SZRQP v Minister for Immigration
[2012] FMCA 896
•25 September 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRQP v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 896 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Indonesia as guarantor of a loan – applicant not believed – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 425 |
| Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 |
| Applicant: | SZRQP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1565 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 25 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2012 |
REPRESENTATION
| Solicitors for the Respondents: | Mr R O'Shannessy Minter Ellison |
INTERLOCUTORY ORDERS
The Court directs that the name of the applicant is not to appear on the transcript of proceedings.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1565 of 2012
| SZRQP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (the Tribunal). The decision was made on 29 June 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant is from Indonesia and had made claims based upon his obligations under a loan agreement. The applicant arrived in Australia on 26 December 2007. He applied to the Minister’s department for a protection visa on 9 March 2012. The delegate refused that application on 27 April 2012. The applicant sought review by the Tribunal. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to attend the hearing. At that hearing, the applicant’s claims for protection were discussed with him. Those claims are summarised as follows[1]:
[1] Court Book (CB) 209-210
·The applicant’s mother has a heart problem. His brother is intellectually disabled. He has brain damage from an accident when he was hit by a car. Sometimes he becomes aggressive. The applicant’s mother looks after him. He is unable to study or work and he stays at home with their mother.
·The applicant’s mother is a single parent. His parents separated when the applicant was 8 or 9 years of age. His father does not contact or see the family. He also does not help the applicant’s mother financially or with the care of his brother.
·As a result of all these problems, the applicant’s mother’s health had deteriorated. She is very sick and has heart problems.
·The applicant came to Australia to study in December 2007. He had a student visa and he was enrolled in a “package” of courses, which included 12 weeks English at Strathfield College of English and then a Diploma of Management at APC College.
·The applicant paid the fees for the English course and for one semester of the Diploma course and he planned to study and work to support himself and to send money to his mother.
·The applicant completed the English course and tried to enrol in APC College to study a Diploma of Management. However, APC did not accept him into the course as he was told that his English results were not good enough.
·The applicant spoke to the Education Agent and told him that he did not want to pay for another English course and that he did not have money. The agent told him that he would speak with APC College and was told that they would not allow him to enrol in the Diploma course as he had to complete an English course with them. The agent did not assist the applicant to obtain a refund of the fees that he had paid to APC College.
·The applicant decided to stay in Australia to work to save money to enrol in another course. He also had to work to send money to his mother. The money that the applicant earned was very little and not sufficient to cover his living expenses in Sydney.
·In 2009, the applicant’s mother needed money to buy medicine and started to borrow money in Indonesia. She borrowed money from a money lender in Jakarta. The applicant is the person who has given the guarantee to pay the loan. There is a document written by the Notary and signed between the applicant’s mother and the money lender. It states that the applicant is the guarantor for the loan.
·The applicant has not been able to pay the loan. He has made some payments and was late in making other payments, because the money he earned in Australia was not enough to re-pay the loan.
·The applicant cannot return to Indonesia because he has not paid the loan and if he returns he will not be able to repay the loan because it is a large amount of money.
·The money lender has contacted the applicant’s mother on a number of occasions demanding payment of the loan. His mother has told the money lender that he is in Australia working to pay the loan.
·The applicant is afraid for his safety. He is afraid that the money lender will not take him to court. It is easier for a money lender to threaten, intimidate and harm a person who owes money to avoid the delay and expense of going to court.
·The applicant believes that the Indonesian authorities will not offer him protection. There is a lot of corruption in Indonesia and many people who suffer harm are not protected by the authorities.
·The applicant has no family or friends outside of Jakarta. It is very difficult for the applicant to get employment and to earn enough money to repay the loan in Indonesia. He cannot live by hiding in Indonesia for the rest of his life.
At the hearing, the Tribunal expressed difficulties with elements of detail about the applicant’s claims. The Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (the Migration Act), by letter dated 19 June 2012[2]:
… The Tribunal invited the applicant to comment on inconsistencies in relation to his employment in Indonesia and advised the applicant that it may find that he has attempted to misrepresent his circumstances in Indonesia. The Tribunal also invited the applicant to comment on inconsistencies in relation to his family members in Indonesia and advised him that it either indicates that he provided untruthful evidence in his student visa application or has provided untruthful evidence in his protection visa, and that this is indicative of his willingness to provide untruthful evidence to secure a visa. The Tribunal also invited the applicant to comment on information that he gave to the Department during his Compliance Client interview where he said he was not intending to apply for a visa in Australia and that there were no reasons why he could not return to Indonesia, had [no] debt in Indonesia and that his reasons for wishing to remain in Australia were to save money for his mother and brother. The Tribunal advised the applicant that it may find that his claims to the Department at that time were truthful and that when he was interviewed during his initial detention at Villawood Immigration Detention Centre and that he subsequently manufactured his claims to fear harm in Indonesia. The Tribunal also invited the applicant to comment on the inconsistencies in relation to the debt and advised the applicant that his evidence was confused, vague and inconsistent and it may find that he does not have a debt in Indonesia and that his claim was manufactured after he was detained in Villawood Immigration Detention Centre in an attempt to provide a basis for protection in Australia. The Tribunal also invited the applicant to comment on the medical certificates provided to the Tribunal purporting to be for his mother and brother and stated that they are in exactly the same format, but from different doctors and it may find that they are false and provided in an attempt to provide a basis for protection in Australia.
