FEDERAL COURT OF AUSTRALIA

SZORG v Minister for Immigration and Citizenship [2011] FCA 647

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of a Federal Magistrate delivered on 18 February 2011 (SZORG v Minister for Immigration [2011] FMCA 121) by which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 23 April 2010 and handed down on 27 April 2010. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Citizenship (the delegate) to refuse to grant a Protection (Class XA) Visa (protection visa) to the appellant.

2    The appellant is a citizen of Fiji who arrived in Australia on 20 August 2009. On 16 October 2009, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship (the Department).

3    In his protection visa application, the appellant said that he feared that, if he were returned to Fiji, he would be tortured, imprisoned or even killed by soldiers of the Fijian military. He said that he feared that these things would happen to him because he did not support the current military regime in Fiji and had been an advocate for democratic reform in that country.

4    In a detailed statement provided to the Department with his protection visa application, the appellant claimed that he had made a number of statements criticising the military regime in Fiji during the course of seminars which he had presented in Fiji in 2008. He said that, as a result of his making those statements, he was the victim of brutal treatment at the hands of the Fijian military on “Tuesday 13 December 2008”. The appellant claimed that, on that occasion, he was forcibly removed from his home on the Coral Coast in Fiji by members of the Fijian military and driven away in a military vehicle in which two of his cousins had also been restrained. He said that this incident took place at about 8.00 pm on the day in question. The appellant claimed that he and his two cousins were taken to a spot on the bank of the Sigatoka River which was about 20 km from Sigatoka town. He said that the three men were ordered out of the vehicle, hit in the stomachs by the butts of the rifles carried by the soldiers, forced to remove all of their clothes and forced to lie face down on the ground. He said that all of the soldiers involved in this treatment wore balaclavas throughout the incident. The appellant said that one of the soldiers placed his boot on the appellant’s head behind his left ear and poked him in the ribs with the barrel of his rifle. The appellant claimed that one of the soldiers then said that it had been reported to them that he had been making comments against the Fijian regime designed to incite unrest. He was told to cease doing so. The soldier who spoke then said that, if the appellant ever revealed what happened to him on this occasion, he would be brought back to the river, shot in the head and thrown into the river. The soldier said that they would then go and rape his wife and daughter. The soldiers then drove away leaving the three men on the river bank. The appellant claimed that all three then dressed themselves and walked back to Sigatoka town, arriving at about 2.00 am.

5    In the account given by the appellant in his statement provided to the Department, he initially referred to the two men who were arrested with him on 13 December 2008 as his “cousins”. Later in that statement (21 lines after the first reference and on the same page where the first reference appears) he referred to the men who were with him as “my three friends”.

6    The appellant also claimed that a second incident occurred during the weekend of “March 20–24, 2009”. He said that he was at the village of Vatubalavu in Navosa when he was woken in the early morning of Tuesday 24 March 2009 by gunshots and shouting. He said that he ran out of the house to find other villagers running in many different directions out of fear and confusion. He said that he saw a soldier positioned in the front of the house next door to the house in which he was staying. He said that he then hid behind a hedge until the soldiers had withdrawn. He said that he was hiding behind this hedge for some hours.

7    The third incident upon which the appellant relied is claimed by him to have occurred in July 2008. He said that, on this occasion, he was at his mother’s village of Korolevu in Navosa, in the interior of Viti Levu island, when he witnessed a young man who was tied up being beaten by a senior military officer with a lump of wood. He said that the young man was severely beaten and kicked many times in the face and ribs.

8    The appellant claimed that he was in fear of the Fijian military. He claimed that the military was paying informers to inform against those who would speak out against the regime. He said that he has lived in fear of the regime since December 2008.

