WZARX v Minister for Immigration
[2013] FCCA 1640
•16 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZARX v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1640 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political and ethnic persecution in Guinea – applicant not believed – applicant previously claiming to be a refugee in the USA – Tribunal considered the applicant’s claim to have been accepted there as a refugee but irregularly removed – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Abebe v Commonwealth (1999) 197 CLR 510 Waterford v Commonwealth (1987) 163 CLR 54 |
| Applicant: | WZARX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 281 of 2012 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 16 October 2013 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 281 of 2012
| WZARX |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 22 October 2012. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Guinea and has made claims of persecution based upon his ethnicity and also political opinion. The following statement of background facts relating to the applicant’s claims and the decision of the delegate and the Tribunal on them is derived from the Minister’s written submissions.
The applicant, a citizen of Guinea, arrived in Australia on 13 May 2011, travelling on a Belgian passport in another person’s name (said to be the applicant’s brother)[1]. The applicant applied for a protection visa on 3 June 2011[2]. The Minister’s delegate interviewed the applicant on 21 March 2012, and refused the visa on 23 March 2012[3]. The applicant applied to the Tribunal for review on 27 March 2012[4]. The Tribunal held hearings on 13 July 2012[5], 24 July 2012[6] and 5 October 2012[7].
[1] Court Book (CB) 98.5
[2] CB 1-47
[3] CB 94-110
[4] CB 113-118
[5] CB 153-155
[6] CB 192-194
[7] CB 206-208
The applicant claimed to fear persecution in Guinea for reasons of his ethnicity/race because he belonged to the Fulah (or Pehl) ethnic group, and his political opinion and activity. He claimed he was an active member of the UFDG, organised support amongst dispersed Guineans in the USA and that on 3 April 2011 he organised a welcome celebration for the UFDG leader (Cellou Diallo). He claimed that on 8 April 2011 he was arrested by military police and taken to prison. He claimed he was tortured and forced to sign a document confessing to organising a rebellion against the government. He claimed that on 6 May 2011 he was released after his brother paid a bribe to the military chief, and that his brother also arranged for the applicant to be smuggled across the border before he travelled to Australia. The applicant also claimed that since arriving in Australia he had had spoken at a meeting of the Guinea Community Association of Western Australia (GUICAWA) and received a number of threatening phone calls relating to this involvement[8].
[8] See generally CB 215-231
On the basis of comprehensive adverse credibility findings the Tribunal rejected all of the applicant’s claims for protection. It found he was an unreliable witness who had fabricated his claims for protection[9]. The Tribunal did not accept that the applicant had suffered any past harm for reasons of his political opinion[10] and was also not satisfied on the evidence before it that he would be politically active if he returned to Guinea[11]. It also found that the applicant had engaged in conduct in Australia with GUICAWA for the sole purpose of strengthening his claims to be a refugee and therefore disregarded that conduct pursuant to s.91R(3) of the Migration Act 1958 (Migration Act)[12]. On the basis of accepted independent country information, the Tribunal also found that whilst the applicant might suffer some discrimination for reasons of his ethnicity in Guinea, it found that such discrimination would not for the purposes of ss.91R(1)(b) and 91R(2) of the Migration Act amount to “serious harm”[13].
[9] at [120]
[10] at [139]
[11] at [140]
[12] at [143]
[13] at [130]
These proceedings began with a show cause application filed in Perth on 28 November 2012[14]. The applicant continues to rely on that application. The application is defective, on its face, in that it does not assert any grounds of review. The application was, however, amended by a document filed in Court by leave on 24 April 2013 when I heard the applicant’s request for an extension of time for the filing of the application. Having heard the applicant, I granted the extension of time and identified two issues upon which the Minister should be required to show cause why relief should not be granted:
2.Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is to show cause why relief should not be granted in relation to the following issues:
(a)whether the Tribunal erred in failing to inquire about the applicant’s wife’s immigration status in the USA; and
(b)whether the Tribunal erred in its finding at [123] of its reasons that certain documents provided by the applicant were not genuine by reference to American information which failed to address the question asked as to the authenticity of those documents.
[14] The proceedings were transferred to Sydney at the applicant’s request
I have before me as evidence the court book filed on 13 February 2013.
