SZRSU v Minister for Immigration - [2013] FMCA 202

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRSU v MINISTER FOR IMMIGRATION & ANOR

[2013] FMCA 202

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (class XA) visa – no reviewable error – application dismissed.

Migration Act 1958 (Cth), ss. 424A, 474

Minister for Immigration and Citizenship v SZIAI and Anor (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

Applicant:

SZRSU

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2453 of 2011

Judgment of:

Lloyd-Jones FM

Hearing date:

15 February 2013

Date of Last Submission:

15 February 2013

Delivered at:

Sydney

Delivered on:

3 April 2013

REPRESENTATION

The Applicant:

The Applicant appeared in person

Solicitors for the First Respondent:

Ms R. Jones of Australian Government Solicitor

The Second Respondent:

The Second Respondent filed a submitting notice of appearance

ORDERS

The application filed on 23 August 2012 be dismissed.
The applicant pay the first respondent’s costs of, and incidental to, this application.

The Applicant in these proceedings is not to be identified pursuant to s. 91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZRSU.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2453 of 2011

SZRSU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

In accordance with the Court Orders made on 2 October 2012, the solicitors for the first respondent, the Minister for Immigration & Citizenship, were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”). On the date of the hearing, the Court Book was marked Exhibit “A” and is the only evidence before the Court.
At the First Court Date directions hearing, the applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material on or before 30 November 2012. The applicant elected not to file an amended application. The applicant was also required to file and serve a short written outline of submissions and a list of authorities 14 days before the hearing. Written submissions were filed by the applicant on 7 February 2013, eight days before the date of the final hearing. No objection was raised by the first respondent to the filing of those submissions.
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), affirming the decision of a delegate of the first respondent, the Minister for Immigration & Citizenship (the “Minister”) to refuse the Applicant a Protection (Class XA) visa. It is the decision of Tribunal member A. Mullin dated 31 July 2012, RRT Case Number 1110035 that is the decision subject to review in this Court.

Background

In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book (“CB”), each item contains a Court Book reference for that material.
The applicant is a citizen of Sri Lanka who arrived in Australia on 21 May 2011 (CB 11). He applied, with the assistance of a lawyer from Legal Aid NSW, for a Protection (Class XA) visa on 22 June 2011 (CB 1 – 137). By letter dated 26 July 2011, a delegate of the Minister invited the applicant to an interview to discuss his Protection visa application on 22 August 2011 (CB 140 – 142). The applicant submitted a number of documents in support of his claim (CB 143 – 164). By letter dated 14 September 2011, a delegate of the Minister wrote to the applicant informing him that his application for a Protection visa had been refused (CB 165 – 181).
The applicant sought review of the delegate’s decision of 14 September 2011 in the Tribunal on 23 September 2011 (CB 182 – 185). This application was not completed with the assistance of Legal Aid NSW, rather, by the applicant himself. The Tribunal acknowledged receipt of the application for review and invited the applicant to attend a hearing on 17 February 2012 (CB 186 – 193). On 16 February 2012 Sentil Solicitor & Barrister wrote to the Tribunal advising that he had been appointed as the applicant’s representative for the hearing, as well as providing a number of documents in support of the applicant’s claim (CB 194 – 199). The applicant then provided a further document in support of his claim at the hearing (CB 205 – 206).
On 1 March 2012, the applicant’s representative at the time submitted more documents to the Tribunal (CB 209 – 239). The Tribunal invited the application to a further hearing on 27 April 2012 (CB 240 – 241) which he attended with his representative (CB 242 – 246). On 27 June 2012, the Tribunal wrote to the applicant requesting comments or responses to certain information the Tribunal considered might, subject to the applicant’s comments or responses, form the, or part of the, basis for affirming the decision of the delegate (CB 247 – 248). The applicant responded by letter, attaching documents, dated 19 July 2012 (CB 249 – 252).
The Tribunal wrote to the applicant on 1 August 2012 notifying him of its decision to affirm the decision of the delegate of the Minister to refuse to grant him a Protection (Class XA) visa (CB 253) and attached a copy of its Decision Record in RRT Case No. 1110035 dated 31 July 2012 (CB 255 – 289).
In affirming the delegate’s decision, the Tribunal found that:
a)The applicant had been untruthful about his past travels and found that this cast doubts over his claims (CB 281 at [88]);
b)The passport the applicant had used was also used to apply for a visa to the United Kingdom in 2011, which contained his photo, stated his name and stated that the applicant was born in Kandy and not in Chevakachcheri as he had claimed (CB 281 – 282 at [89]). This cast doubts over the applicant’s claim that he had grown up in Chevakachcheri and had suffered harm from the Liberation Tigers of Tamil Eelam (“LTTE”), Eelam People’s Democratic Party (“EPDP”) and the Sri Lankan Military, eventually forcing him to relocate to Colombo. The Tribunal weighed this evidence against the documentary evidence provided by the applicant, but was satisfied the applicant was born in Kandy (CB 283 at [95]);
c)The birth certificate had been altered in a different coloured ink and, despite the alteration being initialled, independent country information indicated that falsified documents are easily obtainable in Sri Lanka (CB 283 at [94];
d)The applicant was not of “Jaffna Tamil” ethnicity and he would not have suffered harm on that basis. The Tribunal also concluded that the applicant was not a member of a particular group of “Jaffna Tamil businessmen”, even if such a group existed (CB 287 at [114]);
e)The applicant’s claim that he had been abducted in Colombo on 4 January 2011 and held for ten days was an invention designed to strengthen the applicant’s claims. It noted the applicant had changed the date he claimed the kidnapping occurred from 14 January 2011 when confronted with the information he had applied for a United Kingdom visa on 18 January 2011. The Tribunal rejected the applicant’s explanation for the inconsistencies in his evidence and concluded that the applicant had concocted the claim (CB 284 at [104]);
f)The credibility of the applicant’s claims led to it being unable to be satisfied that the applicant had been arrested and detained by police in June 2009 (CB 285 at [105]);
g)The applicant would not be exposed to serious harm in Sri Lanka as a failed asylum seeker on the basis of independent country information (CB 286 at [108]);
h)The applicant left Sri Lanka using a fraudulently altered passport. However, penalties for this conduct were seldom enforced and, to the extent that they could be, this would represent the enforcement of a law of general protection (CB 286 at [109]); and
i)The applicant did not meet the criteria for complimentary protection, after considering whether he may face harm for leaving Sri Lanka on a fraudulent passport. The Tribunal repeated its finding that penalties for this conduct are seldom enforced unless the person is regarged as having been an organiser of immigration fraud, has an outstanding arrest warrant or is on a “black list” held by the Sri Lankan authorities. The Tribunal was satisfied, based on its earlier findings, that the applicant did not fall within any of these categories (CB 287 – 288 at [116]).