9    The delegate conducted an interview with the appellant on 7 January 2010.

10    The delegate refused the appellant’s application for a protection visa on 14 January 2010. The delegate doubted the veracity of the appellant’s claims. The delegate noted that the appellant had claimed that 13 December 2008 was a Tuesday and that he had been at work during the day when the alleged assault occurred. However, 13 December 2008 was a Saturday and the appellant did not ordinarily work on a Saturday. The delegate also noted that the contents of one of the letters which the appellant put forward in support of his application (viz the letter provided by the appellant’s wife) were inconsistent with his claims. That letter included assertions that there were three others (“… three other cousins …”) taken with the appellant on the night of 13 December 2008, not two others as he claimed in his protection visa application. In another letter prepared in 2009 submitted with his protection visa application, the appellant himself said that he had been “… brutalized by the military with other friends in December of 2008”.

11    The delegate also noted that the appellant had continued to work at the school at which he was employed in December 2008 and to live in the same village for eight months after the incident which he said had occurred in December 2008. He did not apply for a visa to enter Australia until 6 August 2009. He had left Fiji on 20 August 2009 lawfully and without incident on a genuine passport issued in his own name. The delegate took the view that these circumstances were not consistent with the appellant having a well-founded fear of persecution for a Convention-related reason.

12    The delegate concluded that the appellant did not have such a significant profile that he would be targeted or be at risk of persecution should he be returned to Fiji. For these reasons, the delegate refused the appellant’s application for a protection visa.

The Proceedings in the Tribunal

13    On 3 February 2010, the appellant applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate’s decision. In a letter dated 18 February 2010, the appellant was invited to appear before the Tribunal to give evidence and to present arguments relating to his application for review. That letter from the Tribunal stated that the hearing of the appellant’s application was scheduled for 23 March 2010. The letter also enclosed a form entitled “Response to Hearing Invitation” enabling the appellant to confirm the hearing and to make any requests or attach any additional information for the Tribunal to consider. A completed “Response to Hearing Form” was received from the appellant by the Tribunal on 17 March 2010. In that document, the appellant requested the assistance of a Fijian interpreter at the Tribunal hearing.

14    The hearing of the appellant’s application for review took place, as scheduled, on 23 March 2010. On 27 April 2010, the Tribunal notified the appellant of its decision to affirm the delegate’s decision and to dismiss his application for review.

15    The Tribunal found that the appellant’s claims lacked credibility and could not be accepted. The Tribunal considered that the discrepancies between the information which the appellant supplied to the Department and the information which he supplied to the Tribunal were problematic in terms of the appellant’s credibility and the veracity of his core claims. In particular, the Tribunal highlighted the discrepancies relating to the incident of 13 December 2008. The appellant had claimed that this incident occurred on a Tuesday. However, the delegate informed him that 13 December 2008 was, in fact, a Saturday. The appellant maintained that the incident occurred on a Tuesday. The appellant then submitted a Statutory Declaration to the Tribunal dated 9 March 2010 in which he stated that the incident had occurred on Tuesday 16 December 2008. The Tribunal did not accept that the appellant’s earlier assertions that the incident had occurred on Tuesday, 13 December 2008, was simply a mistake in his recollection in light of other inconsistencies in the appellant’s evidence.

16    The Tribunal was concerned about the appellant’s two month delay in lodging his application for a protection visa. The appellant said that this delay was due to his taking time to prepare his application. The Tribunal took the view that the appellant was less likely to have made mistakes in his application if it had not been prepared in haste.

17    The Tribunal also had reservations about the appellant’s inconsistent claims regarding whether or not he had assisted his wife with the letter which she sent to the Tribunal. The Tribunal also highlighted inconsistencies concerning the identity of those persons who were detained with the appellant during the December 2008 incident. The appellant claimed at different times that he was accompanied by three friends (or cousins) and at other times that he was accompanied by two friends (or cousins). In addition, a letter from one of the appellant’s cousins asserted that four cousins altogether had been taken away during the December 2008 incident. The appellant’s evidence concerning the trip back to Sigatoka town also varied significantly, so the Tribunal held.

18    The Tribunal did not accept the appellant’s explanation for these inconsistencies.

19    The Tribunal viewed the appellant’s blogging activities as being inconsistent with his claims that he was afraid for his wife and daughter in Fiji. The appellant had stated that the military had approached his wife on three occasions since he had left Fiji and that he was afraid that she and his daughter would be sexually assaulted by members of the Fijian military. The Tribunal found this story to be inconsistent with the appellant’s behaviour in blogging from Australia using his own name and a photo of himself to criticise the military regime.

