FEDERAL COURT OF AUSTRALIA

SXRB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1222

MIGRATION – application for judicial review of decision of the Refugee Review Tribunal (RRT) – whether applicant denied procedural fairness – whether RRT failed to have regard to integer of applicant’s claim – where member of RRT charged with considering the application changed – whether change of member amounted to procedural unfairness – whether applicant aware of certain documents considered by the RRT that contained statements inconsistent with claims made in application for Protection visa.

Migration Act 1958 (Cth), s 420(1), 422, 424A

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 cited

SXRB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ORS

SAD 272 of 2004

LANDER J

2 SEPTEMBER 2005

ADELAIDE

THE COURT ORDERS THAT:

1.         The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for judicial review of a decision of the Refugee Review Tribunal (RRT) given on 9 November 2004 and published to the applicant on 1 December 2004.

2                     The applicant is a citizen of Sudan.  He arrived in Australia in October 2003 entering Australia on a Business (Short Stay) visa.

3                     On 7 November 2003 he applied for a Protection (Class XA) visa.  On 12 December 2003 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused that application.  On 6 January 2004 the applicant applied to the Refugee Review Tribunal (RRT) for a review of that decision.  On 9 November 2004 the RRT affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa.  That decision was published to the applicant on 1 December 2004.  It is in respect of that decision which the applicant has sought judicial review.

4                     The applicant applied for a Business (Short Stay) visa before entering Australia in October 2003.  That visa was granted.

5                     In that application, which was dated 14 August 2003, the applicant claimed to be a student.  That claim was supported by a letter from the Registrar of the Faculty of Medicine and Health Sciences at the University of Kordofan in El Obeid dated 15 August 2003 stating that he was a medical student at that University.

6                     On receipt of his application for that visa the Australian Embassy in Cairo telephoned the applicant who confirmed at that time that he was a fifth year student at the University of Kordofan.  That statement was supported by the Deputy Registrar of the Faculty of Medicine and Health Sciences at that University who also contacted the Australian Embassy in Cairo to support the applicant’s application.  His application for that visa was supported by the Sudanese Embassy in Cairo.

7                     As a result of those representations, the applicant was granted a Business (Short Stay) visa for travel to Australia to attend a conference ‘The Network: Towards Unity for Health’, which was held in Australia between 11 October and 15 October 2003.  He travelled to Australia with 28 other students from Sudan.

8                     Whilst in Australia, as I have already mentioned, the applicant applied for a protection visa.

9                     In support of his protection visa he said in his initial application that he had undertaken his schooling in Sudan and had been accepted by Gezira University in February 1996, after completing his compulsory 45 days in the Sudanese Popular Defence Service.  However, in 1997 the Sudanese Government closed all universities so that the university students could join the armed forces.

10                  However, his brothers had found him a scholarship to study in a university in Syria for two years.  He said at the expiration of those two years he returned to Sudan where he was arrested because he had evaded military service.  He said he was taken to the security force’s headquarters at Hay El Matar where he had been insulted, kicked and slapped.  He was released after four days but was obliged to undertake national service for a year.

11                  He said that he undertook that national service at the Sudan University where he graduated with a BSc in ‘Medical Laboratories’ in 2003.

12                  He claimed that he had worked as a laboratory technician in the police hospital from September 1999 to September 2000 and at the Academy Charitable Hospital from September 2000 to September 2003.  He also claimed that he had a part-time job with the ‘Commission for the National Recruitment Camps’.

13                  He said that he had been dismissed from that job in May 2003 when, as a result of part of his duties, he had found that three persons were not fit for military service.

14                  In his application he said that the security forces had told him that he had arrived at the wrong result and had detained him for three days during which he was beaten, tortured and insulted.

15                  He was either detained for 23 or 29 days.  He gave a conflicting account at the time.

16                  He said that during his detention his teeth had been broken and one of his ribs had also been broken.  His left leg had been injured.

17                  He said that after his release his brother assisted him in obtaining a passport to attend the conference in Australia.

18                  The application for the visitor’s visa and the application for the protection visa relied on starkly different facts.

