FEDERAL COURT OF AUSTRALIA

SZNNN v Minister for Immigration and Citizenship [2009] FCA 1371

 MIGRATION – Tribunal found applicant’s account of circumstances leading to fear of persecution implausible, based in part on similarities between applicant’s account and her sister’s account – Applicant claimed Tribunal exaggerated and misrepresented her evidence – Tribunal’s decision was neither affected by reasonably apprehended bias nor was it irrational

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294

SZNNN v Minister for Immigration [2009] FMCA 876

Minister for Immigration and Citizenship v MZXPA [2008] FCA 185

Re Refugee Review Tribunal; Ex parte H (2001)179 ALR 425

NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235

SZLUD v Minister for Immigration and Citizenship [2009] FCA 549

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12

SZNNN v MINISTER FOR IMMIGRATION AND CITIZENSHIP

NSD 1069 of 2009

KENNY J

11 DECEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of the appeal (to be taxed in default of agreement).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an appeal from a judgment of the Federal Magistrates Court delivered on 7 September 2009, dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  At the hearing of the appeal, the Tribunal was added as a respondent:  see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 324-325 [91].  I would dismiss the appeal for the reasons that follow.

2                     Before detailing these reasons, however, I note by way of background that the Tribunal found that the appellant was a Ugandan national, who arrived in Australia on 6 July 2008 and lodged an application with the first respondent’s Department for a protection visa on 15 August 2008.  Essentially, the appellant claimed refugee status on the basis that she would be harmed in Uganda because the Ugandan authorities claimed that she collaborated with a rebel group called the People’s Redemption Army (‘PRA’).  On 12 November 2008, a delegate of the first respondent refused her application.

3                     On 19 December 2008, the appellant applied to the Tribunal for a review of the delegate’s decision.  The Tribunal affirmed the delegate’s decision on 23 March 2009.  The appellant filed an application for judicial review in the Federal Magistrates Court, which was heard on 20 August 2009 and dismissed on 7 September 2009.

APPELLANT’S CLAIMS AND EVIDENCE

4                     In its reasons, the Tribunal described the appellant’s claims and evidence, as they appeared from the Department’s file and as stated before the Tribunal.  In summary the appellant made the following claims:

·                    From 2000 until September 2007, she lived and worked in Kasese with her uncle, a strong supporter of the Forum for Democratic Change (‘FDC’).  Her uncle campaigned for the FDC in the 2001 and 2006 presidential elections.  The appellant stated that the FDC “is an opposition party that really fights for change and causes great concern to the government”; that the party’s slogan is “Change”; and its emblem is a hammer.  She identified the party’s leader.

·                    The appellant distributed flyers, t-shirts and posters for the FDC during the 2006 electoral campaign.  About one week before the election, the police and military intelligence officers arrested her and her uncle and accused them of collaborating with the PRA.  The officers detained and tortured the appellant and her uncle.  Two men raped the appellant in front of her uncle.

·                    The appellant was released after one week.  She went to her mother’s home in Fort Portal and stayed there for about two and a half months before returning to Kasese. 

·                    On 14 September 2007, her uncle escaped detention.  Thereafter, government security agents repeatedly came to the appellant’s residence in Kasese.  On 25 September 2007, she was arrested and taken into custody.  She was accused of helping her uncle escape, tortured and interrogated for two weeks.  After two weeks, new guards arrived.  Among these was one guard who “seemed a bit more human than the others”.  This guard released her at night and gave her directions to Fort Portal in exchange for her ATM card, which she had managed to keep with her.  She reached Hema after walking all night and stayed with someone she knew.  She then took a motorcycle taxi to Kivito and rented student accommodation for seven days before arriving at her mother’s house in Fort Portal on 18 October 2007.

·                    The appellant stayed in Fort Portal for some time, hiding at various residences.  She then went to her grandmother’s home in Kijule.  After government security agents found out where she was living, her aunt arranged for her to leave the country and attend World Youth Day 2008 in Australia.  The appellant fears that she will be arrested, detained and killed if she returns to Uganda.

5                     The Tribunal asked the appellant several questions regarding certain aspects of her claims.  Thus, the Tribunal asked the appellant why, after she had gone to her mother’s house following her initial release from detention, she returned to Kasese, where she was in danger.  The appellant stated that she returned because she needed to work.  Regarding her claim that she travelled to her mother’s house in Fort Portal following her escape from detention in 2007, the Tribunal asked the appellant why she did not first contact her mother to make sure that the authorities had not been looking for her at her mother’s house.  The appellant stated that the authorities thought she was in Kasese, and that neither her mother nor any of her other relatives had been questioned by the authorities. The Tribunal asked the appellant why she believed she was still of interest to the authorities despite the fact that they had not looked for her in such obvious places as the homes of close relatives.  The appellant stated that the authorities would not have arrested her a second time if she was not of interest, and that they “work underground and take their time” and “have their own special way of doing things”.  She also stated that the authorities were looking for her in Kasese or Fort Portal.

