SZTMG v Minister for Immigration
[2015] FCCA 457
•5 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTMG v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 457 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.424A |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171 |
| Applicant: | SZTMG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2713 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 25 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2015 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2713 of 2013
| SZTMG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 10 October 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Burundi, arrived in Australia in October 2011 to attend a short course in diplomatic training. In November 2011 he lodged an application for a protection visa. In a supporting statutory declaration he claimed that in 2009 he had joined the Movement for Solidarity and Development (sic) (the MSD) in Burundi and that he had been issued with a membership card. He claimed he did so because he was motivated to fight against the ruling party (the CNDD-FDD), which he said was characterised by crime, violence and corruption.
The Applicant claimed that in 2010 he took time away from work and returned to his “native province” to vote for the MSD, that he became publicly known as a member of the MSD and that he had denounced the ruling party for mismanagement of public funds, corruption and extrajudicial killings.
According to the Applicant, after the 2010 elections, the MSD and other parties formed a coalition (the ADC-Ikibiri) and “we” denounced alleged fraud and irregularities in voting. He claimed that from that time on the ruling party considered the coalition and some members of the MSD party to be enemies and acted to eliminate them. He referred to the arrest and imprisonment of the leader and of a spokesman for the MSD. He also claimed that a named relative who had been a very active member of the MSD and was well known for his political views, had been killed by policemen. The Applicant claimed that he had attended his relative’s funeral at which the police had dispersed the mourners using tear gas.
The Applicant claimed that on 22 January 2011 a group of people came to his house during the night and stole all his belongings, including the computer on which he stored political documents and personal information. He claimed his neighbour told him she saw the burglars and that they had guns. He thought that the burglary was intended to scare him so that he would not continue to oppose “them”.
The Applicant also claimed that on 28 April 2011 a group of “criminals” attacked “our homes” and that his neighbour was killed. He claimed that he fled from his home, believing the attack was politically motivated because his neighbour was also a member of the ADC-Ikibiri.
In addition, the Applicant claimed that in September 2011 he had received anonymous telephone calls and that on 15 September 2011 (after a meeting about the role of the National Independent Commission for Human Rights at which he had condemned police involvement in violence), he had received a telephone call from an unknown man referring to the Applicant’s lack of confidence in the police and suggesting that he “look for [his] own police”. As a result he rang the police to complain. He claimed that he also wrote to the police on 22 September 2011 to intervene, but it was “in vain”.
The Applicant claimed that on 5 October 2011 three people followed him and that rather than returning to his home he stayed at his brother’s home until he left for Australia some days later.
The Applicant claimed that on 14 November 2011 he received an email from his brother, who informed him that the police had asked him about the date of his return to Burundi. The Applicant claimed to know that “these people” were policemen from the intelligence services working with Imbonerakure, a pro-government militia that was looking for him.
The Applicant claimed to fear that he would be arrested, detained, tortured and killed by police from the intelligence services working with Imbonerakure if he returned to Burundi.
The Applicant provided further documents in support of his application, including a written submission on 15 May 2012 in which his advisor claimed that he feared persecution in Burundi by members of the Burundi secret service and associated militia (the Imbonerakure) by reason of his political opinion and that he feared he would be targeted for his political opinion because he was a “high-profile member” of the MSD and also of the ADC-Ikibiri. The submission elaborated on the Applicant’s claims in the Departmental interview that he was active at a senior level in the MSD (including in organising meetings and ceremonial occasions and in public relations) and that he was a member of the Organising Committee of the MSD in Bujumbura. He also claimed he had been introduced to the MSD by a close associate who was arrested in 2010.
The advisor submitted that when considered in conjunction with cited independent country information the Applicant’s political profile as a member of an opposition group supported his claims on the basis of his political opinion. It was submitted that the Applicant’s claims had nothing to do with the fact that he worked in the Burundi civil service.
The advisor also claimed that the Applicant was entitled to protection under the complementary protection criterion as a perceived member of an opposition party.
The advisor provided documents and translations in support of the Applicant’s claim, including what was said to be a copy of his MSD membership card; a document from his employer recording the decision to grant him annual leave for two weeks in May 2010; a police certificate of theft declaration relating to an incident on 22 January 2011 and a letter written by the Applicant to the police on 22 September 2011.
The protection visa application was refused by a delegate of the First Respondent on 28 May 2012. The Applicant sought review by the Tribunal. His advisor provided a further submission in support of his claims on 16 August 2012 in which it was claimed that the Applicant would be perceived to hold a political opinion in opposition to the ruling party in Burundi because of his membership of and activities supporting the MSD and that he feared in particular that he would be seriously physically abused and/or killed. The submission addressed findings made by the delegate and provided further country information in relation to the Applicant’s claims.
The Applicant attended a Tribunal hearing on 22 February 2013. His advisor attended and he had the assistance of an interpreter.