Current Proceedings

The applicant applied for review of the Tribunal’s decision in this Court on 23 August 2012. The three stated grounds of the application are:
1. The RRT has committed jurisdictional error
2. The RRT has committed error of law
3. The RRT has provided natural justice as required by the procedural fairness under the Migration Act. The particulars of these grounds will be submitted after this court has given me a pro-bono lawyer.
At the First Court Date directions hearing on 2 October 2012 the applicant indicated that he sought to participate in the NSW RRT Legal Advice Scheme. A panel adviser provided the applicant with this advice on 25 October 2012.

Applicant’ Submissions

The applicant submits that the Tribunal failed to contact the Birth Registry in Sri Lanka in order to verify whether the applicant was born in Kandy of Chavakachcheri, despite the applicant providing them with authority to do so. The applicant also gave the Tribunal authority to contact his high school in Jaffna to verify that he had studied there, which the Tribunal failed to do. He contends that the Tribunal failed to carry out their duty and should have allowed him then to get a letter from the Registry of Birth in Sri Lanka. The applicant is trying to obtain a letter to the Court stating that the birth certificate submitted to the Department of Immigration & Citizenship had been officially altered by the Birth Registry.
The applicant contends that the Tribunal failed to consider the claims in his case as his friend was arrested and released from detention by an unknown armed group working with the Sri Lankan Government. The Tribunal failed to consider what might occur to the applicant because of his association with his friend.
It is submitted by the applicant that the Tribunal failed to consider the torture he faced at the hands of the Sri Lankan Security Forces and, even though the International Committee of the Red Cross (“ICRC”) gave evidence that the applicant has been in detention and the ICRC had visited him. The RRT made no attempts to contact the ICRC to verify this, and the applicant can provide originals of these documents to verify them. There was also country information available before the Tribunal that stated Tamils like the applicant had been in detention and had been tortured by the Sri Lankan Security Forces.
The applicant contends that if the Tribunal had checked with the Sri Lankan Birth Registry or if the Tribunal had asked the applicant to prove his birth certificate was officially altered by the Birth Registry he would not have been a victim of the proceedings before the Tribunal. He also submits that he gave independent country information about how badly failed asylum seekers are treated in Sri Lanka, which is a relevant consideration. The Tribunal also failed to consider that the applicant left Sri Lanka unlawfully. Accordingly, the Tribunal has committed jurisdictional error and the application should be remitted to the Tribunal to be reheard.