[2] CB 218 [58]
At [59] of its reasons[3], the Tribunal notes that the applicant was put on notice, that, on the totality of the information before it, the Tribunal might find that he has manufactured all of his claims to fear harm in Indonesia, and that he was not a truthful witness.
[3] CB 219
The applicant responded to the Tribunal’s request for comment by letter dated 26 June 2012. It is apparent from the Tribunal’s findings and reasons that the Tribunal ultimately adopted a position somewhat more generous to the applicant than that foreshadowed in the s.424A letter. At [68] of its reasons[4], the Tribunal records that it does accept that the applicant is a truthful witness. I proceed on the basis that that is an accurate statement of what the Tribunal intended to say.
[4] CB 220
The Tribunal records that it accepted a number of elements of the applicant’s story. However, critically, the Tribunal did not accept the applicant’s claims in relation to a significant loan from a money lender in Indonesia, and considers that the applicant’s evidence about that was not credible and was confused and inconsistent. The Tribunal goes on to explain its reasons for rejecting the applicant’s claims concerning the loan from [69]-[78] of its reasons[5].
[5] CB 220-223
Because the Tribunal did not accept the applicant’s claims concerning the loan, the Tribunal concluded that there was no basis upon which it could be satisfied that the applicant qualified for a protection visa.
These proceedings began with a show cause application filed on 19 July 2012. There is one ground in the application which states:
I am seeking the protection from Australia country that, by going back to my country my life in danger.
I received as evidence the court book filed on 31 August 2012.
In oral submissions, the applicant stated that he did not understand the Tribunal’s decision. I attempted to explain the Tribunal’s reasoning to him. The applicant also stated that he did not understand the legal technicalities inherent in a decision to accept or reject a claim for protection under the Refugees Convention. I also attempted to explain the legal regime for protection to him.
The applicant is clearly concerned that his claims about the loan were not accepted. He considers that his claims, if not acceptable on their face, should have been further investigated by the Tribunal. However, it is well established that the Tribunal is under no general duty to inquire[6]. The applicant also expressed concern that documents he submitted in support of his claims were not accepted as genuine. The applicant provided a number of documents to the Tribunal. The Tribunal accepted as genuine documents evidencing the health of his mother and brother.
[6] Minister for Immigration v SZIAI (2009) 259 ALR 429 at [25]
The Tribunal did not accept as genuine documents evidencing the loan and the applicant’s liability under it. Those documents appear in their original untranslated form on pages 181 and 182 of the court book. Translations were later provided to the Tribunal and those translations appear at pages 200 and 201 of the Court book. This was not a case in which the Tribunal made comprehensive findings of dishonesty against the applicant. Accordingly, the Tribunal needed to consider the documents in assessing the credibility of the applicant’s claims. The Tribunal gave the documents no weight. The Tribunal gave its reasons for doing so at [74][7]:
The Tribunal has accepted that the applicant has a mother and a brother who have medical conditions. The Tribunal is prepared to accept that the medical documentation provided by the applicant are genuine, despite some concerns as to the format and content of those documents. However, the Tribunal does not accept the documents purporting to be the loan agreement or from the village head allegedly testifying to the existence of the loan contain truthful evidence. The Tribunal is not satisfied that they overcome the problematic nature of the applicant’s own evidence and the Tribunal’s findings as set out above that he has fabricated his claims regarding the loan. Accordingly, the Tribunal gives them no weight.
[7] CB 222
It is tolerably clear, in my view, that the Tribunal gave no weight to the documents because it did not accept them as providing a truthful account of the facts. The Tribunal complied with its obligations to invite the applicant to a hearing, pursuant to s.425 of the Migration Act. That hearing opportunity appears to have been a fair one. In addition, the Tribunal met its obligation of disclosure pursuant to s.424A of the Migration Act.
The applicant was put on notice of the Tribunal’s concerns about his claims and had a fair opportunity to address those concerns. While the applicant is clearly dissatisfied with the outcome of the review and the Tribunal’s reasons, he has not advanced an arguable case of jurisdictional error by the Tribunal.
Accordingly, I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (the Federal Magistrates Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs, fixed in the sum of $4,500. Scale costs, in this instance, would be $3,239. The applicant did not wish to be heard on costs. The Minister was not required to produce written submissions or engage counsel for this interlocutory hearing. I see no reason to depart from the Court scale. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 26 September 2012
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