19                  For the first, the applicant was a person of no interest to the government who was a fifth year medical student seeking to come to Australia to attend a conference which would have been of interest to medical students.

20                  In relation to the second application for the protection visa, the applicant had never been a medical student and was not a student at the time that he came to travel to Australia.

21                  For the purpose of that second application he claimed to be a victim of torture immediately before he left Sudan.

22                  The two accounts for the two different visas could not stand together.  They were irreconcilable.  In those circumstances, both could not be true.  Both could be false, or one could be true and the other false.

23                  The applicant’s travel document did not support a claim that he was a person of interest to the government.  He apparently obtained a visa and a passport although, on his account, it was because of the assistance of a doctor at the Academy Hospital and his brother.

24                  The RRT determined that the account, which supported the application for the visitor’s visa, was true and the account supporting the application for the protection visa was false.  It did so after considering various pieces of evidence which impacted on both accounts.

25                  Subject to two matters which I shall refer, it was open to the RRT to reach the conclusion that it did on the evidence available to it.  There were a number of factors which suggested that the account given in relation to the application for the protection visa was not true.  However, the applicant complained that the RRT fell into jurisdictional error for two reasons.

26                  First, it did not have regard to a report which was provided to it by a dentist, Dr Elad Addin H. Allah which was in the following terms:

‘This is to certify that [SXRB] came to this clinic on 3/6/2003 complaining of traumatic fracture of incisal third or upper right central incisor and ulceration of lips, [SXRB] received the primary treatment and appointed the further management.’

27                  It was said that that report had been provided to the RRT by the applicant’s Migration Agent but had been ignored in its findings.  Thus, it was contended, the RRT had failed to have regard to an integer of the applicant’s claim.

28                  Secondly, it was said that the RRT fell into error because, after the commencement of the RRT hearing and before it completed, the member of the RRT charged with considering this application changed.  The applicant gave oral evidence before the first Tribunal member, but not before the Tribunal member who made the ultimate decision.  That Tribunal member concluded (without hearing the applicant but only upon a reading of the applicant’s evidence) that the applicant had been untruthful in his claim for a protection visa.  It was said in those circumstances the Tribunal member who decided this application had proceeded unfairly to the applicant.

29                  The first matter can be dealt with quite quickly.

30                  There is no record on the RRT file that it ever received the dental report to which I have referred.  I accept the evidence of Rachel White in her affidavit read by the Minister that no facsimile was received by the Department from the applicant’s Migration Agent which contained that document.  However, the applicant read an affidavit of his Migration Agent, Mr Peter Steele who, on this application, said that he was fairly certain that he had sent the report to the RRT.  There is no record on his file of that having occurred.  He was cross-examined on his affidavit that the dental report was sent and was received but mislaid by the RRT and therefore not considered by it.

31                  Indeed, there is no copy of the document which Mr Steele said that he received from Sudan on his file.  Mr Steele was an unimpressive witness.  He did not answer questions directly.  His answers were argumentative.  Mr Steele’s file was subpoenaed.  He said in evidence that when he reviewed his file to answer the subpoena he destroyed some documents.  His reason for destroying subpoenaed documents was unconvincing.  I am not prepared to find that the document was ever sent to the RRT.  His oral evidence, in fact, does not support such a finding.  However, in case I am wrong about that, I will address the applicant’s argument on the basis that the dental report was sent and received but mislaid by the RRT and therefore not considered by it.

32                  The failure to consider a piece of evidence does not necessarily amount to a failure to consider an integer of an applicant’s claim for an entitlement to a visa.  Whether it will or not will depend upon whether it is the only or the overwhelming evidence relating to that integer.