6                     The Tribunal questioned the appellant about her familiarity with the FDC.  It asked her if the words “one Uganda, one people” were familiar.  She said it was the slogan of the FDC.  When the Tribunal asked the appellant why she had not mentioned the phrase earlier, she stated that “Change” was the FDC’s main slogan, but the slogan was changed from time to time.  The Tribunal indicated that the emblem of the FDC consisted of a key, a Ugandan flag, a blue flag, and the initials FDC, not a hammer.  The appellant stated that Kasese was a small village, and people printed their own t-shirts, posters and flyers using their own emblems.  She later stated that she was “not very deeply involved with the FDC”.

7                     The Tribunal also indicated to the appellant that it considered her claims “extremely similar” to those advanced by her sister in a separate Tribunal proceeding.  I interpolate here that the appellant’s sister also came to Australia in July 2008 and applied for a protection visa.  As summarised in the Tribunal’s reasons, the Tribunal said that both the appellant and her sister

claimed that they were living in remote towns; both were living with someone who supported the FDC and as a result was suspected [o]f supporting a militant guerrilla group; their associates were both detained and escaped; the sisters were then detained but released with the help of a guard; [and] they went into hiding at the home of different relatives, who arranged for them to travel to World Youth Day.

The appellant stated that she and her sister were “very unlucky and people in Uganda suffered like this all the time, you just had to be lucky to grab a chance”.

8                     On 20 February 2009, the Tribunal wrote to the appellant, inviting her to comment on aspects of her claims, specifically, the similarity between her account and that of her sister; her apparent lack of familiarity with the FDC despite her claim to have distributed FDC flyers, posters and t-shirts; the inconsistency between her return to Kasese following her release from detention in 2006 and her claimed fear of persecution; and the inconsistency between the lack of attention from the authorities following her claimed escape and her claimed fear of persecution.

9                     In a response received by the Tribunal on 16 March 2009, the appellant stated:

·                    In Uganda, it is not uncommon for entire families to belong to the same political party.  Her family was associated with the FDC.

·                    The majority of the Ugandan population is rural, and the government’s strategy is to “indoctrinate the Ugandan rural populations who have little access to information about governance and development”.  For this reason, “[t]he few from the rural areas who had the chance to go to school and live in the other parts of Uganda . . . and who are against the government are harshly silenced by the government machineries”.  The appellant and her sister are both from rural Uganda, and both were supporters of the FDC.  The letter stated that “we took a lead in the campaign and every political activity for the FDC in my village”.

·                    The FDC does not make an effort to inform its rural Ugandan supporters of its logo. Rather, information about the party is communicated through “a picture of the FDC president and the slogan of two fingers up”.  Even very active rural supporters of the FDC pay little attention to the symbol for the FDC.  Most rural supporters do not have membership cards or “written formal recommendations from the party on the party’s letter head”.  The FDC website to which the Tribunal referred at the hearing is directed to those outside Uganda.

·                    Arrests are common in Uganda “because of the circumstances surrounding political crimes in the country”.  People are often detained because their relatives have escaped from prison, particularly if the relatives are close. 

·                    It was “very easy to escape from the detention of the captors simply because arrests are arbitrary – no records are maintained, the officials can easily be corrupted”.  Escapees who are re-arrested are killed to cover up the fact that their captors accepted bribes to aid their escape. 

·                    The appellant knew it was very risky to return to Kasese after her first arrest but returned knowingly.  She and her family “took it for granted” that “the situation [would] normalize”, and she needed to raise money to pay for medical expenses and subsistence. 

·                    The military operatives in Uganda have a very extensive spy network in rural areas, and hiding at a relative’s residence is not safe, unless the relative lives in a distant area where the network is limited.  When this spy network fails, the military operatives “decide to pick on the relatives”.  They “do not just visit to inquire about a missing prisoner, but they just invade the family”. The spy network was limited where the appellant was hiding with relatives in Fort Portal, but the situation was still risky.

TRIBUNAL DECISION

10                  In affirming the decision under review the Tribunal made the following conclusions and findings.

·                    The Tribunal found the appellant’s account of the circumstances leading to her departure from Uganda and her fear of return “highly implausible” and did not accept it.

