of the applicant’s personal history.
The applicant’s claims changed to some extent during the course of the proceedings, but in essence the Tribunal correctly summarised the central claim in its statement of reasons:
94.The applicant’s claims are based on the Convention grounds of political opinion. Essentially, the applicant, who is Sinhalese, claims that in December 2008, a Muslim classmate whom he had not seen since August 2008 came to stay with him in [his home town]. The friend, who was fearful of individuals stalking him, disappeared after a “shootout” on the applicant’s front yard, involving some Tamil men. The applicant was questioned by the authorities at home in December 2008 and March 2009. The applicant was told that his friend had fought alongside the LTTE before being captured by the army. He was involuntarily undergoing training by the army to fight against the LTTE when he escaped from the training camp with weapons. The applicant claims that he was abducted and mistreated by a pro‑government Tamil group in August 2009 because of his association with a suspected LTTE fighter. He fears being kidnapped and harmed again if he were to return to Sri Lanka.
In addition, the applicant presented some background matters, which he suggested were related to his being pursued by government authorities or their associates. The background related to his father, who had been a union representative in a commercial organisation, and had been a supporter of the UNP party. According to the applicant, this had resulted in the applicant’s father being at times harassed, and on one occasion being abducted and threatened. The applicant also suggested that there was some motivation in the actions taken against him by reason of his having worked as a clerk for a family connection, who is a Muslim UNP Member of Parliament.
A delegate interviewed the applicant about his claims on 3 March 2010. The delegate made a decision refusing the protection visa application on 4 March 2010. The delegate accepted that the father “may have been the victim of some form of harassment in Colombo during a period”, but was not satisfied that this had “any relevance in regard to the applicant’s claimed risk of harm”. The delegate also found implausible some of the claimed involvement of the father in politics. The delegate was satisfied that prominent UNP members had been subject to threats and intimidation, but was not satisfied that “the available information supports a finding that someone with the applicant’s profile is at risk of political persecution”.
Concerning the applicant’s claims relating to his Muslim friend, the delegate said: “I do not accept the central premise put forward by the applicant that links his claimed kidnapping to an LTTE profile attributed to him through his association with his Muslim friend from Batticaloa”. The delegate pointed to implausibilities in relation to the claimed history of the friend, and to country information suggesting that Muslims would not support the LTTE or be fighting for them. The delegate also thought that “if the authorities suspected the applicant of LTTE involvement then the available information indicates he could have been arrested and detained by the authorities at any time”, and would not have been left at large in the manner he claimed.
The applicant appealed to the Tribunal. Initially, he was unrepresented, but his solicitor later was appointed as his representative, and made a written submission to the Tribunal. The submission attempted to meet the points made by the delegate, including by making obscure reference to “Karuna and EPDP cadres”, who were “waging war against the LTTE after the 2004 general election”. It was submitted that “the delegate failed to consider the facts that the criminals are the paramilitaries belonging to the Karuna and EPDP parties working for the government authorities to track down LTTE sympathisers”.
An association of the applicant’s friend with the EPDP party was also claimed by the applicant when he attended a hearing of the Tribunal on 2 June 2010. According to the Tribunal:
62.The applicant explained that [the friend], a Muslim, was his best friend at school and the authorities suspected him of being involved with [the friend]. He was told by army officers that [the friend] was connected with the LTTE, but later joined the Eelam People’s Democratic Party (EPDP) headed by Karuna, which had joined forces with the Sri Lanka security forces. [The friend] had stolen weapons from an army camp and came to stay with the applicant and the security forces had thought that [the friend] had brought weapons to the applicant’s place. He stated that he was kidnapped because he was perceived to have information about [the friend], but he had no such information.
Although the applicant was sent a copy of the recording of the Tribunal’s hearing, both in June 2010 and again in September 2010, no transcript of the Tribunal’s hearing has been tendered, and there is no reason not to accept the description of the hearing given by the Tribunal. The hearing appears to have lasted nearly four hours.