33                  Any integer of any applicant’s claim may well be made up of various pieces of evidence; sometimes direct, sometimes circumstantial.  The failure to consider any one piece of evidence does not necessarily amount to a failure to consider the integer itself.  It will only mean a failure to consider the integer if that evidence, either by itself or coupled with other evidence whether direct or circumstantial, would have affected or might have affected the result of which the RRT arrived.  In my opinion, the dental report was equivocal.  It established shortly before the applicant left the Sudan that he had a traumatic fracture of an incisal third or upper right central incisor and ulceration of his lips.  By itself, it takes the applicant’s case nowhere.  Even coupled with the other evidence, including the applicant’s own evidence, it take his case nowhere.  There is nothing in this report to indicate how the traumatic fracture of the tooth came about or even how it might have come about.  There is nothing in the report to indicate that a beating could have occasioned the traumatic fracture.  In my opinion, the claim that the RRT failed to consider an integer of the applicant’s claim must be dismissed.

34                  Section 422 of the Migration Act 1958 (Cth) (the Act) provides:

‘(1)      If the member who constitutes the Tribunal for the purposes of a particular review:

(a)        stops being a member; or

(b)        for any reason, is not available for the purpose of the review at the place where the review is being conducted;

the Principal Member must direct another member to constitute the Tribunal for the purpose of finishing the review.

(2)       If a direction is given, the Tribunal as constituted in accordance with the direction is to continue to finish the review and may, for that purpose, have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

(3)       In exercising powers under this section, the Principal Member must have regard to the objective set out in subsection 420(1).’

35                  In this case, the member, who previously constituted the Tribunal and who heard the applicant’s evidence, stopped being a member of the Tribunal.  In those circumstances and in accordance with s 422 of the Act, the Principal Member directed the member who ultimately gave the decision to finish the review.  Section 422(2) contemplates that the second member may have regard to any record of the proceedings for the purpose of arriving at that member’s decision.

36                  The Principal Member, in exercising his or her decision to appoint a second member to finish a review conducted by a previous member, must have regard to the functions of the Act and a mechanism of review which is ‘fair, just, economical, informal and quick’: s 420(1).

37                  In this case, it was argued by the applicant that the exercise of the power by the Principal Member to appoint a second member after the previous member had heard the applicant’s evidence meant that, contrary to s 420(1), the review was not fair or just.

38                  In this case, as was pointed out by the second member, the applicant had given two irreconcilable accounts.  The previous member had heard his evidence and explanations in relation to those differences.  In particular, she had closely questioned the applicant in relation to those differences.  Thus it is she had a significant advantage in observing the applicant when closely questioned about the differences in the applicant’s accounts.  However, there can be no doubt that the second member closely read that evidence.  Shortly after assuming the conduct of the inquiry, the second member wrote to the applicant under s 424A bringing to the applicant’s attention the evidence which the applicant had given in answer to the previous member’s question and seeking further explanation.

39                  The applicant has not demonstrated that he was accorded procedural unfairness by the second member considering the written evidence and making a decision upon it.  Section 422(2) specifically contemplates the procedure which was adopted by the second member.  In those circumstances, it cannot be said, in my opinion, that the applicant was denied procedural fairness.

40                  During the hearing of this application I raised with the applicant whether there were documents considered by the RRT to which the applicant had not been either provided copies or alerted.  The matter was adjourned to allow the applicant to consider that matter.

41                  Shortly before the resumption of the hearing of the matter, the applicant affirmed a further affidavit in which he claimed that certain material was in the possession of the RRT and was considered by it of which he was not given notice.

42                  First, he said, the RRT had regard to the original application for a Business (Short Stay) visa, which, in his further affidavit, he said, was filled out and signed by his brother.  He said that he had never seen the document until he examined a copy of it on 10 August 2005.

43                  Next, he said, the RRT had regard to a Form 956 ‘Authorisation of Person to Act and Receive Communication’ which was also completed and signed by his brother.  He had also not seen this document until 10 August 2005.

44                  A third document, which he said was considered by the RRT, was a letter from the Faculty of Medicine and Health Sciences at Kordofan University in Elobeid dated 15 August 2003.  He said that letter was organised by his brother and he had not seen a copy of that letter, again, until 10 August 2005.

45                  The Sudanese Embassy in Cairo sent letters to the Australian Embassy in Cairo dated, respectively, 23 August 2003 and 7 September 2003.  Those letters were considered by the RRT on the applicant’s application for review.  He said he was not provided with a copy of those letters at that time and had no means of obtaining a copy, except from the RRT.  Those documents were also not seen until 10 August 2005.