·                    In reaching this conclusion, the Tribunal relied in part on its view that the appellant’s account was “extremely similar, in its broad outline, to that of her sister, the applicant in Tribunal proceedings 0808728”.  The Tribunal noted that her sister claimed that her fiancé, also an FDC supporter, was detained in October 2007 because he was suspected of supporting a militant guerrilla group; that she was detained and questioned after her fiancé escaped from custody; that she too was accused of supporting the guerrilla group; that she escaped with the help of a guard; and that she hid with relatives who arranged for her to travel to World Youth Day. 

·                    The Tribunal did not accept the appellant’s proffered explanation for the similarities between the two accounts.  It rejected the argument that similar events befell the appellant and her sister because both were “active supporters of the FDC who took a leading role in FDC activities” and both were targeted because their family was associated with the FDC.  The Tribunal noted that the appellant previously claimed that she was “hardly involved with the FDC” and merely assisted her uncle; and that she had not previously claimed that any family member other than her uncle supported the FDC.  Further, in the Tribunal’s view, the appellant’s claim that the similarities between the two accounts represented a common pattern in Uganda was not a satisfactory explanation, noting that “the relevant similarities in the claims of the two sisters [lay] not in their claimed political activity, but rather, in the critical incidents which they say led to their departure”.  The Tribunal was unpersuaded by the claim that both sisters escaped in similar circumstances because the events represented a common pattern of human rights abuses in Uganda or that they both escaped in similar circumstances because Ugandan guards are easily bribed.  Overall, the Tribunal “[found] it far fetched and improbable in the extreme that two sisters would find themselves in such similar, yet unrelated, circumstances, at the same time, and in the lead up to an event which would enable them to leave Uganda”.

·                    The Tribunal also found the appellant’s explanation for the other aspects of her account identified in its letter of 20 February 2008 unsatisfactory.  Notwithstanding the appellant’s proffered explanations, the Tribunal considered it unlikely that the authorities would not have looked for her at the home of her mother or other relatives in Fort Portal; that she would have remained there if she was in fact in danger; that the appellant would have travelled to her mother’s house after escaping without checking if it was safe to do so; and that the appellant would have returned to Kasese after her initial arrest despite the fact that her uncle remained in custody and her association with him had led to her arrest.  Overall, the Tribunal found the appellant’s actions, as she described them, implausible and “highly inconsistent with the existence of a real threat of harm”.

·                    Finally, the Tribunal relied on the appellant’s lack of knowledge about the FDC’s slogan and emblem.  It did not accept that someone who distributed party materials or actively campaigned on its behalf would be unfamiliar with its symbols. 

·                    The Tribunal concluded therefore that, in the circumstances and “in view of [her] overall lack of credibility”, the appellant did not have a well-founded fear of persecution in Uganda “for reason of her political opinion, a political opinion imputed to her, including support for the FDC or the PRA, or for any other Convention reason”.

11                  For these reasons, the Tribunal concluded that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention and therefore did not meet the criterion for a protection visa set out in s 36(2)(a) of the Migration Act 1958 (Cth).

IN THE FEDERAL MAGISTRATES COURT

12                  In her application before the Federal Magistrates Court, the appellant asserted jurisdictional error upon the basis that the Tribunal’s decision was: (a) affected by apprehended bias; and/or (b) irrational, illogical and based on unwarranted assumptions.  After careful examination, the learned Federal Magistrate rejected the claim of apprehended bias, holding that “[a] fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal” and “does not suggest that the Tribunal approached its task other than with a mind open to persuasion”: see SZNNN v Minister for Immigration [2009] FMCA 876 at [67] and [68].  The Federal Magistrate also rejected the submission that the Tribunal’s findings were illogical, irrational and based on unwarranted assumptions, holding instead that the Tribunal’s findings were open to it on the evidence (at [72]-[73]).

ARGUMENT ON APPEAL

13                  On appeal, the appellant pressed essentially the same two grounds agitated before the Federal Magistrate.  Both grounds were said to disclose jurisdictional error.  The appellant made the much same points in support of the two grounds as before the Federal Magistrate, and urged that the Federal Magistrate erred in failing to accept them.  The respondent sought to uphold the judgment of the Federal Magistrate.

CONSIDERATION

14                  The first ground relied on by the appellant was that the Federal Magistrate erred in failing to find that the decision of the Tribunal was affected by a reasonably apprehended bias. 