I also have the benefit of the parties’ written and oral submissions. The applicant’s contentions are best summarised in a document filed in Court by leave today:
1. The Tribunal erred to establish the applicant non credibility by relying answers provided by the United States of America which did not respond the specific questions asked by the Tribunal.
2. The United States of America knowingly refused to answer the specific questions requested by the Tribunal because they know that all my documents are genuine.
3. The Tribunal claimed that I lied and fabricated all my documents, but what I told them is exactly what the United States told them [except] that they did not answer whether the document I presented were genuine or not.
4. There is an error of law in the Tribunal making wrong finding fact because there is no contradiction between what I told them and what the United States told them. And the genuineness of my document is verifiable through the United States Citizenship and Immigration Services web site.
5. As there is jurisdictional error by the Tribunal, my application should be reconsidered.
As is noted in the Minister’s submissions, the Tribunal’s finding that the applicant was not credible and his essential claims untrue is a finding of fact par excellence, and the Minister refers to the oft-cited decision in Re Minister for Immigration; ex parte Durairajasingham[15]. The Court must be careful not to stray into the realm of merits review.
[15] (2000) 168 ALR 407
In terms of the issues raised by the Court and addressed by the parties, the Tribunal’s record of the three hearings conducted by it disclose that at the first hearing conducted on 13 July 2012 the Tribunal asked the applicant to explain his association with the United States and his visa status there. The Tribunal records at [52]-[56] of its reasons[16] what the applicant said. The Tribunal decided at that point to adjourn the hearing in order to make inquiries about the authenticity of documents relied upon by the applicant relating to his visa history in the United States. The hearing resumed on 24 July 2012. The Tribunal records at [63] of its reasons[17] that at that time the applicant invited the Tribunal to check his documents with the United States Government. At [69] of its reasons[18], the Tribunal records that it adjourned the hearing and informed the applicant that it would make inquiries of the relevant US authorities to determine his precise immigration status according to them. The Tribunal advised the applicant that depending on the outcome of those inquiries, it might need to hold a further hearing. The Tribunal then details at [70] and [71] of its reasons[19] the inquiries made. The hearing resumed again on 5 October 2012. The Tribunal explained the information it had received and invited the applicant’s response, pursuant to s.424AA of the Migration Act. The applicant responded to the information at that hearing. The response was a detailed one and is recorded in the Tribunal’s reasons.
[16] CB 221
[17] CB 223
[18] CB 224
[19] CB 225-226
In its findings and reasons at [120][20], the Tribunal found that the applicant was not a reliable witness. The Tribunal referred to inconsistencies in the applicant’s evidence as well as exaggeration and fabrication. The Tribunal referred to the documents which the applicant provided which he claimed granted him the right to live in the USA for 10 years between 2002 and 2012. However, the Tribunal’s inquiries with the United States Department of Homeland Security made through the Australian Department of Foreign Affairs and Trade revealed that the applicant had made two asylum applications to the USA which had been refused, and he was deported from the USA and did not have a right to re-enter and reside in that country.
[20] CB 238
It appeared that the second asylum claim had been made using an assumed name, and that the applicant had also re-entered the United States using a false Belgian passport. The Tribunal concluded that the applicant was not a witness of truth. Nevertheless, the Tribunal went on to consider the applicant’s claims for protection. There is no issue raised in these proceedings concerning the way the Tribunal dealt with the applicant’s claims based on his ethnicity and his political opinion, or his conduct in Australia. The issue raised relates to the applicant’s claims concerning his immigration status in the USA.
The Tribunal dealt with that aspect of the matter at [122]-[126] of its reasons[21]:
The applicant claims, amongst other things, that he was granted a right to reside in the USA for the period 2002 to 2012 on the basis that his former wife was granted asylum there. The details of the applicant’s claim regarding USA are set out in this decision record under the record of the Tribunal’s hearings. The critical questions in the Tribunal’s view are: what in fact occurred, and the applicant’s visa status in the USA. The Tribunal considers the applicant’s migration history in respect of the USA is relevant in terms of determining his claims for protection in Australia insofar as determining the applicant's credibility, and also insofar as determining whether he has third country protection which may result in Australia being taken not have protection obligations to the applicant pursuant to subsection 36(3) of the Act.