According to the Tribunal’s description, the applicant was questioned closely about all the elements in his claimed history, including various matters of concern to the Tribunal. Its questioning included the applicant’s claims about his father’s association with politics, and his own movements and activities in Sri Lanka. I am unable to identify any issue relied upon by the Tribunal in its ultimate decision, which was not adequately canvassed with the applicant at the hearing. It also canvassed some of the matters in a written invitation to comment, which was sent to the applicant and responded to after the hearing. Some of the matters of possible concern which were raised did not subsequently form part of the Tribunal’s reasoning.
The Tribunal made a decision on 23 August 2010, affirming the delegate’s decision. In its “Findings and Reasons”, the Tribunal reached a conclusion that the applicant was not a credible witness:
97.The Tribunal finds the applicant not to be a credible witness. In reaching this view, the Tribunal has had regard to the internal inconsistencies in his evidence, inconsistencies between his evidence and the country information before the Tribunal, implausibility of key aspects of his claims and other reasons detailed below.
The Tribunal then provided, with respect, an intelligently reasoned explanation of its adverse findings of credibility. The Tribunal made a number of discrete points, which cumulatively led it to disbelieve the applicant. Most of those points are obviously rational and are based on evidence which allowed that reasoning to be adopted.
The Tribunal thought that it was “most peculiar that the applicant had not asked [his friend] anything about the nature of his problem”. It thought that the applicant had not been adequately able to meet the concern of the delegate that a Muslim young man would not have trained and fought alongside the LTTE in the circumstances of the applicant’s friend. According to the Tribunal, there was no country information suggesting that this had happened after 1990.
The Tribunal thought that the applicant had not been able to explain why the CID would disclose potentially sensitive information concerning his friend’s background, if the applicant was himself suspected of being associated with an LTTE escapee.
The Tribunal considered the applicant’s new claim that the investigators had suggested that his friend had later joined the EPDP. It thought his explanations for previously omitting this claim to be unsatisfactory, and also that it asserted a fact which was not correct according to country information.
The Tribunal thought it significant that the applicant was “unable to explain why, despite the apparent seriousness of the accusations against him, the authorities had shown no serious interest in him”. According to the applicant’s account, they had only questioned him for a few hours after the incident in December 2008, and then again in March 2009, and then took no further action until August 2009.
The Tribunal said that its concerns “were exacerbated by the inconsistencies in the applicant’s evidence regarding his movements between December 2008 and August 2009”. It then explained various inconsistencies in the applicant’s account, as to when he was living in the family home or with his mother or with his father over that period.
The Tribunal commented upon the absence of any claim by the applicant that his father had been questioned, investigated or subjected to any adverse treatment by the authorities for allowing an LTTE escapee to stay in the father’s house. The Tribunal clearly put significance on country information, which indicated “that security forces have subjected suspected non‑Tamil LTTE sympathisers to the same treatment as ethnic Tamils – that is, arrest and detention without trial under Emergency Regulations”, and said this led the Tribunal to have “serious doubt regarding the applicant’s claims relating to his and his father’s treatment in the period immediately after hosting [the applicant’s friend] at their house”.
The Tribunal thought it “highly implausible” that the applicant’s MP employer would have assisted “an allegedly former LTTE fighter who was armed and on the run from the authorities”.
The Tribunal thought that the applicant’s evidence about his abduction in August 2009 revealed inconsistencies, in particular as to the number of people who had abducted him. The Tribunal considered his responses in relation to this and other concerns, which blamed interpreters at his interviews. The applicant made general assertions that there was inadequate interpretation at the interview at the Department and possibly also at the Tribunal hearing, without particularising defects of interpretation. The Tribunal said that he had not raised concerns about the quality of interpreting during the Tribunal’s hearing, and it said:
… the applicant’s persistence on blaming the interpreter without providing specific examples of what exactly was said and how it was interpreted is a disingenuous attempt to shift blame for the deficiencies in his evidence.
