SZTIM v Minister for Immigration

[2015] FCCA 666

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTIM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 666

Catchwords:
MIGRATION – Refugee Review Tribunal – protection (Class XA) visa – no jurisdictional error – application dismissed.

Legislation:  

Migration Act 1958, s.476

Minister For Immigration And Citizenship v Li [2013] HCA 18

Applicant: SZTIM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2356 of 2013

Judgment of: Judge Street

Hearing date: 17 March 2015

Date of Last Submission: 17 March 2015

Delivered at: Sydney

Delivered on: 17 March 2015

REPRESENTATION

Solicitors for the Applicant: Mr A. Silva
Silva Solicitors

Counsel for the Respondents: Mr T. Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2356 of 2013

SZTIM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of which the applicant seeks a Constitutional writ in respect of the Tribunal’s decision on 6 September 2013 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The grounds of the amended application are as follows:

   (1) The Tribunal made jurisdictional error by (a) basing credibility finding on an irrelevant matter (b) denying procedural fairness

   Particulars

   In [11] at page 4 of her decision the Tribunal made a big issue of the applicant’s cousin’s protection visa application.  The Tribunal even went to the extent of asking about the basis of her cousin’s application. It had nothing to do with the applicant’s credibility. The applicant and her cousin applied separately and it was improper for the Tribunal to pressure the applicant to talk about her cousin’s application. The applicant was also denied procedural fairness. 

   (2) In relation to the applicant’s work with the Fiji Police Force The Tribunal made jurisdictional matter by not taking a relevant matter into consideration in determining whether the applicant has a profile anti-government profile. [sic]

   Particulars

   (a) The Tribunal failed to take into consideration the type of harm the applicant was subject to during interrogation at the QEB (Army Barrack) in May 2010. See [12] of her statutory declaration.

   (b) The Tribunal also failed to consider the treatment by the police when she went to complain after assault by the women at the Albert Park. See [13] of her statutory declaration.

   (c) The nature of the assault suffered at Albert Park. See [13] of her statutory declaration.

   (3) The Tribunal made jurisdictional error in not taking relevant matter into consideration in making a finding as to whether the applicant was terminated for political reasons.

   Particulars

   (a) The threat issued to the applicant just three days until she was removed from the position. See [12] of her statutory declaration.

   One day [SL] & [SG] met me on my way to work and they told me that a traitor like you would learn you lesson soon. Three days after that in February 2011 I became a victim and found myself removed.

   (4) In relation to the applicant’s work in community consultation the Tribunal made jurisdictional matter by not taking a relevant matter into consideration in determining whether the applicant has a profile anti-government profile.

   Particulars

   The Tribunal failed to take into consideration her advancement of human rights issues, in sense that the settlers have a human right in requiring a particular level of service that others are getting. She was implying that they are being denied human rights at that time.

   (5) The Tribunal made jurisdictional error in failing to take her prior profile when considering the conflict she had with Mr [D] to assess whether she had a anti-government profile.

   Particulars

   Although the Tribunal professed to considering the situation overall it di not consider the applicant’s prior profile in assessing whether she was taken to the camp on 2 February 2012.  [sic]

3. The circumstances of the criticism advanced by the applicant in respect of ground 1 was to attack the reasoning of the Tribunal in para.11:

   11. While the applicant told the Tribunal early in the hearing that she: most recently came to Australia alone and with no other family member or relative; lives at a specified address in Townsville with her Australian cousin [RV], his wife and children and that no other relative or person has ever lived with her at that address; works on Palm Island; does not personally know anyone else who has applied for a Protection visa in Australia. However, as put to her under-section 424AA, all of the above claimed circumstances are inconsistent with other information before the Tribunal. Specifically, as put to the applicant, documentation provided in respect of her most recent Australian Tourist visa application together with Department movement records and Tribunal records indicate 'that: she applied for that visa with her cousin X (whose name and passport details ·are specified in that documentation); they travelled to Australia on the same flight, ·entered Australia on the same date and time; and they currently reside at the same address in Townsville. In response the applicant offered that she did not mention this earlier as her cousin has applied separately for a Protection visa and she didn't think she needed to mention that cousin. However; as put to the applicant, this does not overcome the Tribunal's concerns that she appears to have not been forthcoming or truthful in answering the Tribunal's questions regarding aspects of her claimed circumstances, which in tum raises concerns about the truthfulness of other aspects of her evidence. When the applicant ultimately changed her evidence and told the Tribunal that she did travel to Australia with X, did live with X in Townsville and added that they also work together on Palm Island, the Tribunal asked, in the context of the time they appear to have spent together, she has any understanding of why X fears returning to Fiji. Her response impressed the Tribunal as evasive, comprising: long pauses; she· has not read her cousin's application or claims; and she does not know any-detail about why X is seeking Australia’s protection. The Tribunal considers the above to raise significant concerns regarding the applicant's credibility as a Applicant, and considers it to demonstrate a willingness on her part to give incomplete, evasive, misleading and/or false responses to clear and direct questions put to her by the Tribunal.