On 27 February 2013 the Tribunal wrote to the Applicant under s.424A of the Migration Act 1958 (Cth) (the Act) putting to him certain information for comment, including some apparent inconsistencies in his claims and discrepancies between his claims and independent country information. The Applicant responded to the s.424A letter by letter of 12 March 2013.
The Tribunal decision
In its reasons for decision of 10 October 2013, the Tribunal summarised the Applicant’s claims as follows:
He claims that in 2009 he joined an opposition political party in Burundi, the MSD, because he was motivated to fight against the ruling party. He claims that in January 2011 his home was burgled, that in April 2011 his home was attacked and one of his neighbours was killed, that in September 2011 he received anonymous telephone calls and that in October 2011 he escaped from people who he believed were running after him. He claims that he fears that if he returns to Burundi he will be arrested, detained, tortured and killed by the police from the intelligence services working for a pro-government militia called the Imbonerakure.
Before turning to a consideration of those claims, the Tribunal addressed the Applicant’s capacity to participate effectively in the Tribunal hearing in light of a letter of 25 January 2012 from a project assistant with the Jesuit Refugee Service in Australia which stated that the Applicant suffered from nightmares, interrupted sleep and strong heart palpitations and had been referred to see a psychologist for emotional trauma suffered as a result of physical and psychological threats and abuses. It also had regard to a letter of 31 January 2012 in which a counsellor at the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) stated that he had conducted an assessment of the Applicant, who had reported a range of severe signs and symptoms associated with post-traumatic stress, anxiety and depression and expressed the view that “as a consequence of this symptomatic presentation” the Applicant was currently not capable of undertaking paid employment.
The Tribunal stated that it had considered the evidence regarding the Applicant’s emotional trauma, post-traumatic stress, anxiety and depression in assessing whether he had the capacity to participate in the Tribunal hearing. It found that although the counsellor had stated that the Applicant’s symptoms included poor concentration and memory, the Applicant had had no apparent difficulty in recounting the events which he claimed prompted him to leave Burundi (although he claimed to have difficulty remembering any dates except the date of the burglary at his home on 22 January 2011). The Tribunal found that at the hearing the Applicant had answered questions appropriately. It was of the view that he understood the issues raised with him in the course of the hearing. The Tribunal concluded that the Applicant was able to participate effectively in the hearing.
The Tribunal set out the claims made by the Applicant, the issues discussed at the Tribunal hearing, the s.424A letter and the Applicant’s response.
The Tribunal concluded that, as was said to have been discussed at the hearing and as referred to in the s.424A letter, there were good reasons to find that the Applicant was not a credible witness. It set out a number of factors to which it had regard in reaching this conclusion.
First, the Tribunal had regard to the fact that the Applicant’s claims about when the leader of the MSD had been arrested and imprisoned and his home searched and when he fled the country were inconsistent with country information. In particular, it had regard to the fact that while the Applicant claimed that the leader’s house had been searched before he had been imprisoned and that he had fled the country after his release, country information showed that the search of the leader’s house had occurred after he had left the country.
The Tribunal also had regard to the fact that, while the Applicant had claimed in his original statutory declaration that a particular spokesman for the MSD was in prison and had told the Tribunal that this person had been accused of verbally insulting a Magistrate in an attempt to intimidate him for political reasons, as it had put to the Applicant and referred to in its s.424A letter, the evidence was that this person was in fact first arrested in September 2010 and accused of defaming the president, that he was released in October 2010 and was arrested again in July 2011 on charges of witness tampering in a murder trial. It had regard to the Applicant’s assertion that this was what he had said, but pointed out that, as it had put to him (and as referred to in its s.424A letter) there was a big difference between insulting a Magistrate and witness tampering.
The Tribunal considered that this information was relevant to the review because the Applicant and his advisor had claimed that he was not only a member of the MSD but also a member of the Organising Committee of the MSD in Bujumbura (the capital of Burundi). In addition, his representatives had claimed that the Applicant was a high-profile member of the MSD. The Tribunal recorded that it had put to the Applicant that if this were true, he would know more about the arrests of the leader and spokesman for the MSD than he appeared to know. Insofar as the Applicant had explained at the hearing that he had believed the spokesman had been accused of insulting a magistrate because this was what he had heard on the radio, the Tribunal indicated that, as it had put to him, it may take the view that if the Applicant had held the position he claimed to hold in the MSD, he would not simply have been dependent on what he had heard on the radio for his knowledge of the reasons for the spokesman’s arrest.
The Tribunal observed that in the response to the s.424A letter the Applicant’s representatives had not expressly abandoned the claims that he was a high-profile member of the MSD and a member of the Organising Committee of the MSD in the capital, but had said that he had not known either the leader or the spokesman personally and that any information he had had in relation to the spokesman in particular was second-hand. It acknowledged that the Applicant claimed that it was not only high-profile members of the MSD who faced persecution in Burundi and that ordinary members of the MSD were also at risk.