The Tribunal then addressed the applicant’s claims about his father’s activities and associated problems, in so far as they were “separate to his claims relating to [his friend]”. The Tribunal noted inconsistencies in the applicant’s claims about an assault or abduction of his father in September 2008, and did not accept those claims, nor “any claims flowing from these claims relating to the applicant’s fear of harm”.
The Tribunal noted a submission in the post‑hearing correspondence, which gave a general explanation for his inconsistent evidence:
115.In his response to the Tribunal’s 424A letter, the applicant also referred to being a “student”, confused, worried, excited, inexperienced and nervous as reasons behind the inconsistencies in his evidence. The Tribunal appreciates that many applicants tend to be anxious and wary of authority when presenting their claims before the Department and/or the Tribunal. However, in the Tribunal’s view, these factors do not explain the particular problems the Tribunal has identified in the applicant’s evidence above; and do not address the depth and the breadth of the Tribunal’s concerns with regard to the credibility of his overall claims. The Tribunal is of the view that the applicant has fabricated his claims and concocted evidence to achieve an immigration outcome.
The Tribunal concluded:
116.The Tribunal, therefore, does not accept that the applicant was a member or supporter of the UNP. The Tribunal does not accept that the applicant’s evidence regarding his employment to be genuine. The Tribunal does not accept that the applicant was associated with or accommodated in his house a former Muslim LTTE fighter. The Tribunal does not accept that he was suspected or questioned by the authorities in connection with this person. The Tribunal does not accept that he was abducted, and was physically and sexually assaulted by unidentified Tamil men in August 2009. The Tribunal does not accept that he was ever threatened or harmed for the reasons he has stated. The Tribunal does not accept that the applicant is wanted by the Sri Lanka authorities, EPDP, TMVP or any other group for the reasons he has provided. The Tribunal does not accept his father was a member of the UNP, a supporter of the party or a union organiser. The Tribunal does not accept that the applicant’s father was abducted, assaulted or harmed for the reason of his political opinion. The Tribunal does not accept that the Sri Lankan authorities had or have any interest in him for his express or imputed political opinion, membership of a particular social group, including his family or any other particular social group apparent on the face of the evidence. The Tribunal does not accept that the applicant has been harmed in the past or that, if he were to return to Sri Lanka now or in the reasonably foreseeable future, there is a real chance that he will be harmed for the reason of his race, religion, nationality, political opinion, membership of any particular social group, or any other Convention reason. The Tribunal is not satisfied that the applicant’s fear of persecution is well‑founded.
The applicant now asks the Court to set aside the Tribunal’s decision, and to remit the matter for further consideration. I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The grounds of his application are contained in his original application:
1.The Tribunal completely relied on wrong issues in assessing the Applicant’s credibility and made a jurisdictional error. The Tribunal disregarded the fear the Applicant had when he fled the country and constantly manipulated its questions to confuse the Applicant and thereby made procedural error and thus made a jurisdictional error.
2.The Tribunal knowingly failed to consider the relevant claims made by the Applicant in the original claims and later in the submissions and the reasons given therein and with an preconceived notion of rejected the Applicant’s claims on credibility grounds and thus made a jurisdictional error.
3.The Tribunal made a jurisdictional error by not giving the Applicant an opportunity to explain in writing, any doubts the Tribunal had. The Tribunal failed to comply with procedural fairness and thus made procedural and jurisdictional error.
4.The Tribunal made an error in Law in not accepting the Applicant as a student who had been working to gain knowledge in the political field and further failed to take into consideration the Applicant’s background such as age, work and experience before rejecting his claims on credibility grounds and thus made a jurisdictional.
These grounds are not easily understood, even with the assistance of a written submission also filed by the applicant.
I am unable to identify any “wrong issues” which were relied on by the Tribunal. In my opinion, the grounds upon which the Tribunal rejected the applicant’s credibility were all rational, based on the evidence before the Tribunal, and open to a reasonable decision‑maker.