Minister’s Submissions

The Minister submits, in respect of the applicant’s submissions about his birth certificate, this presumes that there is an obligation on the Tribunal to make enquiries. In fact, there is no general duty to do so and the Minister refers the Court to the decision of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI and Anor (2009) 259 ALR 429 where their Honours stated at [25]:
…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. …
The Minister referred the Court to [94] (CB 282 – 283) of the Tribunal’s Decision Record where the Tribunal considered the applicant’s invitation to verify the genuineness of the applicant’s birth certificate and schooling record, but was not satisfied as to the utility of undertaking this task as the applicant had already supplied copies of these documents. The Tribunal also had regard to independent country information indicating that corruption in Sri Lanka was widespread and falsified documents are readily obtainable, leading to the conclusion by the Tribunal there would be no useful outcome in attempting to verify the applicant’s claims. The Minister submits that the Tribunal was entitled to do this, given the independent country information and in the face of the evidence being the applicant’s passport which contained the applicant’s name, photograph and date of birth, and stated the applicant was born in Kandy, not in Jaffna.
The Minister contends that the Tribunal considered at [92] of its Decision Record that there would be no reason for the applicant to obtain a fraudulent passport with only his place of birth altered, as this would not have achieved the desired effect of disguising the applicant’s true identity, when all other details on the applicant’s passport were correct. The Tribunal considered this and concluded that the applicant’s birthplace was, in fact, Kandy and not in Jaffna. The Minister submits that a similar approach was taken by the Tribunal in respect of the applicant’s claims about the high school at which he studied.
The Minister submits, in respect of the applicant’s contention that he should have been given the opportunity to obtain proof of the authenticity of the birth certificate in the event that the Tribunal did not perform those enquiries itself, that the Tribunal sent a s. 424A letter to the applicant (CB 247 – 248) which alerted the applicant to the fact that the Tribunal had concerns about the authenticity and/or veracity of the information in the applicant’s birth certificate. The Tribunal put the applicant on notice about these concerns and the possible adverse conclusion it may reach about the applicant’s claims, and gave the applicant an opportunity to obtain further evidence over a period of about three weeks with the possibility of an extension being granted if requested. The Minister indicates that there is no evidence that the Tribunal ever indicated to the applicant that it would be making any enquiries about his birth place or school attendance.
The Minister argues, in respect of the applicant’s claim that the Tribunal failed to take into account the statutory declaration by his brother (CB 251), that the Tribunal refers to this statutory declaration at [63] (CB 272) of its Decision Record and again at [95] (CB 283). At [95] the Tribunal is satisfied that the applicant is who he is claiming to be, but is not satisfied that he was born in Chavakachcheri and finds that he was born in Kandy, having regard to the evidence before it, including the statutory declaration of the applicant’s brother.
In respect of the applicant’s claim that the Tribunal failed to consider the applicant’s claim in respect of his friend, a Mr Prabhakaran, the Minister submits that the Tribunal has considered these claims at [106] (CB 285) of its Decision Record and was not satisfied that the applicant had not simply used this well-reported incident to support his claim or as to the truth of the applicant’s claims to have been arrested because of any connection with Mr Prabhakaran.
The Minister next addresses the applicant’s claim that the Tribunal failed to seek verification of his detention from the International Red Cross who had provided a document, known as a “Detention Attestation” (CB 39), included in the applicant’s original application for a Protection visa. In respect of this document, the Minister submits that, for reasons similar to those noted in the paragraphs immediately preceding this, the Tribunal was not obliged to make inquiries with the Red Cross about the veracity of this document. It is clear from the Tribunal’s decision the inconsistencies in the applicant’s evidence about when he was purported to be in detention, in combination with the revelation he had applied for a visa to the United Kingdom at the same time he had been in detention, outweighed the utility of any evidence that could have been given by the Red Cross.
The next ground of the applicant’s submissions that the Minister addresses is the claim that there was country information before the Tribunal that Tamils, like the applicant, were in detention or tortured by Sri Lankan security forces. The Minister submits that this claim appears to dispute the weight given to country information that had been provided by the applicant. This was purely a matter for the Tribunal and it made findings in respect of independent country information at [108] (CB 286) of the Decision Record, which it was entitled to do.
The final claim advanced in the applicant’s submissions is that he would suffer serious harm if returned to Sri Lanka as he had left illegally. The Minister submits that the Tribunal clearly considered this claim against the Refugees Convention criteria as well as the complimentary protection criteria at [109] (CB 286) and [116] (CB 287 – 288). The Tribunal found that there was no basis upon which this claim could be advanced.
The Minister submits that the three grounds advanced in the applicant’s application do not identify any jurisdictional error, nor is there any jurisdictional error apparent in the Tribunal’s reasons. The application was never amended and, accordingly, it should be dismissed with costs.