The Tribunal also recorded the advisor’s explanation for the Applicant’s lack of knowledge, including that the events in question took place a number of years earlier, at a time when the Applicant was under extreme psychological stress because of fear for his own life and that these factors had caused his ability to recall the events accurately to diminish.
However, the Tribunal found:
If [the Applicant] had claimed that he had merely been a low level supporter of the MSD then I would of course have had different expectations of his knowledge of these matters. Likewise, if he had contented himself with saying, as he did in his statutory declaration, that Mr Sinduhije [the leader of the MSD] had been arrested and imprisoned and had fled the country after his release and that Mr Nyamoya [the spokesman for the MSD] had been imprisoned as well, but that due to psychological stress and the lapse of time he was unable to recall any more detail in relation to these events, I would have not have had the same issues with regard to his credibility. However, as referred to above, [the Applicant] has claimed that he was a member of the Organising Committee of the MSD in Bujumbura and his representatives have submitted that he was a high profile member of the MSD. Moreover it was [the Applicant] himself, despite his claimed difficulties in recalling these events, who volunteered the information that Mr Sinduhije had been imprisoned after his home had been searched. When I put to him that the search had taken place after Mr Sinduhije had left the country he denied that this was correct. Likewise it was [the Applicant] who volunteered the information that Mr Nyamoya [the spokesperson] had been accused of verbally insulting a magistrate and, when I put to him that Mr Nyamoya had in fact been charged with witness tampering he repeated that Mr Nyamoya had been accused of insulting a magistrate.
I do not accept that, as submitted by [the Applicant’s] representatives, a witness who gets one detail correct but whose recollection is at fault in other details should be regarded as giving a ‘consistent and accurate account’ of events. I consider that it is entirely appropriate to take into account in assessing [the Applicant’s] credibility not only that he knew that the police had raised Mr Sinduhije’s home and had purported to find military boots and clothes which they had in fact planted there but also that he asserted, incorrectly, that this had happened before Mr Sinduhije had left the country. I likewise consider that it is entirely appropriate to take into account not only that [the Applicant] knew that fabricated charges had been brought against Mr Nyamoya but also that he asserted, incorrectly, that these charges had related to insulting a magistrate.
I consider that [the Applicant’s] level of knowledge of these events is consistent with someone who has a general awareness of events in Burundi rather than a high profile member of the MSD who was on the organising committee of the party in Bujumbura. As stated in the Tribunal’s section 424A letter, I take the view that [the Applicant’s] apparent lack of knowledge of these events casts doubt on his claimed involvement in the MSD and therefore on the problems he claims to have had as a result of his involvement in the MSD. I also take the view that this information is relevant to his overall credibility, that is, whether he can be believed.
In addition, the Tribunal had regard to what it considered to be “significant inconsistencies” in the Applicant’s evidence with regard to the problems he claimed to have experienced as a result of his involvement in the MSD, including the fact that while he claimed that mourners at his relative’s funeral were dispersed by the police using tear gas, the information before the Tribunal indicated that it was an earlier protest in relation to this person’s death which was dispersed using tear gas, not the funeral.
The Tribunal also took into account what it considered to be a significant inconsistency between the Applicant’s initial claims that his neighbour had been shot in an attack in April 2011 and his subsequent claim that the neighbour had been killed by a grenade in the attack in April 2011. It had regard to the Applicant’s initial explanation that there had been a shot that missed and then a grenade and to his later claim that there had been a lot of shots fired and several grenades thrown and that as there was no autopsy he was not sure exactly how the neighbour had died. However the Tribunal considered that there was a very real difference between a claim that his neighbour was shot in the neck and a claim that he was killed by a grenade. It did not accept the advisor’s contention that the change in the Applicant’s evidence in this respect was a minor difference. It was of the view that, if it were true that, due to a state of extreme fear at the time of the attack and the passage of time, the Applicant was unable to recall exactly what weapons were used, then he could simply have said so, rather than giving detailed descriptions of the attack. It also had regard to the fact that, despite his claimed difficulties in recalling these events, the Applicant had told both the Department and the Tribunal what he claimed he had heard the attackers saying, but had made no mention of grenades at the Departmental interview. The Tribunal considered that this inconsistency in the Applicant’s evidence cast doubt on whether he was telling the truth about the attack.
The Tribunal considered a letter the Applicant claimed that he had written to the Director-General of the National Police in September 2011. It recorded that in the statutory declaration accompanying his protection visa application, the Applicant claimed he had written this letter on 22 September 2011,but had regard to the fact that the copy letter he produced with his original application was undated, although it was signed. His advisor had subsequently produced another “copy” of the same document which had been dated (by hand) “Le 22/9/2011”. The Tribunal considered the explanation that the Applicant had the original of this document either on a USB key or on his email account and that he had simply printed out copies of the document and signed and backdated them at the time. It acknowledged his advisor’s submission that the Applicant never claimed to have a copy of the original letter, which he had sent to the police in Burundi. However the Tribunal was of the view that if what was produced was simply the text of the letter which the Applicant claimed he sent, it should not have been put forward by him or by his advisor as a copy of the actual letter or signed and backdated to make it appear that it was a copy of the original letter. The Tribunal was of the view that by producing the signed and backdated letter in purported corroboration of his evidence that he sent a letter to the police on 22 September 2011, the Applicant had fabricated a document to support his application for a protection visa. This was said to be relevant to the Applicant’s overall credibility.
