SZQZR v Minister for Immigration
[2012] FMCA 768
•6 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQZR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 768 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal. MIGRATION – Privacy of Tribunal hearing – whether Tribunal misconstrued s.429 of the Migration Act 1958. ADMINISTRATIVE LAW – Whether the Tribunal’s decision was affected by jurisdictional error by reason that it did not make inquiries, gave inappropriate weight to certain evidence, did not take some evidence into account and failed to give the applicant a real and meaningful invitation to its hearing. |
| Migration Act 1958, ss.425, 427, 429, 440, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 SZQXL v Minister for Immigration & Citizenship [2012] FMCA 361 SZAYW v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 230 CLR 486 |
| Applicant: | SZQZR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2991 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 28 August 2012 |
| Date of Last Submission: | 28 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 6 September 2012 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the First Respondent: | Mr P. Knowles |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2991 of 2011
| SZQZR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Colombia who arrived in Australia on 2 December 2008. On 23 November 2009 he lodged an application for a protection visa with the Department of Immigration and Citizenship, alleging that he feared persecution in Colombia because of his political opinion. On 2 February 2010 the applicant’s protection visa application was refused by a delegate of the first respondent (“Minister”) and the applicant was notified under cover of a letter dated 24 February 2010. The applicant then applied to the second respondent (“Tribunal”) for a review of that decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-24 of the Tribunal’s decision. Relevant factual allegations are summarised below.
Protection visa application
In his protection visa application the applicant claimed that he faced death threats from a paramilitary group, the Águilas Negras, and that the authorities in Colombia would not protect him because he was a member of the Partido Polo Democrático, a political party opposed to the government. The applicant attached to his application a threatening letter dated 20 January 2008 purportedly sent to him by the Águilas Negras and a statutory declaration dated 22 June 2008 in which he declared that his wife had disappeared.
The applicant additionally submitted a letter dated 23 December 2009 from a clinical psychologist at the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (“STARTTS”). The letter stated that the applicant had been assessed on 17 December 2009 and that he reported and displayed a range of symptoms associated with post-traumatic stress as well as physical health problems which made him unable to undertake paid employment.
Departmental interview
At a departmental interview on 21 January 2010 the applicant made the following claims:
a)the Águilas Negras viewed the party he belonged to, the Polo Democrático, as a party that rebelled against them and as a subversive group because it was opposed to the government’s policies;
b)he became involved with political parties in 2005 in order to get a good job and he became a member of the Partido Polo Democrático in 2006. He received some threats but had not taken them seriously until he was physically attacked;
c)in December 2007 he received two telephone calls from the Águilas Negras and a visit from one of its members and in January 2008 he received a threatening letter. He gave the letter to the Fiscalía (the Attorney General’s Office or Prosecutor General’s Office responsible for the investigation and prosecution of criminal offences in Colombia) because he wanted to obtain a protection order. Around Easter 2008 he was attacked and his hand was cut by people who he believed were members of the Águilas Negras. He also received threatening telephone calls in May and June 2008 and was told to leave the area or he would be killed;
d)he was singled out because he had been in the military from 1980 to 1984 and the Águilas Negras had asked him to be a member of their group. He had been in charge of security for a Partido Polo Democrático candidate in his home area in a campaign which ran from January to June 2008. The applicant then said the campaign was in 2007. The Águilas Negras had wanted information from him about the Partido Polo Democrático’s security;
e)the Águilas Negras were unable to harm him because he had travelled with a group of about twenty to twenty-five people campaigning and they had security;
f)his wife had belonged to the Unión Patriótica (“UP”) and had disappeared in 1992 or 1993 about eight to fifteen days after receiving death threats. He had been a supporter of the UP but not a member;
g)during the six months before he left Colombia, he lived in four different coastal cities and had no problems with the Águilas Negras because he had been moving around and they had not known his whereabouts. However, he knew that they would not allow him to live in peace so he left Colombia;
h)he had not applied for protection earlier because he had not known until August 2009 that he could, had had no money and had been suffering from depression; and
i)his family had known about his political problems and advised him not to return to Colombia. He wanted to return to Colombia but for the sake of the welfare of his family could not.