46                  Lastly, he referred to a file note of the Department of Immigration, Multicultural and Indigenous Affairs in relation to him entitled, ‘TEMP BUSINESS ENTRANT’ which described the applicant as ‘a 5^th year student, Kordofan uni. will fully support his trip. … pa is a student at the faculty of Medicine & Health Sciences, Kordofan uni. …’

47                  He said that he had not seen that document until 10 August 2005.

48                  In paragraph 8 of his later affidavit he says what he would have done had he been given the documents.  He said:

‘8.        If the Tribunal had provided me with copies of exhibits “A” to “F” inclusive, I would have taken the following steps:

8.1       I would have obtained a statement or statutory declaration from my brother, [MGMES], to the effect that he was the person who had organised the false documents concerning the false statement that I had been a student in the Faculty of Medicine and Health Sciences at Kordofan University.

8.2       I would have requested to have given additional oral evidence to the Tribunal to the effect that this is what had occurred and that I had never been a student in the Faculty of Medicine and Health Sciences at Kordofan University and I had only ever studied at the Sudan University of Khartoum from August 2000 to April 2003.  I would have also have given a comprehensive and truthful explanation concerning my occupation and the fact that it was my brother’s view that if my occupation had not been falsely stated as being a student that I would not have been able to obtain a visa to come to Australia.

8.3       I would have organised a statement or a statutory declaration from a relevant official from the Faculty of Medicine and Health Sciences at Kordofan University stating that I had never studied there.  I would have also organised a statement or a statutory declaration from the Sudan University of Khartoum stating to the effect that I had studied there part-time from August 2000 to April 2003.

8.4       I would have made further written submissions to the Tribunal to the effect that I had never been a student at Kordofan University and provided the Tribunal with any other relevant documents to this effect.

8.5       I would have requested the opportunity to have given additional oral evidence to the Tribunal or presented the Tribunal with a statutory declaration to the effect that I had never signed the visa application (exhibit “A”) or the Form 956 (exhibit “B”).  I would also have organised a handwriting expert to examine the handwritten names on these documents that purport to be my signatures and to give evidence to the Tribunal that the purported signatures were not mine.’

49                  The applicant argued that he was not given the benefit of the material to which I have referred and therefore he was denied procedural fairness: Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 (‘Muin’ and ‘Lie’).

50                  There can be no doubt that the documents which the applicant has referred were in the possession of the RRT at the time of its consideration of his application for a review.  On 24 August 2004 the RRT wrote to the applicant in accordance with its obligations under s 424A of the Act.

51                  After referring to that section, it wrote:

‘The information is as follows.  First, in your application for the visa on which you travelled to Australia which you signed on 14 August 2003 you gave your current occupation as “student”.  Your application was supported by a letter from the Registrar of the Faculty of Medicine and Health Sciences at the University of Kordofan in El Obeid dated 15 August 2003 stating that you were a medical student at that university.  The Australian Embassy in Cairo telephoned you and you confirmed that you were a fifth year student at the University of Kordofan.  The Deputy Registrar of the Faculty also contacted the Australian Embassy to support your application.  In your application for a protection visa, however, you said that you had studied at Sudan University in Khartoum from August 2000 to April 2003 and that you had been employed as a laboratory technician at the Academy Charitable Hospital from September 2000 to September 2003.  You have since produced to the Tribunal what purports to be a letter dated 25 April 2004 from the Director of the Academy Charity Teaching Hospital in Khartoum stating that you “joined the laboratory department in September 2001 to September 2003’.  Curiously, despite the fact that the [sic] you had not worked for the hospital for over six months at the date of the letter, it states that you are “a valuable member of this department”.  At the hearing before the Tribunal on 18 May 2004 you said that it would have been impossible for you to leave Sudan under your profession and that the only way you had been able to leave Sudan had been by saying that you were a student.  You said that your brother had got the document indicating that you were a student at another university.  However this does not explain why the Deputy Registrar of the Faculty of Medicine at Kordofan University would have contacted the Australian Embassy to support your application.  The information contained in your application for the visa on which you travelled to Australia is relevant because it casts doubt on whether you are telling the truth in your application for a protection visa.