15                  The appellant properly conceded that this was not a case in which it could be said that the Tribunal’s conduct of the proceeding indicated that the Tribunal had a predetermined view about the appellant and issues relevant to her claim.  Rather than rely on the Tribunal’s conduct, the appellant submitted that a reasonable apprehension of bias arose from the face of the Tribunal’s reasons for decision.  The appellant argued that a fair-minded observer, properly informed as to the nature of the proceedings, the matters in issue, and the reasons for the Tribunal’s decision, might reasonably apprehend that the Tribunal might not have approached her case with an impartial mind: see Re Refugee Review Tribunal; Ex parte H (2001)179 ALR 425 at 434-35 [27]-[29]. 

16                  The appellant argued that the Tribunal’s reasons showed that the claims of the appellant and her sister were effectively “bundled up” and that this bundling up gave rise to the appellant’s apprehended bias claim. As part of this argument, in written submissions, the appellant contended that the Tribunal erred in failing to inform her that the Tribunal was referring to her sister’s file.  Plainly enough, however, the Tribunal’s questions at the hearing would have made the appellant aware that the Tribunal was treating her sister’s claim as relevant to the assessment of her own.  The appellant submitted that, in failing to adjourn the appellant’s review to allow the appellant additional time to respond to information on her sister’s file, the Tribunal had failed to comply with s 424AA of the Migration Act 1958 (Cth).  The appellant’s argument in this regard did not, however, carry the appellant far, because the appellant did not allege that this failure resulted in any material error.  Nor did this argument support the appellant’s apprehended bias claim.  As the appellant noted, the Tribunal afforded the appellant an opportunity under s 424A to respond to information that it considered would be the reason, or part of the reason, for affirming the decision under review.  This information included the fact that the Tribunal considered that the claims made by the appellant and her sister were relevantly similar.  The appellant did not contend that the Tribunal was obliged to do more than this with respect to the information on the appellant’s sister’s file.  It follows from this that the fact that the Tribunal referred to the appellant’s sister’s file in the way that it did does not advance the appellant’s case on apprehended bias.

17                  In written submissions and at the hearing of the appeal, the appellant argued that there were three other elements of the Tribunal’s reasons that might lead a fair-minded observer to conclude that the Tribunal might not have approached her case with an impartial mind.  These three elements were:  (1) the adverse inference the Tribunal drew from the similarities between the two sisters’ accounts; (2) the inaccurate description of the guard who released the appellant as “kindly”; and (3) and the mischaracterization of some of her evidence as “recent invention”.

18                  The appellant argued that the sisters’ similar backgrounds readily explained the similarities in their accounts. 

19                  At this point, the appellant’s argument tended to trespass into an attack on the Tribunal’s fact-finding.  Be this as it may, it is clear enough that, even if it were accepted that the sisters’ shared backgrounds might logically explain many of the similarities in their claims, nonetheless the Tribunal could rationally draw an inference adverse to the appellant on the basis of the similarities in the two accounts.  This is particularly true considering the fact that, as the respondent noted during oral submissions, the sisters claimed to experience similar events in geographically distinct parts of Uganda during the same relatively brief time period.  In the circumstances, the Tribunal: (1) could rationally conclude, as it did, that the sisters constructed different stories using the same basic outline; and (2) could rely on this conclusion in deciding whether or not to accept the appellant’s claim, without it being said that this in any way evidenced apprehended bias.

20                  It is also worth noting in this regard that the Tribunal specifically considered the possibility that one of the accounts put forward by the appellant and her sister should be accepted.  Having rejected this possibility, it was thus open to the Tribunal to conclude that, on the evidence before it, the similarities in the claims were indicative of fabrication and should not be accepted.

21                  The appellant’s second and third points in support of her apprehended bias claim involved the submission that that the Tribunal exaggerated and misrepresented her evidence. 

22                  The appellant cited the Tribunal’s reference to a “kindly guard” as an exaggeration of her evidence, which might lead a fair-minded observer to conclude that the Tribunal might not have brought an impartial mind to her case.  The appellant noted that, according to her account, the guard only released her after she repeatedly begged him and bribed him with her ATM card.  The point that the appellant makes is that, in this circumstance, the Tribunal’s statement that she claimed to have been helped to escape by a “kindly” guard is inapposite (with which one can agree); and that this misdescription of her claim might have led a fair-minded observer to infer that the Tribunal might not have had an impartial mind.  I do not accept that this inference arises.  First, in its reasons the Tribunal also recorded that, at the hearing, the appellant told the Tribunal that the guard “seemed a little bit more human than the others”.  This presumably led the Tribunal to describe the guard in the way it did.  Bearing this in mind, the Tribunal’s choice of the word “kindly” is understandable, even though inapposite. 