The applicant claimed that there is some irregularity with the USA's handling of his application for asylum. Based on the information cited above which the Tribunal received from the US Department of Homeland Security Foreign Liaison Office, the Tribunal finds that the relevant asylum determining authority in the USA has found, on at least two instances, that the applicant is not a person to be afforded protection as a refugee on the basis of his own claims. The information from the US Department of Homeland Security is that his applications, and his appeals, were refused and dismissed respectively, and that he was removed or deported twice from the USA. This report is also clear that he does not have a right to re-enter or reside in the USA due to the commission of fraud. In light of this, there is in the Tribunal’s view, no room to interpret certain documents provided by the applicant as being genuine. For example, the Tribunal considers the document referenced EAC-03-176-50039 and which the applicant claims grant him asylum or refugee status for a period of 10 years from 2002 to 2012, is not a genuine document in light of the advice given by the US Department of Homeland Security. The Tribunal finds that there is no reliable or credible evidence given by the applicant to suggest that the relevant asylum assessing authority in the USA made a relevant mistake in assessing his application, or that the US Department of Homeland Security made a mistake in providing its report via DFAT to this Tribunal, or that the information provided to the Tribunal is tainted by error. The Tribunal does however accept the applicant’s claim that he was not removed to Paris France and that this was an error on the original report provided to the Department. The Tribunal considered the applicant has attempted to explain the refusal of asylum in the USA by claiming that he was refused asylum because he overstayed his student visa, and such things as the US Immigration and Customs Enforcement (ICE) being “out of control”. The Tribunal finds these attempted explanations to be inadequate attempts to obfuscate or confuse what actually happened in respect of the applicant’s asylum applications in the USA.
The Tribunal rejects the applicant’s claim where he said he believed he had a ten-year right to reside in USA because of reference to such a period in the document referenced EAC-03-176-50039. Even if the Tribunal accepted the document to be genuine, which it does not, the Tribunal rejects the applicant’s claim that the applicant, a seemingly well-educated man who claims to hold a Master’s degree, would genuinely hold the view that he had a right to continue residing in the USA as claimed, that is for 10 years, having had his asylum claims refused twice, having been deported or removed from the USA twice, and in between time having re-entered the USA using his cousins passport.
The applicant urged the Tribunal to check the US Information Service website by entering the receipt numbers he provided to the Tribunal which he claims would show that his claim is genuine. The applicant also claimed that the Tribunal would be able to confirm his statements about his migration history in the USA and the authenticity of the documents he has provided the Department and the Tribunal regarding his migration history in the USA. The Tribunal entered the receipt numbers into the relevant inquiry field on the US Citizenship and Immigration Services website ( The Tribunal made the relevant inquiry on the USCIS website using the reference numbers provided by the applicant. The Tribunal found that although the numbers provided by the applicant generates results when entered into that website, the results are no more than records of action taken by the USCIS. In particular, the Tribunal finds that one inquiry results in a notice that on June 18, 2003, the USCIS transferred an application to another office for processing because the other office has jurisdiction. The other inquiry using a second reference number results in a notice that on August 25, 2005, the USCIS received a notice of appeal and that it mailed a notice describing how it will process the case. The Tribunal found that there is no identifying information or information which confirms the applicant’s identity, or that the reference numbers are in fact associated with the particular applicant. In light of this result, and while accepting that the numbers provided by the applicant may be genuine numbers, because the inquiry results do not show identifying information linking the applicant to the particular information, the Tribunal decided it would not place weight on this source of information. In its place, the Tribunal decided that it would rely on the information provided by the US Department of Homeland Security, and which was put to the applicant pursuant to s.424AA of the Act, as being the most reliable source of information in the circumstances of this case because the latter has provided information in respect of specific questions regarding the applicant and as set out in this decision above.
To conclude on the question of the applicant’s claims regarding the USA, the Tribunal accepts as reliable and genuine, the report from the US Department of Homeland Security Foreign Liaison Office, and that the applicant does not have a right to re-enter and reside in the United States, that the applicant has had his claims that he has a well founded fear of persecution in respect of Guinea refused by the relevant assessing authority in the USA. Furthermore, the Tribunals finds the applicant’s evidence in respect of his claims relating to his visa status in the United States to be inconsistent and discredited and adding further unreliability to his claims and evidence.
[21] CB 239-241
The applicant has essentially two complaints about the process followed by the Tribunal and its reasons. The applicant’s first complaint is that the information provided by the American authorities, while apparently correctly reciting his own claims for protection in that country and the outcome, did not deal with his former wife’s claim for protection which he asserts was successful, and his asserted right to live in the United States as a member of her family unit.