Tribunal
The applicant attended two hearings before the Tribunal. At the first hearing on 15 April 2010 the applicant produced, among other things, an unsigned certificate in Spanish on the letterhead of the Polo Democrático Alternativo issued on 15 August 2008 which stated that the applicant had taken part in their political movement since February 2002. The applicant stated that the certificate had been sent to him over the internet and that certificates in Colombia were issued without signatures.
At that hearing the applicant made the following claims:
a)the Águilas Negras was protected by the government;
b)his wife disappeared in 1996;
c)supporters of the Partido Polo Democrático were classified as guerrillas because they opposed the government;
d)he had been a sympathiser of the Partido Polo Democrático for twelve or fourteen years. The Partido Polo Democrático was officially created in 2002 but had existed prior to that as a continuation of the UP. He regarded himself as an activist of the Partido Polo Democrático and had called on his friends and acquaintances to support the group;
e)for a six month period beginning in November 2007 he had worked for a mayoral candidate in his home area, supporting his campaign, providing security and calling on followers. He could have obtained a letter confirming this but would have had to request it. He had been unable to contact the former candidate previously but had been recently given his contact details and could contact him;
f)the campaign ran from May or June 2007 until the middle of 2008. He could not remember when the mayoral elections were held but it was in the first half of the year. When the Tribunal put to the applicant that the mayoral elections in Colombia had been held in October 2007 he then said that the campaign had started in 2006;
g)he had been a leader in his community; and
h)he reported the letter he received from the Águilas Negras to the Fiscalía but they had been infiltrated by the paramilitary groups. He went to a bigger town to report this because he had lived in a very small town and the police would not have done anything. The Fiscalía gave him an appointment but he did not go back.
On 1 September 2010 the applicant appeared again before the Tribunal which, on that occasion, was differently constituted. He produced a copy of a letter (and a translation) signed by the former candidate. This letter purportedly certified that in 2006 and 2007 the applicant had worked as a security manager in a mayoral political campaign in which the letter’s author had stood as the Polo Democrático Alternativo party’s candidate. The author stated that the letter was issued at the applicant’s request on 25 October 2009. The applicant claimed that the letter was dated in 2009 because he had asked for it before he left Colombia. He said that he had been unable to collect it before he left the country.
The applicant also produced a translation of the certificate from the Polo Democrático Alternativo issued on 15 August 2008 which he had produced at the earlier Tribunal hearing. During the hearing the applicant produced a further copy of the certificate from the Polo Democrático Alternativo which purported to have been signed by Boris Montes De Oca Anaya although it was still dated 15 August 2008.
The applicant made the following additional claims:
a)he joined politics to get a job because at the time he had not had a fixed income and had financial difficulties;
b)he owned a coffee farm in his home area which was abandoned. The applicant then said that the farm was leased to try to improve it before he sold it;
c)he had been the head of security for the Polo Democrático in his province. During that time he worked two days a week and on weekends, transporting candidates and other people to meeting places and campaign events;
d)the mayoral elections were held on 31 October 2007. The interpreter at the earlier hearing had made a mistake about the dates. He had previously made mistakes with dates and had problems remembering details;
e)when he first started working on the campaign some people made verbal comments and told him that getting involved in politics could be dangerous. He first received threats in relation to his involvement in the political campaign in the middle of 2007. However, he had belonged to the opposition before the campaign and had always had problems with the reigning political class and the law. He became involved with the opposition because of his wife’s disappearance and the fact that no-one had done anything about it;
f)the Águilas Negras made threats against him because even though the Polo Democrático Alternativo candidate had lost the election he had gained enough votes to be on the council and they had been unhappy that the applicant had not given in to their demands that he participate in their plans to murder the candidate;
g)he was physically attacked during Easter in 2007, not 2008. He had reported the attack to the police but they had not done anything. About three months after the attack he saw one of his attackers with the police and displaying towards them a “very familiar attitude”;
h)when he received the threats from the Águilas Negras, he left his home area and went to Bogotá but had been unable to stay in his family home because he had been concerned about what might happen to his family. He had stayed with some friends and with his brother on the coast. While he was in hiding he went to Bogotá clandestinely to keep in contact with his children. He was careful because he knew that he was being followed;
i)he travelled to Australia because the threats he received were similar to those received by his wife before she disappeared;