20    The Tribunal noted that, notwithstanding what he had claimed had occurred in the December 2008 incident, he did not leave Fiji until he was invited to an alumni event in Australia in August 2009.

21    At the Tribunal hearing, the Tribunal had before it a letter from the Transcultural Mental Health Centre in Parramatta. The letter was dated 22 March 2010. In that letter, the author of the letter stated that she had provided counselling and assessment services to the appellant under the Transcultural Mental Health Service, in relation to the effects of traumatic experiences in Fiji and their impact on his health. The author went on to say that the appellant was committed to ongoing mental health treatment to address the symptoms associated with his experience of persecution, threats to his life and trauma and that he had been referred to a clinic for this purpose. The letter was signed by the author who described herself as a “Gestalt Psychotherapist”.

22    After the Tribunal hearing, but before it made its decision, the lawyers acting for the appellant forwarded to the Tribunal a further letter from the Transcultural Mental Health Centre. This letter was signed by the same psychotherapist who had signed the previous letter. This letter was in the following terms:

Sydney, 06 April 2010

TO WHOM IT MAY CONCERN

I hereby certify that following the initial Post-Traumatic Stress Disorder diagnosis made for [the appellant] under the Transcultural Mental Health Service, his symptoms are consistent with this diagnosis as follows:

•    Difficulty remembering certain aspects of the traumatic events in contrast with stark clarity for other memories of the event.

•    Development of symptoms such as increase of fear, startled reactions, difficulty sleeping, and poor concentration over a sustained period of time.

•    Emergence of more memories more clearly as treatment progresses.

•    Emergence of feelings of anger and desire for justice as treatment progresses.

I have also noted the alternate use of the words “brother”, “friend” and “cousin” which is very likely related to linguistic patterns of [the appellant’s] culture of origin.

As stated before, [the appellant] is committed to ongoing mental health treatment to address the symptoms associated with his experience of persecution, threats to his life and trauma and has been referred to a clinic for this purpose.

Please contact me on 0422 230 966 should you wish to discuss the contents of this letter.

Kind regards

[The author’s name]

Gestalt Psychotherapist

23    After dealing with the appellant’s claims, at [120] of its Statement of Decision and Reasons, the Tribunal said:

The Tribunal has considered the two letters from the Transcultural Mental Health Centre dated 22 March 2010 and 6 Apri1 2010. The letter dated 6 April 2010 states that the applicant has been diagnosed with Post Traumatic Stress Disorder and his symptoms are consistent with this diagnosis. These letters do not indicate how many sessions the Centre had with the applicant, the length of those sessions, over what period of time an assessment was made and whether the assessment was based on independent tests or on the history provided by the applicant. The Tribunal has had the opportunity of observing the applicant over a lengthy hearing. Whilst the Tribunal does not have the qualifications or experience to make mental health assessments, the applicant’s appearance, conduct and his ability to answer questions during the course of the hearing were not consistent with the assessment made by the Transcultural Mental Health Centre. For the reasons given above, the Tribunal places little weight on these two letters.

24    The Tribunal then stated that it placed little weight on the two letters provided by the appellant’s wife and his cousins.

25    Ultimately, the Tribunal did not accept the appellant’s claims nor the submissions made on his behalf. The numerous inconsistencies as between the appellant’s version of events provided to the Department and that which was given to the Tribunal raised serious concerns regarding the appellant’s credibility and the veracity of his claims. The Tribunal ultimately concluded that the appellant was not a witness of truth and considered that he was prepared to fabricate claims to give himself the profile of a refugee. The Tribunal did not accept the appellant’s claims regarding his political activities or the threats allegedly made to him by the Fijian military. The Tribunal did not accept that the Fijian military had made enquiries of the appellant’s wife and cousins. The Tribunal did not accept the appellant’s claims concerning his blogging activities.

26    In the end, the Tribunal did not accept that the appellant had a real basis for his claims to fear persecution. The Tribunal therefore concluded that the appellant would not be at risk of persecution should he return to Fiji and was not someone to whom Australia owed protection obligations.