The Tribunal also considered it “relevant” that although the Applicant claimed he feared the police from the intelligence services as a result of his claimed involvement in an opposition political party, he had continued working in a Burundi government department until a matter of days before he finally left the country.
Insofar as the Applicant claimed that in November 2011 (after he came to Australia) he had received an email from his brother saying that the police had asked when he would be returning, the Tribunal considered that if the police from the intelligence services had wanted to arrest the Applicant they would have had ample opportunity to do so before he left Burundi because they would have known that he was working in the particular government department. It considered the Applicant’s explanation that the police from the intelligence services had not wanted to arrest him in an “official way” but wanted to kill opponents in such a way that people did not know about it, and that he feared unlawful, extrajudicial acts. He claimed these police would have exposed themselves to significant risks of they had targeted him at his workplace. However the Tribunal was of the view that, given the Applicant’s evidence that the intelligence services came under the President of Burundi like a presidential police, it was difficult to see what risks such police could be exposed to by targeting him at his place of work.
The Applicant’s advisor had referred to a Tribunal decision in which the Tribunal had accepted that another Applicant had a well-founded fear of being persecuted despite the fact that he had been employed as a government advisor. However the Tribunal found that each case turned on its own facts and was of the view that the fact the Applicant continued to work at a particular government Ministry in the capital until a matter of days before he finally left Burundi cast doubt on his claimed fear of the police from the intelligence services or the SNR and also cast doubt on his claims that in 2011 his home was burgled and then attacked, that he began receiving anonymous telephone calls and that in October 2011 three men wearing jackets ran after him, all because of his claimed involvement in the MSD.
For these reasons, the Tribunal did not consider that the Applicant was a credible witness. It did not accept he was telling the truth about his involvement in the MSD or the problems he claimed to have had in Burundi. The Tribunal continued:
I give greater weight to the view I have formed of his credibility than I do to certain of the documents he has produced in purported corroboration of his claims. I do not accept that the MSD membership card or the police report which he produced in relation to the supposed burglary of his home are genuine and as referred to above I consider that the letter which he produced in purported corroboration of his evidence that he sent the letter to the police on 22 September 2011 is a fabrication.
The Tribunal did not accept that the Applicant was active at a senior level in the MSD in his home province, that he was on the Organising Committee of the MSD in the capital of Burundi or that he worked with the national campaign president. It did not accept that he was a high-profile member of the MSD or the ADC-Ikibiri.
The Tribunal accepted that the Applicant took leave at around the time of the May 2010 elections but did not accept that he was involved in campaigning for the MSD at those elections, either in the capital or in his home province. It accepted that he had a relative who had stood as a candidate for the MSD and that he also had a more distant relative who was active in the MSD who was killed by the police in May 2010. However, having regard to the view the Tribunal had formed of his credibility, it did not accept that the Applicant himself “was ever perceived as a supporter of the MSD or the ADC-Ikibiri or as an opponent of the ruling party, the CNDD-FDD, nor that he was persecuted for that reason”. It did not accept that his home was burgled in January 2011 and documents relating to the MSD were stolen; that his home was attacked on 28 April 2011 and one of his neighbours was killed (either by being shot or by a grenade); that he began receiving anonymous telephone calls in September 2011; that on 15 September 2011 he attended a meeting at which he condemned some elements of the police; or that in October 2011 three men wearing jackets ran after him.
For the reasons given, the Tribunal did not accept that there was a real chance that if the Applicant returned to Burundi now or in the reasonably foreseeable future, he would be “arrested, detained, tortured or killed or otherwise persecuted by the police from the intelligence services or the SNR working with the Imbonerakure or any other militias or groups or organisations working for or on behalf of the ruling party, the CNDD-FDD, or the Government of Burundi”. It did not accept there was a real chance the Applicant would be persecuted for reasons of his real or imputed political opinion if he returned to Burundi now or in the reasonably foreseeable future and did not accept he had a well-founded fear of being persecuted for one or more of the five Convention reasons if he returned to Burundi.
The Tribunal also considered the complementary protection criterion and the advisor’s submissions that the Applicant claimed to fear substantial harm consisting of being arrested, detained, tortured and/or killed by members of the Burundi intelligence services or the Imbonerakure. Having regard to its findings of fact, the Tribunal did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Burundi, there was a real risk that he would be treated as claimed or would otherwise suffer significant harm at the hands of the police, the intelligence services or the SNR working with the Imbonerakure or any other militias or groups or organisations working for or on behalf of the ruling party, the CNDD-FDD, or the government of Burundi. The Tribunal did not accept that the Applicant met the criterion for complementary protection.