j)he was told that the Águilas Negras had called his family in Colombia and said that they knew the date on which his visa expired and recommended that he stay in Australia if he wanted to live. When he left Colombia he had presented his passport to the authorities who looked at where he was going and the details on his passport. The authorities were the ones who could provide this information to the Águilas Negras; and
k)the inconsistencies in his evidence were caused by his memory and psychological problems.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)the Tribunal found that the psychologist’s report submitted by the applicant was prepared for the purpose of assessing his ability to engage in paid employment and his need for financial assistance and did not consider the applicant’s history. In those circumstances the Tribunal found that it did not have an obligation to consider the report for any reason other than in its role of assessing whether the applicant had the capacity to participate in its hearing. The Tribunal noted that although the applicant had referred to his psychological problems and difficulties in remembering dates, he also claimed to have an accurate recall of events and he understood the questions and the problems with his evidence put to him. Having taken into account the opinion of the psychologist, the Tribunal nevertheless considered that the applicant had been able to participate effectively in its hearing;
b)for the following reasons the Tribunal concluded that the applicant had not been involved in a political campaign in Colombia:
i)the Tribunal found that even taking into account the applicant’s psychological problems, he was not an impressive witness and contradicted himself on matters which were within his personal knowledge and did not depend on his memory. In particular, the Tribunal noted that the applicant had provided inconsistent evidence about whether and how his farm was then being used;
ii)the Tribunal found that the applicant was not a witness of truth and that he was prepared to say what he believed would help his case and make up new claims without regard to the truth. In this regard, the Tribunal noted that the applicant had raised new claims at its hearing, namely that the Águilas Negras had been unhappy with him because he had refused to participate in their plans to murder the Polo Democrático Alternativo candidate and that the paramilitaries had discovered when his visa was due to expire;
iii)the Tribunal noted the applicant’s evidence about when the mayoral elections took place and found that the applicant had not known that they had been held in October 2007 until it was put to him at the first Tribunal hearing. The Tribunal considered that if the applicant had been involved in the campaign he would have remembered when it had taken place;
iv)the Tribunal noted that the applicant produced to it a signed certificate in Spanish on the letterhead of the Polo Democrático Alternativo which he had initially produced unsigned. The Tribunal found that the fact that the later, signed copy of the letter was still dated 15 August 2008 suggested that it was a fabrication. The Tribunal considered that if the applicant had asked the party for a new letter it would have had a (new) date on which it was signed and would not have been a copy of the old letter with a signature on it;
v)the Tribunal found that the fact that the letter purportedly from the former candidate was dated 25 October 2009 contradicted the applicant’s evidence at the first Tribunal hearing that he had been unable to contact the former candidate and would need to do so in order to request such a letter; and
vi)the Tribunal gave greater weight to the problems in the applicant’s evidence than it did to the letters from the Polo Democrático Alternativo and the former candidate or to the document he submitted with his protection visa application which purported to be a threatening letter dated 20 January 2008 sent to him by the Águilas Negras. Given its findings on the credibility of the applicant, and the fact that the applicant had not known that the mayoral elections were held in October 2007 until he was told at the first Tribunal hearing, the Tribunal did not accept the applicant’s claims. Whilst accepting that the applicant’s wife had disappeared, in light of its view on the applicant’s credibility the Tribunal did not accept that she had disappeared because she belonged to the UP or that the applicant himself had supported the UP. The Tribunal also did not accept that the applicant was an activist or follower of the Polo Democrático Alternativo or that he was a leader in his community;
c)the Tribunal noted that the applicant had said at the second hearing that it could telephone the municipal personnel to confirm his involvement in the political campaign. However, the Tribunal did not consider this to be appropriate because the applicant claimed to fear persecution by the Colombian government. The Tribunal was not satisfied that if it were to take oral evidence by telephone from Colombia, it could ensure that the telephone calls would remain confidential as required by s.429 of the Act; and
d)having regard to the view it had formed of the applicant’s credibility, the Tribunal did not accept that he had ever had any significant involvement in politics in Colombia or that he had ever been threatened by paramilitaries for reasons of his real or imputed political opinion. The Tribunal did not accept that if the applicant returned to Colombia there was a real chance that he would be persecuted because of his real or imputed political opinion.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.The Tribunal did not afford me procedure fairness
Particulars
AThe Tribunal did not investigate and give reasonable wait [sic] to my claim of mental illness.