4. In substance, the applicant sought to disconnect para.11 as a whole and try and read it in a way in which it was addressing the credibility of the applicant by reference to solely the issue of the credibility concerns of the Tribunal expressed in relation to the applicant’s answers to questions concerning her knowledge of her cousin’s application for a protection visa.

5. Mr Silva, quite properly, conceded at the commencement of the hearing that his client had told the Tribunal five lies.  Those five lies were identified in the transcript as follows:

   TRIBUNAL:  When you came to Australia, did you come alone?  Witness:  Yes,

   TRIBUNAL:  Did you come with any other family member or relative? 

   WITNESS:  No, member, no.

6. Those answers were a lie by the applicant and a lie that related to coming to Australia with her cousin.  Why the applicant would lie in relation to coming to Australia with her cousin was a matter in which it was perfectly proper and appropriate for the Tribunal to be entitled to explore, which it did.

7. The second lie the applicant told is at the bottom of the page:

   TRIBUNAL: Who else lives at 34 [P] Street?

   WITNESS:  Two other family members, member.

   TRIBUNAL: Extended family member?  Who are they?  Are they Australian citizens?

   WITNESS: Yes.  Yes, member.

8. The third lie, on page 10, relates to who else is living in the household, and the Applicant answers they are children living with them. 

   TRIBUNAL:  Anyone else? 

   WITNESS:  No.  No, member. 

9. Then the next lie:

   TRIBUNAL: Has anyone else ever lived there in the time that you were living there?

   WITNESS: No, ma'am.

10. Then in relation to the Tribunal then asked:

    TRIBUNAL: Do you know any one else who has applied for a protection visa in Australia, any one personally?

    WITNESS:  No, ma'am.

11. The lies in that regard were ones all of which related to the applicant’s cousin.  Lies in respect of living at the address with the applicant’s cousin and having come to Australia with the applicant’s cousin.  These lies all raise the question of why was the applicant lying in relation to her cousin.  They were clearly matters relevant to the application for review.

12. In that regard, question 32 on the personal particulars for assessment, including character assessment, in support of the protection visa application, asked the following question:

    Are you travelling, or did you travel, to Australia with any other person?

13. The box ticked is no.

14. Mr Silva, again, properly conceded that this was a lie by his client.  A lie, again, relating to the applicant’s cousin. 

15. It was in those circumstances that the Tribunal on page 39 of the transcript said as follows:

    TRIBUNAL: I have an obligation to put to you in a certain format particular types of information which, subject to your comments, might lead to some adverse conclusions being drawn in your case, and I have to explain to you what the information is, as well as its relevance and possible consequences before I invite you to respond. So please do not respond until I invite you to. Now, I have got a copy of the most recent tourist visa application that you lodges, which appears to have been signed on 9 March 2012.

    It attached documentation from a person who you identify as your cousin named – I will just get the exact name. My apologies. I have just got to find the correct document. [MS], and her passport number is identified, and department movement records, which record when someone enters and exits a country, indicate that she arrived in Australia on the same flight as you at the same time as you and that she resides at the same address as you.

    This information is relevant to the review because I asked you, when we first started today, whether you travelled to Australia with anyone and who lives at your address in Townsville. You said that you travelled alone and you did not mention this lady at all. If I rely on that information, I could draw the conclusion that you are not being forthcoming or entirely honest in some of the evidence that you are giving, which could cause general or broader credibility concerns about the truth of the claims and evidence that you have put forward. You have a right to request additional time to respond, but you are welcome to do so immediately if you wish.

    WITNESS: I apologies, ma’am. My mistake with [M] and me since our applications have been considered separately with he and me, and the plan of coming over was not planning together to come over together, and that’s how I thought that it was not related to me coming with her. That was my understanding, just because I was – visa and application were considered separately on that occasion, and I thought – my understanding was that.

    TRIBUNAL: The people living in your household and who have ever lived in your household in Townsville, when the information suggests you are living in the same household as this woman?

    WITNESS: With [M] –so we came together and she is now in Palm Island.

    TRIBUNAL: Did you live together?

    WITNESS: Yes, from Townsville and then to Palm Island.

    TRIBUNAL: So why did you mention her when I asked who was living in your household in Townsville?