The Decision of the Federal Magistrate

27    On 7 October 2010, the appellant applied for judicial review of the Tribunal’s decision in the Federal Magistrates Court. In his Application for Review, the appellant set out 19 grounds of appeal. The Application was supported by a lengthy affidavit sworn by the appellant. The appellant also appeared at the hearing and spoke for himself.

28    The grounds of appeal relied upon by the appellant in the Federal Magistrates Court may be summarised into three groups:

(a)    The Tribunal was affected by apprehended or actual bias.

(b)    The Tribunal did not conduct the hearing in a manner which allowed the appellant to address specific concerns which the Tribunal had.

(c)    The Tribunal did not disclose to the appellant the nature of the evidence that it relied upon and therefore denied to the appellant the opportunity to rebut that evidence.

29    At [1]–[19] of his reasons, the Federal Magistrate outlined the history of the appellant’s attempts to remain in Australia and of the proceedings. At [20], the Federal Magistrate summarised the grounds of appeal raised by the appellant in the Federal Magistrates Court.

30    At [21]–[25], the Federal Magistrate said:

21.    In the light of Allsop J’s clear guidance [in SZDFO v Minister for Immigration [2004] FCA 1192 at [8]–[12]], it is not for me to say that I regard the Tribunal’s assessment of the applicant as flawed or that even cumulatively the alleged inconsistencies might well not point another to a finding of lack of credibility. This Court did not attend the hearing and no transcript, nor recording, has been provided. This makes the applicant’s claim that the Tribunal was biased against him very difficult indeed to establish.

22.    In his application to this Court, the applicant refers to apprehended bias but he should be aware that in WAKS v Minister for Immigration [2006] FCAFC 32 a Full Bench, Nicholson, Lander and Siopis JJ, said at [30]:

“There is a suggestion in one paragraph of the appellant’s written submissions that the RRT so conducted itself as to lead to the inference of an apprehension of bias: NADH of 2001 v Minister for Immigration [2004] 214 ALR 264 [115] per Allsop J. In that authority it is made clear that what is necessary is that it is shown that the conclusions of the RRT have been reached with a mind not open to persuasion or unwilling to evaluate all the material fairly. There is, however, nothing before us or in the decision of the RRT to attract the application of those criteria.”

23.    And in SZHVL v Minister for Immigration [2008] FCA 356 McKerracher J said at [17]:

“It is clear that an allegation of bias must be distinctly made and proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J: It would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal: SCAA v Minister for Immigration [2002] FCA 668 at [38] per von Doussa J.”

As has been said, disagreement with, even violent disagreement with the views expressed by a Tribunal does not constitute jurisdictional error. In this particular case, the inconsistencies pointed out by the Tribunal existed. The Tribunal was charged with determining whether or not it should accept the explanations given by the applicant and determined not to. In those circumstances, its findings were based upon available evidence and do not reveal jurisdictional error.

24.    The applicant expressed particular concern about the way in which the Tribunal dealt with the second of the two medical reports. It is correct to say that this report is concise. Whilst it refers to traumatic events, it does not say what they are. Insofar as it indicates the alternate use of the words “brother”, “friend” and “cousin” being likely related to linguistic patterns of the applicant’s culture, this appears to have been accepted by the Tribunal.

25.    The Tribunal’s criticism of the report for not revealing the source of the applicant’s aetiology is to my mind valid and, whilst another Tribunal may have taken that report together with the explanations provided by the applicant for the inconsistency to come to the view that he, in fact, was telling the truth, this Tribunal did not and the Court is unable to interfere.

31    The Federal Magistrate went on to hold that the appellant had failed to make out his claims of bias or denial of procedural fairness at the hearing before the Tribunal. He also held that there was no breach of s 424A of the Migration Act 1958 (Cth) (the Migration Act).

The Present Appeal

32    On 11 March 2011, the appellant filed a Notice of Appeal in this Court.

33    To a large extent, in his Notice of Appeal, the appellant repeats the grounds of appeal upon which he relied in the Federal Magistrates Court. Many of those grounds are directed to the merits of the Tribunal’s decision and cannot be revisited in this Court on an appeal from a Federal Magistrate conducting judicial review of the Tribunal’s decision.

