SZORG v Minister for Immigration
[2011] FMCA 121
•18 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZORG v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 121 |
| MIGRATION – Review of RRT decision – applicant a citizen of Fiji who claimed he had been attacked by soldiers after speaking out about human rights abuses – where Tribunal was aware of inconsistencies in applicant’s evidence and did not accept his claims – apprehended or actual bias – where no transcript in evidence – whether Tribunal erred by allowing applicant to discuss claim without asking him to address specific issues – whether Tribunal failed to give proper, genuine and realistic consideration to his claims or breached s.424A. |
| Migration Act 1958 (Cth), ss.91R(3), 424A |
| SZDFO v Minister for Immigration [2004] FCA 1192 WAKS v Minister for Immigration [2006] FCAFC 32 SZHVL v Minister for Immigration [2008] FCA 356 Minister for Immigration v SZJSS [2010] HCA 48 |
| Applicant: | SZORG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2172 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 18 February 2011 |
| Date of Last Submission: | 18 February 2011 |
| Delivered at: | Sydney |
| Delivered on: | 18 February 2011 |
REPRESENTATION
| For the Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2172 of 2010
| SZORG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Fiji who arrived in Australia on 20 August 2009 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 16 October 2009. On 14 January 2010, a delegate of the Minister refused to grant a protection visa and on 3 February 2010 the applicant applied for review of that decision from the Refugee Review Tribunal.
The applicant had representation in preparation of his application to the Tribunal but not at a hearing which the Tribunal granted him on 23 March 2010. On 23 April 2010 the Tribunal, having sent the applicant a letter purportedly pursuant to s.424A of the Migration Act1958 (Cth) (the “Act”) and received a response, determined to affirm the decision under review and handed that decision down on the same day.
The Convention ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was that of political opinion. The applicant gave a history of being a teacher in a Seventh Day Adventist school who harboured serious concerns about the manner in which the government of Fiji, under its current military administration, acted in relation to the human rights of the citizens of that state.
The applicant told that he would travel around the area in which he lived and worked giving talks to persons, in particular young persons, promoting better education and governance in Fiji. He said that during these talks he would present his political opinions, which included his criticism of the government. The applicant was also involved in making presentations about excessive use of drugs and alcohol, but that at these times he would also speak out about the political situation.
The applicant claimed that on 16 December 2008 the military had heard that he was presenting at a college where he was teaching. He said that he was detained with three of his cousins. He was taken to a river near his township and ordered out of the vehicle. He heard a soldier say that this was because he had been making comments opposing the military government of Fiji. He said that he and his companions were taken to the side of the river and were made to lie down.
They were beaten around the stomach area with rifle butts and ordered to strip naked and lie on their stomachs. He was trampled with military boots on his head and neck. He was also kicked in the ribs. He could hear the cry of his cousins who were also lying on their stomachs. He was threatened that if he continued to make statements against the military government he would be brought back to this spot again, shot, and his body would be thrown into the river, his house would be invaded and his wife and children would be raped.
The applicant told that he was then let go by the soldiers and he and his colleagues managed to get back to their township and reported the incident to their family. He said that after this, whilst he did not have too much contact with the military, he did observe on two occasions the same vehicle stopping and people who were dressed in civilian clothes watching him. He believed that this was associated with questions being asked about him continuing his teaching work at the college and was associated with the regime’s suspicion of him.
The Tribunal asked the applicant about other incidents. He told that some inquiries had been made of his wife since he had come to Australia, and there was an incident which he described in detail when the army arrested some people who later turned out to have been involved in drugs, which seems to me to be irrelevant for the purposes of this application.
The applicant told that in about August 2009 he had an opportunity to come to Australia for a Seventh Day Adventist conference and he took advantage of that. He said that he was traumatised by the incidents and that it took him some time before he was in a position to lodge an application for a protection visa. His wife remained in Fiji but he believed that she and his family were at risk.
The applicant said that he had taken part, in an anonymous way, in blogging activities whilst he was in Fiji, criticising the government. When he came to Australia he continued to do this but in January 2010 he had put his name up and his photograph on the website so that he could be identified. He said that he did this at the time because he felt safe in Australia, although he utilised the fact that his name and photograph were available as an additional ground for fearing to return.
The Tribunal questioned the applicant upon his statements and indicated to him that it saw some inconsistencies within them. These were later the subject of a letter purportedly written under s.424A [108] [CB 207] but, in fact, it was just a letter requesting information which the Tribunal was entitled to write as the matters raised do not fall within those required to be raised with an applicant pursuant to that subsection.
The letter points out an inconsistency between the date upon which the applicant told that he had been taken by the military, Tuesday 13 December 2008, and a later correction that this occurred on Tuesday 16 December 2008 because 13 December was not a Tuesday; it was a Saturday. The same inconsistency related to the statement in a letter from the applicant’s wife which also mentioned 13 December, and raises concerns with the Tribunal because the applicant had said that he had not told his wife what to write.