Consideration

At the First Court Date directions hearing the applicant indicated that he wished to participate in the NSW RRT Legal Advice Scheme, and he subsequently attended a conference with the panel adviser allocated to him and received written advice. However, he did not elect to file an amended application and proceeded with the three basic unparticularised grounds set out in his original application filed in these proceedings (noted at [10] above). I am satisfied that the written submissions prepared by Ms Jones appearing for the Minister accurately and adequately address those three grounds and do not require any further comment or elaboration.
At the hearing the applicant was invited to make any further oral submissions in support of those contained in his written submissions previously filed. In response, the interpreter responded that the applicant indicated he had provided everything that he wished to say in writing and had nothing more to add. Ms Jones indicated that as the applicant’s submissions were filed late and after the date of the preparation of the Minister’s written submissions the applicant had made several new claims in his submissions, to which she wished to respond.

The first point is that the Tribunal failed to verify the authenticity of the applicant’s birth certificate. I accept Ms Jones’ submission that there is no general duty on the Tribunal to make such enquiries, although it has been recognised in Minister for Immigration v SZIAI (supra) at [25] that there will occasionally be limited circumstances where a duty to inquire may arise. This will involve an obvious inquiry about a critical fact, the existence of which is easily ascertained. However, the proposed inquiry into the authenticity of the birth certificate does not fall within this category.
Ms Jones referred the Court to the Tribunal’s Findings and Reasons at [94] (CB 283) where it states:
I have considered the suggestion but I am not satisfied as to the utility of attempting to make these enquiries.
I agree with Ms Jones that the Tribunal was entitled to do this in circumstances where country information indicated that fraudulent documents were very easily obtainable in Sri Lanka, and also in the face of the evidence, in the form of the applicant’s passport, which had the applicant’s name, photograph, date of birth, and stated that the applicant was born in Kandy, not in Jaffna. At [92] (CB 282) the Tribunal considered that there would be no reason for the applicant to obtain a fraudulent passport with only his place of birth altered and considered that this was evidence that his actual place of birth was, in fact, Kandy and this undermined his claim that he feared persecution based on his Jaffna Tamil ethnicity.
I am satisfied that a similar approach can be taken to the applicant’s claim that the Tribunal should have made similar enquiries to the high school where the applicant claimed he attended in Jaffna.
The next claim by the applicant is that he should have been given the opportunity to obtain proof of the authenticity of the birth certificate, in the event that the Tribunal would not make those inquiries itself. In the s. 424A letter sent by the Tribunal to the applicant (CB 274) the applicant is alerted to the fact that the Tribunal had concerns about the authenticity or the veracity of the information in the birth certificate. I accept the submission that the Tribunal put the applicant on notice about the adverse conclusion that was being drawn and allowed the applicant the opportunity to obtain further evidence if he so chose. The s. 424A letter allowed the applicant a period of approximately three weeks to respond and also anticipated the possibility the applicant might request an extension of time. There is no evidence that the Tribunal ever indicated to the applicant that it would be making those enquiries about either his school attendance or his place of birth as it was written on his birth certificate.
The applicant claimed that the Tribunal failed to take into account the statutory declaration by his brother who is resident in Australia (CB 251). The statutory declaration attests to the fact that the applicant was born in Chavakachcheri, in the north of Sri Lanka. The Tribunal refers to this evidence in its decision at [63] (CB 272) and its Findings and Reasons at [95] (CB 283). The Tribunal finding was that the applicant’s place of birth was not in Chavakachcheri, but in fact Kandy. The Tribunal states that in making that finding it has taken into account various documents submitted by the applicant on his identity and place of birth, including the statements by the brother living in Australia.
The applicant also claims that the Tribunal failed to consider the central claim regarding his friend R. Prabhakaran. In the Findings and Reasons at [106] (CB 285) the Tribunal sets out the applicant’s evidence in relation to his friendship and how this connection led to his own detention. The Tribunal’s finding was that it was not satisfied he did, in fact, have any connection with Mr Prabhakaran.