In light of these conclusions the Tribunal was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations. It affirmed the decision of the delegate.
This Application
The Applicant sought review by application filed in this Court on 4 November 2013. In his application he contended generally “Refugee Review Tribunal decision procedures error” [sic]. He filed a further application on 30 May 2014. At the hearing he confirmed that he wished to rely on the three grounds in the application of 30 May 2014. The Applicant did not file written submissions before the hearing. The First Respondent filed written submissions on 18 September 2014. At the hearing, the Applicant filed written submissions which were said to be a response to particular paragraphs of the Minister’s submission. In addition, the Applicant made oral submissions.
The Tribunal’s consideration of supporting documents
The first ground in the application of 30 May 2014 is as follows:
The Tribunal accepted some documents while rejecting others. Reference (RRT case page 20, 83). The Tribunal accepted the leave copy from work but refused the membership card.
Paragraph [83] of the Tribunal’s decision is as follows:
Although I accept that he took leave at around that time I do not accept that he was involved in campaigning for the MSD at the elections for the communes in May 2010, either in Bujumbura or in his home province of Mwaro. I accept that he has a brother-in-law who stood as a candidate for the MSD in Bisoro and that he also had a more distant relative, [EM], who was also active in the MSD and who was killed by the police in May 2010. However, having regard to the view I have formed of his credibility, I do not accept that [the Applicant] himself was ever perceived as a supporter of the MSD or the ADC-Ikibiri, or as an opponent of the ruling party, the CNDD-FDD, nor that he was persecuted for that reason. I do not accept that his home was burgled on 22 January 2011 and that documents relating to the MSD were stolen, nor that his home was attacked on 28 April 2011 and that one of his neighbours named Jean was killed, either by being shot or by a grenade. I do not accept that in September 2011 he began receiving anonymous telephone calls, nor that on 15 September 2011 he attended a meeting about the CNIDH at which he condemned some elements of the police, nor that in October 2011 three men wearing jackets ran after him.
In submissions the Applicant contended that the Tribunal had ignored relevant material and rejected key documents to support his claims. In addition to referring to the MSD membership card, he contended that the Tribunal had ignored the document he had provided from STARTTS, the letter he sent to the police and the police report in relation to the claimed burglary in January 2011.
The Applicant raised the fact that while the Tribunal accepted that he took leave at around the time of the May 2010 elections (and in this sense accepted the authenticity of a letter of 5 May 2010 from the Applicant’s government employer which granted him 10 days leave in May 2010) it had rejected (in paragraph [82]) the authenticity of his MSD membership card and did not accept his claims about his involvement in and perceived support for the MSD.
However these documents were of a completely different nature and from different claimed sources. The fact that the Tribunal accepted the authenticity of one document did not compel it to accept the authenticity of any other document of a different nature and from a different source. It was entitled to accept certain documents. That did not mean that it had to accept all the documents submitted by or in support of the Applicant’s case.
In this case the Tribunal rejected the authenticity of the MSD membership card in circumstances where, for reasons which it gave, it did not accept that the Applicant was telling the truth about his involvement in the MSD or the problems he claimed to have had. It gave greater weight to the view it had formed of his credibility than it did to “certain of the documents” he had produced in purported corroboration of his claims. In that respect it is notable that the Tribunal considered the Applicant’s claims and evidence and his lack of knowledge in light of his claim that he was not only a member of the MSD, but also a member of the organising committee of the MSD in the capital of Burundi and a high-profile member of the MSD. It did not accept that he was active at a senior level in the MSD in his home province, on the organising committee of the MSD in Bujumbura, or that he worked with the national campaign president or, more generally, that he was a high-profile member of the MSD or the ADC-Ikibiri, as he had claimed. Beyond this, while the Tribunal did accept that the Applicant had relatives who were involved in the MSD as claimed, having regard to the view it had formed of the Applicant’s credibility, it did not accept that the Applicant himself was “ever perceived as a supporter of the MSD or the ADC-Ikibiri or as an opponent of the ruling party or that he was persecuted for that reason”.
Having made such findings, contrary to the Applicant’s assertion, the Tribunal did not ignore the MSD membership card. Rather it considered the card, but did not accept that it was genuine. It was entitled to find that the MSD membership card was not authentic. As stated by the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427; [2009] FCAFC 83 (at [59]) a finding that documents are not genuine might, in a particular case, depend upon factors external to the documents. Their Honours made the point in SZMOK that direct evidence that a document was a forgery was not always necessary and that it was not an error of law for the Tribunal to reject corroborative evidence on the basis of its view of an Applicant’s credit (see WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171 at [41]).
