FEDERAL COURT OF AUSTRALIA

SZDZM v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 303

Migration Act 1958 (Cth) s 424A

SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 referred to

SZDZM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 2159 OF 2005

EDMONDS J

30 MARCH 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the costs of the first respondent.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Edmonds J:

Introduction

1                     This is an appeal from the Federal Magistrates Court (Nicholls FM) dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) to refuse to grant the appellant a protection visa.

Background

2                     The appellant is a citizen of Jordan who arrived in Australia with a business visa on 4 March 2000, and lodged an application with the Minister’s Department for a protection visa on 17 December 2003.  On 30 January 2004 a delegate of the Minister refused to grant the protection visa and, on 20 February 2004, the appellant applied for review of that decision.

3                     The appellant claimed to fear harm in Jordan because he had joined an organisation referred to as a ‘Liberation’ group (‘Hizb-ut Tahrir’) that was ‘political, religious and social’.  He claimed that the objective of the group was to ‘serve the Jordanian people, to assist in better discipline and to make the laws of the Holy Koran apply to all’.  The appellant claimed to have been involved with the group for 30 to 40 days in 1997 and to have distributed papers and booklets for the group, and also to have attended group meetings.  He claimed that the group and its activities were prohibited by the Jordanian government and that he feared that if he returned to Jordan he would be harmed because he was ‘known’ to them.  He claimed that some of his friends were caught by the authorities and that family members had strongly advised him not to return.

The Tribunal’s Decision

4                     The Tribunal’s decision was based on findings about the appellant’s credibility.  The Tribunal found that the appellant’s major reason for coming to Australia was to set up a business venture and when that failed, his aim was to continue his residence in Australia in order to pursue his business opportunities, for which he applied for further visas.  When, according to his evidence, his appeal against his visa refusal was unsuccessful in 2002, he still did not apply for a protection visa for at least a further year.  Based on the appellant’s evidence at the hearing, the Tribunal found that he had invented an involvement with Hizb-ut Tahrir to support his claim for residence in Australia.

5                     The appellant was ‘extremely ill-informed’ about the organisation, even if his involvement with it had been brief.  The appellant’s description of Hizb-ut Tahrir’s aims as outlined in the pamphlets he claimed to have been distributing bore no relation to the stated aims of the organisation.

6                     The Tribunal also rejected the appellant’s claim that Intelligence had searched his home and asked about him in August 2000.  The Tribunal rationalised this rejection by saying that if this had occurred, and the appellant had been concerned about it as he claimed, it was not plausible that he did not apply for a protection visa until December 2003.  Even if the appellant had been pursuing another visa until a final rejection on appeal in 2002, at least 12 months elapsed before he lodged a protection visa application.  The Tribunal found that this was not the behaviour of a person who fears persecution by his country’s intelligence service.

7                     The Tribunal observed that the appellant  did not claim to have been persecuted in the past, but that the Tribunal was required to consider whether there is a real chance that he will be persecuted if he returns to Jordan in the foreseeable future.  Given the Tribunal’s rejection of the appellant’s claims that he was ever involved with Hizb-ut Tahrir, or that he was ever sought by the authorities, the Tribunal was not satisfied that there was a real chance that the authorities would take an adverse interest in the appellant if he returns to Jordan.  It was therefore not satisfied that the appellant had a well-founded fear of Convention-based persecution in Jordan.

The Court below

8                     Before the Federal Magistrates Court, the appellant raised some seven complaints going to the Tribunal’s hearing of the appellant’s application for review.

9                     First, the appellant complained that the Tribunal asked him who founded the organisation of which he claimed to be a member and the appellant asserted that he responded with the correct name.  He claimed that in these circumstances, the Tribunal was in error when it stated ‘he gave a name which did not appear to be that of the founder’.  The Federal Magistrate held that the Tribunal did not say that the appellant was categorically wrong, and even if one accepts that there was some misunderstanding as to the appellant’s answer in relation to the question as to the founder of the organisation, the Tribunal clearly did not rely on this answer in making its finding that the appellant lacked credibility.  This complaint was therefore rejected.

10                  Second, the appellant complained that when he was asked the name of the book written by the current leader of the ‘Liberation’ group, the Tribunal made an adverse finding against him because he could not answer that question.  The appellant stated in his Amended Application that the book which the Tribunal’s information states is written by this current leader was in fact only ‘co-authored’ by him.  Nevertheless, the appellant was unable to put a name to the book.  In those circumstances, the court concluded that even if the leader had only been a co-author or contributing author to this book, the appellant’s complaint now that the leader was only a contributing author does not provide an explanation for his inability to provide the name of the book to the Tribunal, particularly in circumstances where the appellant now claims the leader was the primary contributor.

11                  Third, the appellant complained that the Tribunal asked a question about his business visa and then stated this issue was not relevant.  The court below held that this allegation was not supported by any evidence to contradict the Tribunal’s account of what occurred at the hearing.  In the words of the Federal Magistrate:

‘The Tribunal found that in all the circumstances, particularly as the applicant at the hearing before it appeared to be lacking credibility in other respects, that the major reason for the applicant coming to Australia was to set up a business venture.  It found that when he failed in this regard his aim was to continue his residence in Australia and to pursue business opportunities.  In reaching this conclusion it partially relied on the finding that the applicant did not apply for a protection visa for at least a year after his appeal against his business visa refusal was unsuccessful in 2002.  This finding was clearly open to the Tribunal on the material before it and no error can be discerned.’