The applicant claims that the Tribunal failed to seek verification from the International Red Cross that he had been detained. The Red Cross provided a Detention Attestation (CB 39) which attests to the fact that officials from the Red Cross had visited the applicant while he was in detention. A copy of that document was attached to the applicant’s original application for a Protection visa. The Tribunal was not required to make inquiries into the Red Cross about the veracity of that document on the same basis expressed above in relation to the applicant’s birth certificate and high school. The Tribunal expressed its concerns about the inconsistencies in the applicant’s evidence about when he was in detention and the revelation that the applicant had applied for a visa to the United Kingdom at about the same time that he claimed he had been in detention. That particular inconsistency outweighed the utility of any evidence the Red Cross might have given.
The applicant claimed that there was country information before the Tribunal about Tamils like him in detention being tortured by Sri Lankan security forces. Although not clearly articulated, this appears to be a dispute as to the weight given to the country information provided by the applicant. This matter is considered in the Tribunal’s Findings and Reasons at [108] (CB 286) where it states:
…I note that the independent country information available to the Tribunal contains reports indicating that returned asylum seekers are usually detained for some hours while their identity is checked. They may be questioned about this period. Other reports suggest that either this period may be extended for far longer or that the returnees may be subjected to various forms of abuse. Having considered the conflicting information reflected in these reports I prefer the evidence of the recent experience of failed asylum seekers returning to Sri Lanka over largely undersubstantiated assertions that they suffer serious harm…
The Tribunal was of the view that the lesser, and not greater, weight should be given to the material tendered by the applicant and his adviser. The according of such weight was a matter for the Tribunal: Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303 per North and Lander JJ, particularly at [20], [23] – [26] and [28].
Finally, the applicant submitted that the Tribunal failed to consider his claim that he would suffer either serious harm or significant harm because he had left Sri Lanka illegally. The Tribunal considered this claim, both against the Convention criteria and the complementary protection criteria at [109] (CB 286) and [116] (CB 287).
Prior to the hearing of this matter I reviewed the contents on the Court Book and, particularly, the Decision Record, being the totality of the evidence before the Court. A substantial part of that review was influenced by the applicant being self-represented, appearing with the assistance of an interpreter and relying on a very simple, unparticularised pleading that claimed error by the decision maker without any reference to what that error may be or how it was expressed in the decision record. In the Findings and Reasons the Tribunal has indicated why various claims and arguments ventilated by the applicant were not accepted. The Tribunal clearly states that the significant finding related to the general credit of the applicant’s claims. Of particular significance are the findings at [102] in respect of implausibility of aspects of the applicant’s claim. In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; per McHugh J, his Honour stated at [67]:
… A finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness no detailed reasons need to be given as to why that particular witness is not believed. The Tribunal must give the reasons for its decision, not a subset of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for disbelief is apparent in this case from the use of the word “implausible”.
In the Findings and Reasons at [101] the Tribunal discusses the mistake in the first statutory declaration as to the date of the applicant’s alleged abduction. The applicant indicates that he knew there was an error and provided the following explanation:
… The error had been caused when his friends translated his original Tamil language statement into English. He had discovered the mistake after lodging the protection visa application but the friends told him not to worry about it and he did not mention it to his solicitor. At the Departmental interview he had not wished to ‘confuse’ the situation by correcting the date, although he knew it was incorrect.
[102] Having considered his explanation I find it so implausible that I do not accept it. I note that the first Statutory Declaration is a typed document of five and a half pages which is expressed in English of a high standard and gives every impression of having been prepared by a profession translator. I note also that it bears the name that the person, described as an on-call interpreter, who certifies that she has ‘faithfully interpreted this Statutory Declaration from the English language into the Tamil language.’ …
Finally, I find it implausible that the Applicant would not have corrected this obvious error about an incident which, if true, would have been dramatic, memorable and obviously important for his claims, either before the Departmental interview or when he was asking about it during the interview. I have concluded that this explanation has been developed by him with the benefit of hindsight to account for this major discrepancy in his claims.
On a fair reading of the Tribunal’s decision as a whole, I am satisfied that no jurisdictional error is apparent and the application should be dismissed with costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Date: 3 April 2013