34    I propose to deal with the grounds of appeal raised by the appellant in this Court in groups.

Bias (Grounds 2, 3, 4, 5 and 6)

35    As the Federal Magistrate observed, the appellant did not tender a transcript of the hearing before the Tribunal nor did he tender a sound recording of that hearing. His case that the Tribunal was biased is dependent entirely upon a consideration of the Tribunal’s reasons. It will be a rare case where bias can be demonstrated simply by reference to the reasons given by the Tribunal (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]; SZHVL v Minister for Immigration and Citizenship [2008] FCA 356). An allegation of bias must be distinctly made and proved (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507).

36    In the present case, the Tribunal gave detailed consideration to all of the appellant’s claims and to the evidence which he tendered in support of those claims. The appellant was provided with every opportunity to explain the inconsistencies which the Tribunal identified both at the hearing and in the s 424A letter which it sent subsequently.

37    In the end, the Tribunal did not accept the appellant’s version of events. This was not because it was biased against him or because it failed to assess evidence and provide a fair opportunity to comment. It was simply because, in the end, it did not accept his version of events.

38    The Federal Magistrate looked carefully at the question of bias and came to the view that none had been demonstrated. There was no error in the approach or in the decision taken by the Federal Magistrate in respect of this aspect of the matter.

Failure to Make Enquiries (Ground 7)

39    The appellant’s complaint is that the Tribunal did not make enquiries as to his relationship and connection with a Minister in the SDL Government of Mr Quarase.

40    This was not a matter argued before the Federal Magistrate. Nor was it raised by him in the hearing before the Tribunal or in the material provided to the Tribunal. As far as his membership of the SDL party was concerned, this was a matter which the Tribunal addressed and considered.

41    In any event, there was no duty to make the enquiries which the appellant now alleges should have been made (Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; (2009) 259 ALR 429 at [25]).

The Letters from the Psychotherapist and the Appellant’s Mental State (Grounds 5 and 12)

42    The appellant’s concerns in respect of the Tribunal’s treatment of the letters from the Transcultural Mental Health Centre were ventilated before the Federal Magistrate although it is doubtful that they were raised in the Application for Review filed in the Federal Magistrates Court by the appellant. The appellant directed most of his efforts to these letters in the oral submissions which he made at the hearing before me.

43    Both letters from that Centre are vague in their terms. The observations made by the Tribunal in the first six and a half lines of [120] of its Statement of Decision and Reasons are, to my mind, quite accurate. Given that the most important traumatic event in the version of events conveyed to the Department and to the Tribunal by the appellant was the December 2008 incident, the Tribunal was entitled to accord little weight to the two letters provided by the Transcultural Mental Health Centre in the absence of a far greater elucidation of the history given to the psychotherapist who provided the letters and the relationship between the events recounted in that history and the subsequent mental state of the appellant.

44    At first blush, the Tribunal appears to have made an assessment of the mental health of the appellant in the very same breath as disavowing any capacity or expertise to do so. However, a fair reading of the Tribunal’s Statement of Decision and Reasons demonstrates that the Tribunal had formed the view by reason of the many inconsistencies discussed in that Statement that the core claims made by the appellant were simply untrue. At [120], the Tribunal held that the two letters from the Transcultural Mental Health Centre did not provide a sufficient counterpoint to the conclusions to which it had otherwise come in relation to the appellant’s claims. In effect, the Tribunal held that, taking the letters at their highest, the contents of the letters did not provide a sufficiently persuasive explanation for the many inconsistencies which had troubled the Tribunal.

45    The remarks made by the Tribunal in the latter part of [120] do not demonstrate a constructive failure to exercise jurisdiction by the Tribunal (as to which see Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594).

Conclusion

46    The appellant has failed to establish that the Federal Magistrate erred when he dismissed the appellant’s application for judicial review of the Tribunal’s decision. His appeal must therefore be dismissed with costs.

47    There will be orders accordingly.

Associate:

Dated:    8 June 2011