Moreover, in this case the Tribunal in the hearing, as well as in the s.424A letter (on its own account) clearly put the Applicant on notice that it had doubts about whether he had any involvement with the MSD. It recorded that at the hearing it put to him that it had difficulty in accepting that some of the documents which he had produced were genuine in the context of explaining that it had some difficulty in accepting that he was telling the truth about his involvement in the MSD and the problems he claimed to have had in Burundi (see SZMOK at [60] – [68]). In this way the Tribunal clearly raised with the Applicant at the hearing the critical issues on which a review may depend. The circumstances were such that the Tribunal had sufficiently alerted the Applicant to the doubts it had about his credibility and also about the genuineness of the documents that he had submitted (see SZMOK at [68]). The Applicant had the opportunity to respond to the Tribunal’s concerns about the genuineness of his documentation.
Having regard to these circumstances and the Tribunal’s finding about the Applicant’s credibility, it has not been established that the Tribunal fell into jurisdictional error in not accepting that the MSD membership card was genuine.
Nor has it been established that the Tribunal fell into error in not accepting the genuineness of the letter the Applicant claimed he sent to the police, given the issues raised at the Tribunal hearing, the credibility findings described above and the Tribunal’s consideration of whether the letter produced was a “copy” of the letter send to the police or a fabrication.
In oral submissions the Applicant submitted that the Tribunal ignored the document he provided from STARTTS. Contrary to such contention, the Tribunal specifically addressed the counsellor’s letter (and the letter from Jesuit Refugee Services) in considering whether the Applicant had the capacity to participate effectively in the Tribunal hearing. The counsellor recorded the Applicant’s claimed symptoms in assessing his eligibility for financial assistance. It was not necessary for the Tribunal to address this letter in considering the Applicant’s claims. (See SZNMJ v Minister for Immigration and Citizenship (2009) 112 ALD 284; [2009] FCA 1345 at [39]).
The Applicant also claimed that the Tribunal ignored the police report in relation to the claimed burglary of his home in January 2011. However the Tribunal did consider this report. It clearly understood the Applicant’s claim that he had reported the theft of his computer and household goods and MSD documents and referred to the letter said to be from the police dated 25 January 2011 about this claimed event that the Applicant had produced at the Departmental interview. It did not ignore this document but, rather, did not accept that the Applicant’s home was burgled as claimed or that documents relating to the MSD were stolen. For the same reasons it had given in relation to the MSD membership card, the Tribunal did not accept that the police report the Applicant produced in relation to the supposed burglary of his home was genuine. It had regard to its findings that the Applicant was not credible and to the fact that it did not accept he was telling the truth about his involvement in the MSD or the problems he claimed to have had in Burundi. The Tribunal gave greater weight to the view it had formed of the Applicant’s credibility than it did to this and certain other documents he had produced in purported corroboration of his claims.
As indicated above, the Tribunal had put to the Applicant at the hearing that it had difficulty accepting he was telling the truth about his involvement in the MSD and the problems he claimed to have had in Burundi and had difficulty in accepting that some of the documents he had produced were genuine. In these circumstances it was open to the Tribunal to reach the finding that it did in relation to the claimed document from the police. It has not been established that the Tribunal ignored this document in a manner constituting jurisdictional error.
The Applicant contended that the Tribunal had to “prove” that documents he had provided were counterfeit. That is not the case. It is for an Applicant to put forward information and materials relied upon and for the Tribunal to determine whether his claims are made out (Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 per Gummow and Hayne JJ at [187]). The Tribunal is not in the position of a contradictor. It is not required to accept a claim merely because positive evidence to the contrary is not made out. Section 65(1) of the Act requires a refusal of the visa if the Tribunal is not affirmatively satisfied that the criteria for the visa have been met.
In his written submission the Applicant also contended that the Tribunal failed to consider all information put forward by him about the escalation in political violence in Burundi after the 2010 election. However as the Tribunal did not accept the Applicant’s claims about his political involvement and past experiences, it was not necessary for it to address independent country information relevant to the circumstances of those who did have such political involvement.
Insofar as the Applicant’s complaint is with the fact that the Tribunal did not accept the genuineness of the claims such documents supported, he seeks impermissible merits review.
Ground one is not made out.
Whether the Tribunal failed to consider a claim
Ground two in the Application of 30 May 2014 is a contention that:
The Tribunal neglected the role of youth wing of ruling party called Imbonerakure on killing and harassment of political opponents. Reference page 20, 84.
Paragraph [84] of the Tribunal’s reasons for decision is as follows:
For the reasons given above, I do not accept that there is a real chance that, if [the Applicant] returns to Burundi now or in the reasonably foreseeable future, he will be arrested, detained, tortured or killed or otherwise persecuted by the police from the intelligence services or the SNR working with the Imbonerakure or any other militias or groups or organisations working for or on behalf of the ruling party, the CNDD-FDD, or the Government of Burundi. I do not accept that there is a real chance that [the Applicant] will be persecuted for reasons of his real or imputed political opinion if he returns to Burundi now or in the reasonably foreseeable future. For the reasons given above I do not accept that [the Applicant] has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Burundi.