BThe Tribunal made negative findings on my credibility without reasonably considering my mental health.
At the hearing of the application the applicant also made submissions concerning the merits of his visa application.
The Minister also brought to the Court’s attention two further issues, namely:
a)whether the applicant’s mental condition had deprived him of an opportunity to participate in the hearing; and
b)whether the Tribunal’s decision not to take evidence from Colombia by telephone was affected by error.
Failure to investigate claim of mental illness
Although s.427 of the Act empowers the Tribunal to make enquiries, it has no general duty to exercise that power: Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at 603 [22] per French CJ and Kiefel J. Further, as was said in Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123:
The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. (reference omitted) (at 1129 [25: per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)
The applicant has not pointed to any obvious enquiry about a critical fact, the existence of which was easily ascertained, which the Tribunal might have conducted. Nor is any apparent. Consequently, the first issue raised by the applicant does not disclose error on the Tribunal’s part.
Failure to give reasonable weight to claim of mental illness
The weight which the Tribunal gives to any particular piece of evidence before it is a matter for it. For that reason, the allegation that the Tribunal should have accorded the applicant’s evidence of mental illness greater weight or found it more persuasive than it did does not provide a basis to conclude that the Tribunal erred.
An alternative construction of this particular of the allegation made is that the Tribunal failed to consider the applicant’s claim to have had a mental illness. If so, on the facts it is not made out. At para.114 of its decision record, the Tribunal recorded the applicant’s claim at the second Tribunal hearing that the inconsistencies in his application had been caused by psychological problems and by problems which he had had with his memory. Then, at paras.115-117, which are relevantly summarised above at [13(a)], the Tribunal considered the applicant’s mental condition but concluded, having taken into account both the STARTTS report and the applicant’s presentation at its hearing, that he had been able to participate effectively in that hearing.
For these reasons, this aspect of the applicant’s application is not made out.
Failure to consider applicant’s mental health when making credibility findings
For the reasons given above at [20], I have found that at paras.115-117 of its reasons the Tribunal turned its mind to the applicant’s claim to be suffering mental health problems, finding that he had been able to participate effectively in the Tribunal’s hearing. Later in its reasons, at para.121, the Tribunal said that, even taking into account the applicant’s psychological problems, he was not an impressive witness. It can be concluded from this statement that when reaching its findings on the applicant’s credibility, the Tribunal had weighed in the balance the mental health problems which he claimed to suffer.
For these reasons, the second particular of the allegation made in the application not made out.
Breach of s.425
The applicant adduced no evidence at the hearing of this application to suggest that he had, in fact, been unable adequately to present his case to the Tribunal because of any mental health condition which he may have been suffering at the time of the Tribunal hearing. Consequently, the only evidence touching this issue is what was before the Tribunal, as reproduced in the bundle of relevant documents which was exhibit A and the applicant’s affect at the hearing. As recorded above at [20] the Tribunal considered the question of the applicant’s mental health and concluded that he had been able to participate effectively in the hearing. As no evidence has been adduced to throw doubt on that conclusion, I find that no breach of the Tribunal’s obligation to provide a real and meaningful invitation to its hearing occurred in this case.
Misconstruction of s.429
Section 429 of the Act provides that Tribunal hearings “must be in private”. As recorded above at [13(c)] the Tribunal declined the applicant’s invitation to take evidence by telephone from persons in Colombia on the basis that, as he claimed to fear persecution by the government of Colombia, it could not ensure “that the telephone call would remain confidential as required by section 429 of the Act”.
In discharge of his model litigant obligations, the Minister submitted that this reasoning raised the question whether the Tribunal misconstrued s.429 of the Act in the manner identified by Emmett FM in SZQXL v Minister for Immigration & Citizenship [2012] FMCA 361.