    WITNESS: Sorry, ma’am, that was just my understanding. I thought we were considered separate – separate people. That was just my understanding for that because I’m now in Townsville. Even in Palm Island, we work together same (indistinct) in Palm Island.

    TRIBUNAL: You mentioned that you have made separate applications. Has she also applied for a protection visa?

    WITNESS: That is right, ma’am.

    TRIBUNAL: Do you know what her claims are?

    WITNESS: No

    TRIBUNAL: You do not know why she fears returning to Fiji?

    WITNESS: No

    TRIBUNAL: Even though you lived together and came here together?

    WITNESS: That’s right. I haven’t read these submissions or written response.

    TRIBUNAL: No, but have you – I mean, you lived together, you’re cousins, you came here together. Have you not mentioned why you are afraid or why she is afraid to return to Fiji?

    WITNESS: We talk about that, why we afraid. We talk about it and---

    TRIBUNAL: Why has she said she’s afraid?

    WITNESS: I did not really get into – like, we were just having our, our conversation (indistinct) like, to what she applied for – when we applied – like, we applied on different visas, ma’am. Like, we were dealt with separately and to the contents of what she has in the submission, man, honestly – to be honest with you – I don’t really know. I don’t really know.

    TRIBUNAL: Yes, I am not asking about the detail or what she has written, or anything like that, but I mean, it seems clear now that you came to Australia together, you lived together in Townsville. You live and work together in Palm Island. It seems you have had a lot of opportunity to discuss why you are afraid to return to Fiji, each of you. I am just wondering even if you know that basis gist of why she might be afraid? 

    WITNESS: I – honestly, I wouldn’t really understand he details.

16. Mr Silva properly conceded that the last sentence of the Tribunal in para.11, when it refers to ‘the above’ in respect of significant concerns regarding the applicant’s credibility, clearly includes the lies told to the Tribunal directly.  Mr Silva conceded that that was made patent by the reference in the last line to:

    “clear and direct questions put to her by the Tribunal.”

17. There is no question that the credibility is a relevant subject matter in respect of any application within the statutory scheme.  Credibility is not an irrelevant consideration.

18. It was a matter for the Tribunal to determine for itself the applicant’s credibility and it cannot be said that the questions asked by the Tribunal in relation to the cousin, given the lies that have been admitted and were, in fact, admitted to the Tribunal, were questions that the Tribunal was not entitled to explore. 

19. This is not a case where the Tribunal went on a frolic of its own in relation to some application unrelated to the application in question.  There was a clear link between the applicant and her cousin, a clear link in relation to the application she made and the false answer she gave to question 38 of her Personal Particulars for Assessment, including Character Assessment.

20. Further, to the extent that the Tribunal raised some questions concerning the application of the cousin, it is crystal clear that that was in response to the applicant herself having raised their respective applications for a protection visa in her answer to the lies that she told and in apologising for those lies.

21. The Tribunal was entitled to test and explore the nature of that apology and explanation for the lies.  It was in that context that the Tribunal raised that the applicant had identified a separate application for protection by her cousin with whom she travelled to Australia and whom she lived with and told lies about to the Tribunal.

22. In those circumstances, it was perfectly permissible to explore with the applicant in relation to her explanation what her cousin’s claims might be and whether they had been discussed in relation to the fears her cousin may have had in returning to Fiji in the context of evaluating the credit of the applicant. 

23. There is no substance in ground 1 of the application.  It cannot be said that the credibility issue being explored was irrelevant, and the finding made by the Tribunal was clearly open.

24. In relation to the second ground, it is also completely lacking in substance.  In circumstances where the Tribunal has identified lies by the applicant and is exploring the credibility of the applicant’s answer and explanation for those lies, to suggest that that amounts to unreasonableness in a Minister For Immigration And Citizenship v Li [2013] HCA 18 sense is, in my opinion, vexatious.

25. It is extremely important that practitioners only certify applications in accordance with a scheme intended by the Migration Act.  Neither of the grounds in the present case were ones which disclosed the alleged jurisdictional error as having any reasonable prospect of success.  However, as the matter was allowed to proceed to a final hearing, I will not explore that latter aspect further.

26. There is no substance in the second ground.

27. Given the limited nature of the alleged jurisdictional error issues raised in this case, it is not necessary to summarise either the applicant’s history and earlier visits to Australia before making the protection visa application or the analysis engaged in by the Tribunal in its review.  I

28. It is clear that the findings made by the Tribunal were open on the material before it and it cannot be said in respect of any of those findings that they lack an evident and intelligible justification.

29. In those circumstances, the application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  23 March 2015