Secondly, your application for the visa on which you travelled to Australia was also supported by the Sudanese Embassy in Cairo both through direct representations which the Sudanese Ambassador to Egypt made to the Australian Ambassador and through a letter dated 23 August 2003 requesting that visas be issued to the Sudanese participants in the international conference which you came to Australia to attend.  In your application for a protection visa and at the hearing before the Tribunal on 18 May 2004, however, you have claimed that you were detained for four days after you returned from Syria in August 1999, that around the beginning of May 2003 you were detained for three days and dismissed from your part-time job with “the Commission for the National Recruitment Camps” because you refused to find three persons fit for military service and that on 6 May 2003 you were arrested by “the Security”, detained for 23 days and forced to sign a confession that the results of your laboratory tests were wrong and that the three persons were fit for military service.  In your statutory declaration dated 28 April 2004 you claimed that your brother [M] who worked at the airport in Khartoum had had a friend remove your name from the black-list at the airport.

The fact that your application for a visa to travel to Australia was supported by the Sudanese Embassy in Cairo is relevant because it casts doubt on your claims that you were detained in 1999 and again on two occasions in 2003 as a result of your failure to undertake national service and the incident relating to the laboratory tests and that your name was on the black-list at the airport until your brother was able to have it removed.  The fact that the Sudanese Government, through its Embassy in Cairo, was prepared to support your application to attend an international conference in Australia suggests that you were not regarded as an opponent of the Government and that the claims you have made in support of your application for a protection visa are a fabrication.

…

Fourthly, in the statement accompanying your original application you said that your brother [M] who worked at the airport had been able through one of his friends to check the list of those people who were prohibited from leaving Sudan.  You said that you had been lucky that your name had not been listed yet so you had obtained an exit visa.  In your statutory declaration dated 28 April 2004, however, you claimed that your brother had had a friend remove your name from the black-list at the airport.  At the hearing before the Tribunal on 18 May 2004 your representative claimed, apparently on your instructions, that you had not been granted an exit visa.  These inconsistencies in your evidence are once again relevant because they cast doubt on whether you are telling the truth in the claims you have made in support of your application for a protection visa.’

52                  The applicant was made aware that the RRT had in its possession the application for the visa on which he travelled to Australia.  He was also made aware that it had a letter from the Registrar of the Faculty of Medicine and Health Sciences at the University of Kordofan in Elobeid dated 15 August 2003 which stated that he was a medical student at that university.  He was also told that the Australian Embassy in Cairo telephoned the applicant who confirmed that he was a 5^th year student at the University of Kordofan.  He was also told that the RRT was aware that the Deputy Registrar of the Faculty also contacted the Australian Embassy to support the applicant’s application.  The applicant was also made aware that the RRT had in its possession correspondence from the Sudanese Embassy in Cairo, including the letter of 23 August 2003.

53                  The documents to which the applicant has referred in his affidavit, and to which the RRT referred in the s 424A correspondence, were apparently documents which had been created either by or on behalf of the applicant.

54                  The RRT could, at the time it wrote the letter of 24 August 2003, reasonably understand that the applicant was fully aware of the contents of those documents.

55                  The RRT had the transcript of the proceedings before it when these matters were raised with the applicant.  At that hearing, the RRT addressed the inconsistencies between the information provided in support of the Business (Short Stay) visa and the application for the Protection visa.

56                  I have read the transcript of the hearing before the RRT.  The RRT spent some little time examining the applicant’s case as it was put in support of the application for a Protection visa.  After that case was examined in detail, the RRT said:

‘TM     OK now I, I’m you said that you’d then organised with the help of some friends to come to a medical conference here in Sydney and I’ve looked at your application for the visa to come to Sydney and it says that you are a student?  Why is that?  Why does it not give your proper occupation?

A         It was impossible for me to leave Sudan under my profession that I had to sort of what do you call, sort of go inside this delegation in order to be able to leave Sudan and the only way I could do that is by saying I’m a student.