The third matter was that the applicant initially claimed that two of his cousins were arrested with him but later said that it was two friends. Then he said there were three friends. There was further interchangeable use of the word “cousins” and the word “friends”.
Then the Tribunal pointed to an inconsistency between the applicant’s evidence that he had been mistreated on 16 December 2008 and the letter from his cousin, which said that they were taken in one night in December. The fifth inconsistency was about what happened after the incident, when the applicant said that he had to walk back for about three hours before he hitched on a truck to the local town and from there on another minibus to the school. But at the Tribunal hearing he gave evidence that he walked from the riverbank to the road and that he told a farmer about what had happened and the farmer drove him and his companions to his home, and that it was midnight when he got home and not 2.00 am as he had previously said. The sixth inconsistency was that the applicant had told the delegate that the military had approached his wife on three occasions since he left Fiji, but he told the Tribunal that she had only been approached on two occasions. And finally, it was said that the applicant gave evidence that he started blogging in the beginning of 2010 and that he had blogged in his own name and with a photograph of himself; whereas at the interview with the delegate on 7 January 2010 he informed the delegate that he was very careful when blogging and did so without giving his name or identifying himself.
The applicant responded to these concerns in a detailed statutory declaration which the Tribunal took into account but did not give weight to. The applicant also produced to the Tribunal a more detailed medical report [CB 185] which indicated that he was suffering from post-traumatic stress disorder. It also noted that the applicant was experiencing the emergence of more memories and more clearly as treatment progressed.
In regard to that medical report, the Tribunal said in [120] [CB 209]:
“The Tribunal has considered the two letters from the Transcultural Mental Health Centre dated 22 March 2010 and 6 April 2010. The letter dated 6 April 2010 states that the applicant has been diagnosed with post-traumatic stress disorder and his symptoms are consistent with this diagnosis. These letters do not indicate how many sessions the centre had with the applicant, the length of those sessions, over what period of time an assessment was made and whether the assessment was based upon independent tests or on the history provided by the applicant.
The Tribunal has had the opportunity of observing the applicant over a lengthy hearing. Whilst the Tribunal does not have the qualifications or experience to make mental health assessments, the applicant’s appearance, conduct and his ability to answer questions during the course of the hearing were not consistent with the assessment made by the Transcultural Mental Health Centre. For the reasons given above, the Tribunal places little weight on these two letters.”
The Tribunal rejected the applicant’s claims based upon a finding that it could not accept him as a credible witness, and the reasons it gave for that were the inconsistencies which have previously been alluded to and the effective rejection of the evidence proffered in his support. It also took the view that as the identified blogging had not commenced until after the delegate’s decision had come down that it was not able to be satisfied that the applicant had engaged in this conduct otherwise than for the purpose of strengthening his claim to be a refugee and, thus, all evidence concerning blogging and its problems for the applicant would have to be excluded pursuant to the provisions of s.91R(3) of the Act.
Rather than merely saying that the Tribunal could not be satisfied that the applicant had established that he was a person to whom Australia owed protection obligations, it went on to tell that it did not accept he was involved in an election campaign, did not accept that he and his three cousins were taken away by the military on 16 December 2008 and subjected to assaults and, indeed, did not accept anything that he said other than the fact that he was teacher working for the Seventh Day Adventists.
On 7 October 2010 the applicant applied for review of the Tribunal’s decision from this Court. The applicant attended the hearing today and spoke for himself. He is a mature and articulate applicant who finds it difficult to understand why the Tribunal did not believe his apparently simple tale. It is therefore well that I should import into this decision the views expressed by Allsop J in SZDFO v Minister for Immigration [2004] FCA 1192 at [8] – [12], which explain the role of the Court in this type of case and what will be the role of the Federal Court in the inevitable appeal from this decision:
“The structure of the legislation, being the Migration Act and in particular s 474 of that Act, as interpreted by the High Court in Plaintiff S157 of 2002 v Commonwealth (2003) 211 CLR 476 only entitles the Federal Magistrates Court or this Court to interfere with what the Tribunal has done if there is found to be what is referred to as jurisdictional error.
What that means is as follows: the error to be demonstrated as committed by the Tribunal must be one that reveals a failure to carry out its statutory task. That is, it must be shown that the statutory authority and duties placed upon the Tribunal have not been complied with. Examples of that kind of error are as follows: that the Tribunal has misunderstood the correct question that it should be dealing with; that the Tribunal has failed to deal with the claims as they are put by the applicant; that the Tribunal has failed to afford the applicant procedural fairness in the way it dealt with the matter; that the Tribunal failed to take into account a consideration the law made compulsory to consider; and that the Tribunal took into account a consideration that the law made compulsory not to consider.