It is the case that the Applicant claimed (as the Tribunal recorded) that he would be harmed by the police or pro-government militias, including the Imonerakure, because of his membership of and support for the MSD. However, the Tribunal did not accept that the Applicant had ever been perceived to be a supporter of the MSD or an opponent of the ruling political party. It was in that context and in light of such findings that it did not accept that there was a real risk that he would face persecution at the hands of the police and/or militias (including the Imbonerakure) working for or on behalf of the ruling party or the Government of Burundi. It made an express finding in relation to the Imbonerakure. This part of the Applicant’s claim was considered and dealt with by the Tribunal.
In written submissions the Applicant referred to the fact that there was a recent resolution by the European Parliament (in September 2014) condemning Imbonerakure activities. However any such resolution after the Tribunal decision does not go to show that the Tribunal failed to consider the Applicant’s claims to fear he would be harmed by the police or pro-government militias, including the Imbonerakure.
Ground Two is not made out.
The Tribunal’s Rejection of Claims about Deaths
Ground three in the application is:
The Tribunal denied two people killed, namely [the Applicant’s relative whose funeral he claimed he attended] and [the neighbour]. The evidence will be provided later.
Contrary to the Applicant’s contention, the Tribunal accepted that his relative was killed. However it did not accept his claims that his relative’s funeral was dispersed by police using tear gas in light of independent country information that it was an earlier protest in relation to that person’s death which was dispersed using tear gas.
The Tribunal also considered the Applicant’s claim that his neighbour had been killed in an attack of April 2011. However the Tribunal had regard to matter such as the inconsistent evidence from the Applicant in relation to whether the neighbour was killed by being shot in the neck or by a grenade. It had raised such concerns at the hearing and also in the s.424A letter. Having regard to this and other matters the Tribunal made an adverse credibility finding that was open to it on the material before it. It was open to the Tribunal to reject the Applicant’s claim that his home was attacked on 28 April 2011 and that one of his neighbours was killed (whether by being shot or by a grenade) on the material before it for the reasons that it gave. This ground of review amounts to an expression of dissatisfaction with the Tribunal’s factual findings. It seeks merits review and does not establish jurisdictional error.
The Applicant’s assertion evidence would be provided in the future to prove the deaths occurred is not indicative of a jurisdictional error on the part of the Tribunal.
Ground Three is not made out.
Other issues
The Applicant raised a number of other matters in written and oral submissions. His written submissions were numbered to respond to particular paragraphs in the Minister’s written submissions. The first paragraph referred to is paragraph [4] of the First Respondent’s submissions. It contained a summary of the Tribunal’s findings and the key reasons for its rejection of the Applicant’s credibility. It does not involve submissions from the First Respondent as to the grounds relied on by the Applicant.
However, in his written submissions the Applicant referred to the factors taken into account by the Tribunal in finding that he was not a credible witness. He sought to address the issues that were of concern to the Tribunal. For example, the Tribunal had regard to the Applicant’s lack of knowledge in relation to the MSD leader and spokesman. The Applicant provided reasons for his limited knowledge in his submissions. He contended that the Tribunal had identified a wrong issue in taking into account his lack of knowledge.
Insofar as the Applicant takes issue with the Tribunal credibility findings generally, credibility is a matter for the Tribunal. The findings that it made in relation to the particular matters complained of by the Applicant, as well as in relation to the other factors to which it had regard in assessing the Applicant’s credibility and as its overall conclusion were open to it for the reasons which it gave on the material before it. Insofar as the Applicant cavils with the factual findings and merits of the Tribunal decision, this does not establish jurisdictional error.
Counsel for the First Respondent addressed the possibility that the Applicant’s contention in this respect could be seen as raising a claim of irrationality or illogicality. However, as contended for the Minister, in this case the Tribunal made credibility findings on the basis of a number of different factors. It exercised care in its consideration of inconsistent evidence. As explained in its reasons for decision, it raised matters of concern with the Applicant and considered the explanations given by him and his advisor. There is nothing in the circumstances of this case to support any contention that the Tribunal’s decision was irrational, illogical or not based on findings or inferences of fact supported by logical grounds. It reached its findings in a reasoned fashion on the basis of credibility findings for which it gave detailed reasons. It cannot be said that the Tribunal’s decision was one at which no rational or logical decision-maker could arrive on the same evidence (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 per Crennan and Bell JJ at [132], [131]). Nor can it be said that the Tribunal decision and conclusion lacked an intelligible justification.
The Applicant also claimed that the Tribunal erred in the approach that it took to the letter he claimed he wrote to the Director-General of Police in September 2011. The Applicant’s disagreement with the Tribunal’s findings in that respect and the further explanation that he now gives in relation to the circumstances in which he kept copies of such a letter are not indicative of jurisdictional error on the part of the Tribunal.