TM      Are you saying that this was the case because of your your problem with the security forces or is this because there is some kind of ban on professionals leaving because their skills are needed in Sudan?

A         It was because of my problems with the security forces.

TM      So what difference did it make saying you were a student?  Why would that make a difference?

A         It’s a very big difference.  It’s basically if I had issued a passport with my details as they were it would have been impossible for me to leave but then they had made it much easier for student to belong to this delegation than any other people.

TM      So what is more to do with getting on the delegation than actually trying to disguise your identity?

A         In order to be in that delegation and leave I had to hide my …’

57                  The applicant was aware that the RRT had the first document to which he has referred in his affidavit, being the application in support of the Business (Short Stay) visa.  In answer to the RRT’s question, the applicant did not claim that that document had been created by his brother and signed by his brother.  His answer shows he was quite aware of the contents of that document and he sought to explain why the document represented what it did by saying that it was otherwise impossible for him to leave Sudan.  His answer, if it were true, suggests that the applicant was aware of the falsity of the claims in the application.  His answer does not suggest that he was unaware of the contents of the document or that someone apart from him had created the document.

58                  The hearing continued:

‘TM     OK now, I’m a little bit surprised if you were in so much grave danger how you were able to keep working in this important job without any further problems I mean I don’t quite see why you were in such grave danger that you had to flee but, no let me rephrase that.  I have difficulty understanding why you were left alone after returning to the hospital if you were in such serious continuing danger as your brother suggests.

            And I also find it a little strange that your application and the application of everybody on the delegation that came to Australia received letters of support from the Sudanese embassy in Sudan now if you were of such interest to the authorities it’s a bit strange that they would also be supporting your application to come to Australia.

I           Ah, from where?

TM      Ah it’s the embassy in Cairo …

A         What he’s saying is the system in Sudan is very chaotic.  It is and it’s a lot of corruption and in order to leave Sudan I had to do things from within the system and this is where my brother played a big big role and I mean he said I already said that I studied in University of Sudan and I graduated from there but in order to leave Sudan I have to say that I’m still student.’

59                  The applicant was made aware that the RRT had documentation which showed that the Sudanese Embassy in Cairo had supported his application.   The applicant’s answer does not suggest that he was unaware of the contents of the documents.  He sought to explain the contents of the documents for other reasons.

60                  The hearing of the RRT continued:

‘TM     So is there anything else that you didn’t put in your initial statement that your brother has subsequently told you that you’d like to tell me now?

A         Until recently.  It was only recently that I learned that I was able to get out of Sudan through another university and through another document that my brother got me it was only recently that I learnt that and you can check if you want.

TM      Yes I noticed that your member of support comes from the [inaudible] university which is not the university that you say you’ve attended.  I have to tell you that.  Sorry?

I           Sorry, my mistake he said I graduated from the Sudan University not Al Gezira University.’

61                  That exchange also indicates that the applicant was made aware of the support from the University of Kordofan, although the particular university is not identified.  However, it is clear that the applicant was made aware that there was evidence in writing from a university which he said he did not attend which supported his application for the Business (Short Stay) visa.  Again, the applicant did not indicate by his answer that he was unaware of the contents of that document.  He merely said he did not attend that university.

62                  When the RRT wrote its s 424A letter on 24 August 2004, it had no reason to think that the applicant did not have copies or access to the documents to which reference had been made at the hearing, or that the applicant’s case was that those documents had been created by his brother and contained false information included by his brother.

63                  The applicant was always aware after the hearing in the RRT and by reason of the contents of the s 424A letter of 24 August 2004 that the documents existed and contained statements radically inconsistent with the claims made in support of the Protection visa.

64                  This is not a case where the RRT considered information which was unknown to the applicant.  This is not a case of the kind referred to in Muin or Lie.

65                  In my opinion, the RRT complied with its statutory obligations in s 424A of the Act and it complied with its common law obligations to accord the applicant procedural fairness in proceedings before it.

66                  For those reasons, the application must be dismissed.

Associate:

Dated:              2 September 2005