These are the main examples. Conformably with High Court authority, factual error is rarely reflective of jurisdictional error. There may be circumstances where findings of fact are such as to demonstrate that the Tribunal has misunderstood its task. There may be circumstances where the findings of fact are so irrational or capricious as to display a failure of the Tribunal to attend conscientiously and appropriately to its statutory obligations.
Within the kinds of boundaries that I have just identified the findings of fact and the assessment of evidence is a matter for the Tribunal in the exercise of the executive power. The Parliament has chosen not to permit the courts to review factual material beyond the proper confines of identifying jurisdictional error. It is against that legal background that the appellant needs to understand the reasons for the disposition of his appeal.
It should be plain, I hope, from what I have said that it is simply outside my statutory authority and judicial authority to make up my own mind as to whether Australia owes the appellant protection obligations. The only task I am permitted today is to seek to identify whether the learned Federal Magistrate committed any reviewable error in his approach to the dismissal of the application made in respect of the Tribunal's decision.”
The grounds of application described in the document as “grounds of appeal” are 19 in number but have to be read together. The general complaint is one of apprehended or actual bias. There is a secondary complaint that the manner in which the Tribunal ran the hearing, allegedly by not addressing specific issues but by asking the applicant to say what he wanted, prevented the applicant from focussing his evidence in a way that would allow the Tribunal to ascertain his claims. There is also the claim that the Tribunal did not disclose to the applicant the nature of the evidence it relied on and thus denied him an opportunity to rebut the Tribunal’s available information.
In the light of Allsop J’s clear guidance, it is not for me to say that I regard the Tribunal’s assessment of the applicant as flawed or that even cumulatively the alleged inconsistencies might well not point another to a finding of lack of credibility. This Court did not attend the hearing and no transcript, nor recording, has been provided. This makes the applicant’s claim that the Tribunal was biased against him very difficult indeed to establish.
In his application to this Court, the applicant refers to apprehended bias but he should be aware that in WAKS v Minister for Immigration [2006] FCAFC 32 a Full Bench, Nicholson, Lander and Siopis JJ, said at [30]:
“There is a suggestion in one paragraph of the appellant’s written submissions that the RRT so conducted itself as to lead to the inference of an apprehension of bias: NADH of 2001 v Minister for Immigration [2004] 214 ALR 264 [115] per Allsop J. In that authority it is made clear that what is necessary is that it is shown that the conclusions of the RRT have been reached with a mind not open to persuasion or unwilling to evaluate all the material fairly. There is, however, nothing before us or in the decision of the RRT to attract the application of those criteria.”
And in SZHVL v Minister for Immigration [2008] FCA 356 McKerracher J said at [17]:
“It is clear that an allegation of bias must be distinctly made and proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J: It would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal: SCAA v Minister for Immigration [2002] FCA 668 at [38] per von Doussa J.”
As has been said, disagreement with, even violent disagreement with the views expressed by a Tribunal does not constitute jurisdictional error. In this particular case, the inconsistencies pointed out by the Tribunal existed. The Tribunal was charged with determining whether or not it should accept the explanations given by the applicant and determined not to. In those circumstances, its findings were based upon available evidence and do not reveal jurisdictional error.
The applicant expressed particular concern about the way in which the Tribunal dealt with the second of the two medical reports. It is correct to say that this report is concise. Whilst it refers to traumatic events, it does not say what they are. Insofar as it indicates the alternate use of the words “brother”, “friend” and “cousin” being likely related to linguistic patterns of the applicant’s culture, this appears to have been accepted by the Tribunal.
The Tribunal’s criticism of the report for not revealing the source of the applicant’s aetiology is to my mind valid and, whilst another Tribunal may have taken that report together with the explanations provided by the applicant for the inconsistency to come to the view that he, in fact, was telling the truth, this Tribunal did not and the Court is unable to interfere.
In his application, the applicant makes some criticism of the manner in which the Tribunal ran the hearing. Again, the Court does not have a copy of the transcript or the recording but, having read the Tribunal’s decision record with some care, it does seem that the applicant had every opportunity to explain his claims and that he was questioned by the Tribunal on matters over which it had concerns. This seems clear from the references in the decision record to the applicant being asked about particular things, eg, [81] [CB 204], [63] [CB 202], [65] [CB 202]. I am not satisfied that the applicant has made out a claim that the Tribunal did not give proper, genuine and realistic consideration to his claims, even to the limited extent to which that is an obligation: Minister for Immigration v SZJSS [2010] HCA 48.
The applicant, in his written application, also makes reference to breaches of s.424A. As will be clear from these reasons, I have not seen any matter upon which a true s.424A letter needed to be written. The fact is that a letter was written about the inconsistencies and it was responded to. This ground cannot succeed.
In all the circumstances I am unable to find any basis upon which the Tribunal made an error of law in the manner in which it reached its decision and the application must be dismissed. The applicant shall pay the first respondent’s costs which I assess in the sum of $4,000.00.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 1 March 2011
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