In SZQXL the Tribunal had declined to take evidence by telephone from Sri Lanka, stating that it did not consider that it could be assured “that a telephone call between the Tribunal and a country like Sri Lanka would remain confidential”. In this regard, Emmett FM stated:
A fair reading of the Tribunal’s decision record makes clear that the Tribunal was of the misunderstanding that s.429 of the Act required it to ensure that any evidence it obtained from any witness in Sri Lanka must remain confidential. For the reasons below, that is not a proper construction of s.429 of the Act. (at [44])
Her Honour appears to have accepted the submission of the applicant in that case that the Tribunal meant by its words “remain confidential” that the witness to whom the Tribunal might have spoken was required to maintain the content of the conversation confidential into the future, although no such obligation existed.
In the present proceedings, the Minister submitted that her Honour’s decision in SZQXL was plainly wrong and should not be followed. Notwithstanding the manner in which it was advanced, the substance of the Minister’s disagreement with Emmett FM’s judgment was that her Honour should not have understood the Tribunal on that occasion to have been concerned that remote witnesses would not keep the content of their conversations with the Tribunal confidential. However, it is not for me to reconsider her Honour’s factual findings.
On the assumption that Emmett FM was correct to find in SZQXL that the Tribunal in that case had been concerned about witnesses keeping their evidence confidential after appearing before it and that such conduct would undermine the privacy of the Tribunal’s hearing as required by s.429, with respect I agree with her Honour’s finding that the Tribunal was in error in understanding that s.429 was concerned with such matters.
However, in this case, I conclude that the Tribunal was not concerned with witnesses keeping their own evidence confidential but, rather, with the confidentiality of the electronic communication itself. Indeed, even if the Tribunal had wished to stop witnesses talking about their own evidence, the powers which s.440 of the Act gives it to restrict publication or disclosure of matters, even assuming that the Tribunal’s writ ran to Colombia, did not go so far: s.440(2)(b).
The applicant’s suggestion that government officials be contacted to give evidence by telephone raised, in the context of his claim to fear persecution by the government of Colombia, the possibility of interception or recording and reproduction of those electronic communications such that their content would become known to more than the remote witnesses and those at the Tribunal hearing. If that were to happen, that would compromise the privacy of the Tribunal hearing which s.429 required. For that reason, I conclude that when the Tribunal spoke of being concerned if it were to telephone a witness in Colombia “that the telephone call would [not] remain confidential as required by section 429 of the Act” (my emphasis) it was referring to the requirement of s.429 that the hearing be private, in the sense of being restricted to its proper participants: SZAYW v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 230 CLR 486.
The Shorter Oxford English Dictionary (6th ed.) relevantly defines “private” as:
3.Not open to the public; restricted or intended only for the use of a particular person or persons.
4.Kept or removed from public view or knowledge; not generally known; secret; confidential, not to be disclosed to others. Also, without the presence of another person or persons, alone.
and “confidential” as:
2.Indicating private intimacy; inclined to impart confidences; confiding.
3.Spoken or written in confidence; not intended for public knowledge.
The Macquarie Dictionary (5th ed.) relevantly defines private as:
3.confined to or intended only for the person or persons immediately concerned; confidential … 8. removed from or out of public view of knowledge; secret. 9. not open or accessible to people in general; … 10. without the presence of others; alone; secluded.
and “confidential” as:
2.betokening confidence or intimacy; imparting private matters.
In the circumstances, and also based on the fact that according to the Shorter Oxford English Dictionary and the Macquarie Dictionary the ordinary meanings of “private” and “confidential” overlap in a relevant respect, I conclude that the Tribunal used “confidential” as a synonym for “private” and in the relevant statement was not intending to refer to anything more than what s.429 required.
For these reasons, I find that in this case the Tribunal did not err in its application of s.429 of the Act.
Applicant’s submissions at hearing
As noted earlier in these reasons, the submissions which the applicant made at the hearing of this application were concerned with the merits of his visa application. However, the Court is not empowered to substitute its own view of that question for that of the Tribunal and thus those submissions provide no basis on which the Court could set the Tribunal’s decision aside.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 6 September 2012
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