The applicant is also concerned that the American authorities did not specifically advise whether documents presented by him to the Tribunal to verify his assertions were not genuine. The Tribunal reasoned that the documents about which it sought advice were probably not genuine because the American response left no room for a find that they were genuine. However, it is important to bear in mind that the Tribunal’s conclusion at [123][22] does not in terms relate to every document presented by the applicant. The Tribunal recorded that there was no room to interpret certain documents provided by him as being genuine.
[22] CB 239
The applicant asserted before me today that the refugee travel document reproduced on page 131 of the court book is undoubtedly genuine. That is possible, and it may have been granted during the course of consideration of the applicant’s own claim for protection in the United States. However, the Tribunal was unable to verify the applicant’s assertion that he had a 10-year right of residence which apparently expired at the end of last year. If the Tribunal had been able to verify that asserted right, it would have had to consider whether the applicant was owed no obligation or duty of protection by Australia because of that right.
The conclusions reached by the Tribunal obviated the need to consider that issue. The Tribunal comprehensively rejected the applicant’s claims for protection in relation to Guinea. I see no error with the Tribunal’s approach. I do not rule out the possibility that, as the applicant asserts, there was some injustice done to him in the course of his various claims and proceedings in the USA. However, that mere possibility does not support a conclusion that the Tribunal fell into jurisdictional error in attempting to get to the bottom of the situation.
The Tribunal made the inquiries that the applicant invited it to, and obtained information which made it open for the Tribunal to reach an adverse conclusion on the applicant’s assertions concerning his American residence status. In those circumstances, I am persuaded that the Minister’s submissions on the issues raised by the Court are correct.
The first issue is whether the Tribunal erred by failing to make inquiries about the applicant’s wife’s immigration status in the USA. The applicant had claimed that he had been granted asylum for 10 years from 2002-2012 in the USA as a member of his wife’s family unit[23]. The Tribunal made inquiries of the USA authorities and was informed that the applicant had been denied asylum in 2001 and an appeal dismissed in 2003[24]. The Tribunal accepted this advice, and found the applicant’s documentation allegedly granting him asylum was not genuine[25].
[23] CB 221 [52], 229 [77]
[24] CB 225 [71]
[25] CB 239 [123]
An obvious inquiry about a critical fact, the existence of which is easily ascertained, may possibly give rise to a duty to inquire[26]. However it has been repeatedly stressed that the circumstances in which such a duty can arise are rare and exceptional[27]. In this case, the Tribunal’s inquiries indicated that the applicant’s claims concerning his grant of asylum in the USA were untrue. There was no occasion for the Tribunal to make further inquiries, especially as the inquiries it had made did not suggest that the applicant had a wife who had been granted asylum in the USA. This issue would have been speculation at best, and so hardly a “critical fact”. Accordingly no duty to inquire arose.
[26] Minister for Immigration v SZIAI (2009) 259 ALR 429 (HCA) at [25]
[27] eg Minister for Immigration v MZYCE (2010) 116 ALD 156 (FCA/Gray J) at [35-38]; SZNWF v Minister for Immigration [2010] FCA 1041 (Nicholas J) at [35-38]; SZOER v Minister for Immigration [2010] FCA 1100 (Cowdroy J) at [68]
The second issue is whether the Tribunal erred at [123][28] by relying on information from the USA authorities that failed to address the question asked as to the authenticity of the documents provided by the applicant. The inquiries made by the Tribunal had asked whether the applicant’s documents were genuine, but this inquiry was not specifically answered by the USA authorities[29]. There may be a variety of reasons for this, but the information that the USA authorities did provide allowed the Tribunal to draw the inference at [123][30] that those documents were not genuine. There is no error of law in the Tribunal making a wrong finding of fact[31]. Accordingly no error is revealed by the Tribunal’s finding at [123][32].
[28] CB 239
[29] CB 226.2
[30] CB 239
[31] Waterford v Commonwealth (1987) 163 CLR 54 at 77; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303; Abebe v Commonwealth (1999) 197 CLR 510 at [137]
[32] CB 239
I will direct that the name of the first respondent be amended to “Minister for Immigration and Border Protection”.
I will order that the application is dismissed.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $6,646 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 23 October 2013
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