12                  Fourth, the appellant complained in the originating application to the court below, and repeated at the hearing, that the Tribunal relied on information which was not shown to him before the hearing to enable him to ‘answer any question being directed to me’.  In the court below, the appellant was unable to provide any particularity or specificity in relation to what information he claimed was relied on by the Tribunal and was not shown to him, other than a reference to all the material at pp 63 – 83 of the Court Book.  In any event, the Federal Magistrate held that the information appearing in the Tribunal’s decision record at 58.9 – 59.8 of the Court Book, is all information that would fall within the exemption provided for in s 424A(3) of the Migration Act 1958 (Cth)(‘the Act’).  It was therefore not necessary to put such information to the appellant pursuant to s 424A(1): Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92. 

13                  Fifth, the appellant complained that at the hearing that the Tribunal did not give him any ‘proof to convince’ him that the Tribunal was right or to ‘prove’ that he was wrong.  The court below observed that it was clear that the Tribunal had no obligation to provide ‘proof’ to convince him that the Tribunal was right in its findings, nor does the Tribunal need to convince him that he was wrong.  The Federal Magistrate concluded (at [7](5)):

‘The Tribunal’s obligation is to look at the claims as put by the applicant, properly consider those claims and the matters arising from those claims, to make findings of fact, including where relevant, findings on credibility, and either reach or not reach the requisite level of satisfaction that the applicant meets the definition of refugee as set out in Article 1A(2) of the Refugees Convention.’

14                  I would interpose that I entirely agree with the Federal Magistrate’s conclusion.

15                  Sixth, the appellant’s complaint at the hearing as to the competence of the Tribunal and the capacity of the Tribunal to make the decision in his case could not, in the court’s view, be sustained merely by an inference, as the appellant suggested, based on analysing the Tribunal’s conclusions. 

16                  Again, I agree.

17                  Seventh, the appellant complained that the Tribunal was mistaken to say that he was not genuine in his claims.  Insofar as this constituted a separate claim, the Federal Magistrate held that it did not, in the absence of any particularity, rise above a request for impermissible merits review: Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259.

18                  In the circumstances, the court below concluded that it could see no error, let alone jurisdictional error in the Tribunal’s decision.  This conclusion was expressed in the following terms (at [8]):

‘The Tribunal had before it the applicant’s claims and these were fully considered.  The Tribunal did not believe what the applicant said in critical respects at the hearing before it.  Findings of fact, including findings on credibility, are of course for the Tribunal as the decision maker “par excellance”: Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham[2000] HCA 1.  The applicant has not brought any evidence before the Court to dispute or to challenge the Tribunal’s account of what occurred at the hearing before it.  Nor does the applicant’s purported transcript assist in his complaints now.  In any event the Tribunal’s findings were open to it on the material before it, and the Tribunal gave reasons for its findings and decision.  This application is dismissed.’

The Appeal to this court

19                  The appellant’s notice of appeal does not, nor can I, identify any error in the reasons of the court below; instead it complains about the Tribunal’s factual findings.  Such an approach to the conduct of the appeal is unacceptable.  In Sathiyanathan v Minister for Immigration & Multicultural & Indigenous Affairs [2000] FCAFC 210 at [10] the Court emphasised that ‘an appeal to the Full Court in a refugee matter should not be taken as an occasion to re-consider the Tribunal’s reasons as distinct from considering the primary judge’s reasons’. 

20                  The appellant failed before the Tribunal because the Tribunal found he was not credible and had fabricated his claims of involvement with the Hizb-ut Tahrir.  So long as the Tribunal’s credibility findings were open to it, no error is demonstrated: W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 at [64] – [69] per Tamberlin and R D Nicholson JJ.  The Tribunal’s conclusions were open for the reasons it gave.  The Court cannot review the merits of the Tribunal’s decision: Wu Shan Liang at 272.  There is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137].

21                  Finally, because the appellant was unrepresented on the appeal, counsel for the first respondent informed me that the first respondent had considered whether any breach of s 424A(1) of the Act can be said to arise following the decision in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2.  In that regard, counsel submitted that while the Tribunal’s knowledge of the date of the appellant’s application for the protection visa (December 2003) and the appellant’s travel to Australia on a business visa in March 2000 may have derived initially from the protection visa application, this did not mean that s 424A was engaged by those parts of the protection visa application in this case.  He submitted that the Tribunal’s account of the hearing and the Tribunal’s reasons indicate that the Tribunal was relying upon what the appellant said at the hearing about his travel to Australia in 2000 and subsequent activities until lodging his protection visa application in December 2003 as the relevant ‘part of the reason’ for its decision.  He further submitted that on a fair reading the reason for the Tribunal’s decision on this issue was based solely on information the appellant gave at the hearing, which falls within s 424A(3)(b).  I accept these submissions.  Accordingly, there was no breach of s 424A(1) of the Act. 

22                  The appeal must be dismissed with costs.

Associate:

Dated:              30 March 2006