23                  Secondly, it is well settled that a reviewing court “should not be ‘concerned with looseness in the language . . . nor with unhappy phrasing’ of the reasons of an administrative decision-maker”.  Nor should the court examine a decision under review “‘minutely and finely with an eye keenly attuned to the perception of error’”.  See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ.  Applying these principles, the Tribunal’s description of the guard cannot carry the weight the appellant would place on it.

24                  Apprehended bias must be clearly shown. An isolated choice of an inapposite description which is not central to the judgment is insufficient to satisfy this standard.  The Tribunal’s description of the guard was not essential to its judgment.  Although the guard’s ‘kindliness’ was one of the similarities on which the Tribunal relied in finding the appellant’s claims implausible, the Tribunal cited various other similarities which the appellant did not attack as erroneous.  

25                  The third point made by the appellant was that the Tribunal wrongly characterized some of her evidence as “recent invention”.  To make good this point, the appellant referred to the Tribunal’s description of her statement that she was a strong supporter of the FDC, and to her suggestion that members of her family other than her uncle were as well, as “new claim[s]” raised for the first time in response to the Tribunal’s letter.  This appeared in the following passage in the Tribunal’s reasons:

The Tribunal has considered the applicant’s explanation for the similarities between the claims made by her and her sister, however, it does not accept the proffered explanation, which . . . relies on new claims not previously made, namely that the applicant and her sister were both active supporters of the FDC who took a leading role in FDC activities.  The applicant previously stated that she was hardly involved with the FDC at all, but merely assisted her uncle. . . .

The applicant did not claim at the hearing that she was a member or strong supporter of the FDC, or that other members of her family (apart from the uncle in Kasese) were.  This is, in effect, a new claim made for the first time in her s 424A response, and … the Tribunal considers that, if it were true, the applicant would have raised it either in her written application or at the hearing.  In any case, neither the applicant’s, nor her sister’s claims were initially put squarely on the basis that they were supporters of the FDC, or that they came from a FDC family.  To claim at this late stage that they were does not serve to explain the relevant similarities in their respective accounts.

26                  The appellant submitted that the Tribunal’s paraphrase of her response ignored the final three words in her statement that she a “took a lead in the campaign and every political activity for the FDC in my village”, and that this omission led the Tribunal inaccurately to portray the claim as a new one.  When attention is given to the words “in my village”, then, according to the appellant, her statement did no more than expand on what appeared in her application, including that she had distributed political materials during the 2006 election.   As already noted, the appellant relied on this exaggeration to support her submission that the Tribunal’s reasons supported her contention about reasonably apprehended bias.

27                  I would reject this contention.  First, there is nothing in the Tribunal’s reasons to suggest that, in omitting reference to the words “in my village”, the Tribunal intended to ascribe a broader scope to the appellant’s claimed political activities than the appellant had given.  Even if limited to a single rural village, it was clearly open to the Tribunal to consider that “taking the lead” in a campaign was different in degree from distributing t-shirts and flyers, and connoted a greater level of involvement in party activities than “not very deeply involved”.   The Tribunal was entitled to refer to the appellant’s claim as a new one, and no apprehension of bias arises from its description.

28                  In sum, there is nothing in the Tribunal’s reasons for decision that indicates that a fair-minded lay observer, properly informed, might reasonably apprehend that the Tribunal might not have brought an impartial mind to the resolution of the appellant’s case. 

29                  The appellant relied on much the same points in support of her alternative contention that the Tribunal’s decision was illogical and irrational, and based on unwarranted assumptions.  It is unnecessary to decide, whether, if made out, this contention might have supported some ‘unreasonableness’ ground: compare NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [29] and SZLUD v Minister for Immigration and Citizenship [2009] FCA 549 at [66]-[67] per McKerracher J, citing Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38] per Gummow and Hayne JJ.  For the reasons already stated, the Tribunal’s decision did not disclose any material illogicality or irrationality, and was not relevantly based on an unwarranted assumption.

30                  For the most part, the appellant’s contention that the Tribunal’s reasoning was “illogical, irrational and based upon unwarranted assumptions” was little more than an attack on the Tribunal’s findings of fact.  By itself, such an attack cannot lead to a finding of jurisdictional error and, as the first respondent said, can have “no legal consequences”.

31                  For the reasons stated, there is no error shown in the judgment of the Federal Magistrate and the appeal should be dismissed.   

Associate:

Dated:         11 December 2009