It appears to be suggested in the submission, and was again suggested by the applicant in his oral submissions to me, that the Tribunal failed to address a claim of fear to return to Sri Lanka, based on his father’s political activities and his own association with his father, in a situation where the UNP was in opposition to the current government.
However, in my opinion the Tribunal did address that claim, to the extent that it was presented by the applicant as a subordinate element in his refugee claims. It did so, as I have explained above, by rejecting the claimed abduction or assault on the father, and also by making positive findings which rejected the claimed close association of the applicant’s father with the UNP party. It appears to me that in view of the Tribunal’s findings on credibility as to the applicant, and the absence of any corroborative evidence, those findings were open to the Tribunal.
There is no substance shown for the assertion that the Tribunal “constantly manipulated its questions to confuse the Applicant”. Nor that it conducted its hearing in a confusing manner, or “with a preconceived notion of rejecting the Applicant’s claims on credibility grounds”. In effect, the applicant makes serious allegations as to the bona fides of the Tribunal, and alleges actual bias by the Tribunal. A transcript of the hearing has not been presented, and there is no evidence before me giving any substance to those allegations.
Even in relation to the less serious allegation of apprehended bias, it has been repeatedly pointed out that criticisms of a statement of reasons provided by the decision‑maker normally can provide no evidence of a closed mind before the making of the decision (see, recently: Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51 at [18], [25] and [26], and Minister for Immigration & Citizenship v SZJSS [2010] HCA 48 at [44]). In the present case, I can find no evidence supporting a ground of apprehended bias under principles applied by the High Court in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, (2001) 179 ALR 425.
The suggestion that the Tribunal made a jurisdictional error of procedure by “not giving the Applicant an opportunity to explain in writing, any doubts the Tribunal had” was clearly not established, and appears contrary to the evidence before me. It appears to me that the substance of the reasoning adopted by the Tribunal was fully explored by the Tribunal at the hearing, and the applicant was given a reasonable opportunity to answer it on that occasion. Without being required by the Migration Act, the Tribunal also gave further opportunity for the applicant to respond in writing to some concerns, and he availed himself of that opportunity. The fact that some of his responses did not convince the Tribunal, does not provide evidence of any failure of procedural fairness.

The assertion in Ground 4 that the Tribunal failed to consider the applicant’s background “as a student” and other matters is not made out. In the paragraph which I extracted above, the Tribunal considered a submission raising these matters, and it took them into account. The defects which the Tribunal found in the applicant’s refugee claims were, in my opinion, properly characterised by the Tribunal as not being explained by the background matters referred to by the applicant.
In his written and oral submissions, the applicant developed this contention by suggesting that the Tribunal wrongly assumed knowledge by the applicant of political matters, in particular as to the leadership of the EPDP party. However, I am unable to identify any such error, whether it be characterised as error of fact or jurisdiction. It appears to me that at paragraph 101 the Tribunal disbelieved the applicant’s claim to have been informed by investigators that his friend had “joined the Eelam People’s Democratic Party (EPDP) headed by Karuna”, not because the Tribunal expected the applicant to know whether such an assertion would reflect accurate knowledge, but because country information that Karuna was not the head of that party suggested that the investigators would not have said it to him.
Moreover, the Tribunal correctly identified that it was the applicant’s own submission from his solicitor, and then his evidence to the Tribunal, that related the EPDP party to the activities of his friend, apparently in response to the delegate’s concerns about a Muslim youth taking up arms for the LTTE. I am unable to identify any error arising from the applicant’s submissions concerning this.
The applicant today also maintained that he was scared to go back to Sri Lanka. However, it is not my function to decide whether the applicant has genuine fears for return.
Taking into account all of the applicant’s submissions, I am unable to identify jurisdictional error which would allow me to remit the matter to the Tribunal to reconsider his refugee claims. I must therefore dismiss the application.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Smith FM

Date: 4 March 2011