The Applicant took issue with the fact that the Tribunal had regard to the fact that he continued to work in a Burundi Ministry until shortly before he left the country. The explanations that the Applicant provides for his continued work are not such as to establish that the Tribunal fell into error such as to be indicative of jurisdictional error. It was open to the Tribunal to take the view that if the police from the intelligence services had wanted to arrest the Applicant, they would have had ample opportunity to do so before he left Burundi because they would have known he was working at the Ministry, and that it was difficult to see what risks the SNR would be exposed to by targeting him at his place of work. It was also open to the Tribunal to have regard to this matter in assessing the Applicant’s credibility.
As the First Respondent submitted, the Tribunal considered the claims made by the Applicant and his factual assertions and addressed such claims insofar as it was necessary to do so. It has not been established that it fell into error in so doing. The Applicant’s further explanation as to why certain aspects of his claims ought to have been accepted does not establish jurisdictional error.
The Applicant also responded to paragraphs in the First Respondent’s written submissions which summarised the Tribunal’s findings in relation to the complementary protection criterion (which were largely based on its earlier factual findings). The Applicant contended that the current situation showed substantial grounds that he would suffer significant harm if he returned to Burundi. He referred to events of March 2014 in support of the proposition that his fear of being targeted was real and that every MSD member was closely monitored. As I endeavoured to point out to the Applicant, if his claim is that circumstances have changed in Burundi in a relevant respect, this is a matter that he may raise with the Minister. However such concern is not of itself indicative of jurisdictional error on the part of the Tribunal. Rather, he takes issue with the Tribunal’s factual findings and seeks impermissible merits review.
The Applicant also took issue with paragraph [7] of the Minister’s written submissions which addressed his first ground of review. In that context the Applicant elaborated on his contention that the Tribunal had ignored relevant material and rejected key documents. These contentions are discussed above in relation to Ground One. In addition, the Applicant claimed that people had donated money and clothes after his place was ransacked and suggested that names and telephone numbers could be provided as proof. There is no suggestion that such evidence was before the Tribunal. The Tribunal was not under an obligation to accept the Applicant’s claims in the absence of proof to the contrary. Nor was it under an obligation to make inquiries or to obtain such evidence.
The Tribunal was aware of the Applicant’s claims about a burglary. It specifically considered this claim and the genuineness of the police report. It was entitled not to accept the document or the claim, having regard to its credibility findings in circumstances where the Applicant had been put on notice about the concerns the Tribunal had in this regard.
The Applicant’s written submissions also addressed paragraph [9] of the First Respondent’s submissions in relation to the second ground of review. As discussed above, he contended that the Tribunal had failed to consider information put forward by him about an escalation in political violence after the 2010 elections. In addition it was submitted that the Tribunal failed to consider “all substantial claims”. It has not been established that the Tribunal failed to consider the Applicant’s claims or any integer of the Applicant’s claims in a manner constituting jurisdictional error. The Tribunal considered not only the claims about the Applicant’s level and degree of involvement with the MSD, but also rejected any contention that he was ever perceived as a supporter of the MSD. Insofar as issue was taken with the Tribunal’s consideration of country information, it was not necessary for the Tribunal to traverse all the items of evidence before it. In particular, in circumstances where the factual underpinnings of a claim fell away, the Tribunal was not under an obligation to consider independent country information that would be relevant in circumstances where a factual claim was accepted.
The last paragraph of the Applicant’s written submissions referred to with paragraph [11] of the First Respondent’s written submission in relation to Ground Three. It raised, for the first time, a contention that the Tribunal “shows bias in its decision by accepting only documents from work while rejecting everything”.
A claim of bias is not made out. It is well-established that allegations of bias must be distinctly made and clearly proved. That has not occurred. In any event, the evidence before the Court does not establish a state of mind consisting of pre-judgment such that the Tribunal could be said to have been so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented in the sense considered in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69] and [72]. Nor is this a case in which it can be said that apprehended bias is apparent from the perspective of the hypothetical fair-minded layperson properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 and Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48). In particular the fact that the Tribunal did not accept all of the Applicant’s documents as genuine is not such as to establish either actual or apprehended bias. An allegation of actual bias would rarely be demonstrated solely by reference to the reasons for decision of the Tribunal. In this case the Tribunal’s findings were open to it on the material before it for the reasons which it gave, as discussed above. It has not been established that the Tribunal’s fact-finding was conducted in an unreasoned, irrational manner or that it was plainly wrong or selective of material going one way such that the hypothetical fair-minded layperson might or would reasonably apprehend that the Tribunal’s conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly (see NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264; [2004] FCAFC 328 at [115] per Allsop J).
The Applicant has not pointed to anything in the conduct of the Tribunal hearing or at any other stage during the Tribunal review to suggest any apprehension of bias. The Tribunal gave reasons that were open to it on the material before it for its acceptance of certain documents but not others. Neither actual or apprehended bias is established on the material before the court.
As none of the grounds relied on by the Applicant has been established, the application must be dismissed.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 5 March 2015
0
16
2