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SZOMT v Minister for Immigration & Anor [2011] FMCA 3 (31 January 2011)

Last Updated: 3 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOMT v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Sri Lanka as a Tamil Muslim – whether the Tribunal breached ss.424A or 424AA of the Migration Act 1958 (Cth) considered.


Minister for Immigration v NAMW [2004] FCAFC 264; (2004) 140 FCR 572
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41
QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92
SZBYR v Minister for Immigration [2007] HCA 26; [2007] HCA 26; (2007) 235 ALR 609
VHAP of 2002 v Minister for Immigration [2004] FCAFC 82; (2004) 80 ALD 559
VJAF v Minister for Immigration [2005] FCAFC 178
WAJW v Minister for Immigration [2004] FCAFC 330

Applicant:
SZOMT

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
SYG1406 of 2010

Judgment of:
Driver FM

Hearing date:
11 November 2010

Delivered at:
Sydney

Delivered on:
31 January 2011

REPRESENTATION

Solicitors for the Applicant:
Mr T Selliah
Selliah & Associates

Counsel for the Respondents:
Mr J A C Potts

Solicitors for the Respondents:
Clayton Utz

ORDERS

(1) The application is dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG1406 of 2010

SZOMT

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction and background

  1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 28 May 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
  2. The applicant is from Sri Lanka and had made claims which could be characterised as claims based on political opinion, imputed political opinion, ethnicity and religion. The following statement of background facts is derived from the submissions of the parties.
  3. The applicant is a 47 year old citizen of Sri Lanka.[1] He is a Tamil speaking Muslim.[2] He arrived in Australia on 29 June 2009.[3] He has a wife, four children and six siblings remaining in Sri Lanka.[4]
  4. On 29 July 2009 he made an application for a protection (Class XA) visa.[5] In that application he claimed to have been an ardent and active supporter of the opposition United National Party (“UNP”). He claimed to have been involved in selling vehicles to the Liberation Tigers of Tamil Eelam (“LTTE”).[6] The applicant claimed to have been arrested and subjected to life threatening harassment and persecution, first by the Terrorist Investigation Division (“TID”), and then by the Karuna Group, a pro-government paramilitary group. Both referred to his Muslim ethnicity and active support for the UNP and imputed that he was a sympathiser or supporter of the LTTE. It was asserted that Tamil speaking Muslim businessmen who support the opposition UNP and have had some link with the LTTE are a group of people singled out and targeted by the Sri Lankan authorities and pro-government paramilitary outfits.[7] It was asserted that he feared persecution for the convention reasons of race, membership of a particular social group and imputed political opinion if he were to return to Sri Lanka.[8]
  5. On 26 October 2009 a delegate of Minister refused to grant a protection visa.[9]
  6. On 18 November 2009 the applicant sought review by the Tribunal.[10] The applicant attended a hearing with his representative on 29 January 2010.[11]
  7. As noted above on 28 May 2010 the Tribunal affirmed the decision.[12]

The Tribunal’s decision

  1. While the Tribunal accepted that the applicant was a Muslim and was a member of the UNP and supported the UNP during the 2009 elections, it did not accept the applicant had left his country and could not return for the reasons that he had claimed. The Tribunal considered that the applicant had given untruthful evidence. Specifically it concluded that:
    1. the applicant’s evidence that he had continued to live at his usual address with his family and conduct his business up until he came to Australia was not consistent with his claims that he and his family were persecuted or feared harm from rival political group members;[13]
    2. the applicant’s claim that he was attacked by a paramilitary group in April 2009 was inconsistent with his decision to stay in Sri Lanka for one month after that attack, despite already having been granted a visa and having obtained a passport;[14]
    1. his claim that he feared harm from the authorities was inconsistent with his evidence that he approached the authorities and applied for, and was granted, his passport and visa during a period of time that he claimed to have been of interest to TID;[15] and
    1. the Tribunal found that the documents produced by the applicant in support of his claims were not reliable evidence of the facts in them given the inconsistencies arising on the face of those documents. The Tribunal also took into account the fact of widespread document fraud in Sri Lanka.[16]
  2. In view of the factual findings it made, the Tribunal did not accept that the applicant was a person to whom Australia had protection obligations.[17]

The present application

  1. These proceedings began with a show cause application filed on 28 June 2010. The hearing of the application was somewhat delayed due to the applicant’s solicitor’s illness, and his written submissions, when filed, took a somewhat different path than the grounds in the application. There were four grounds in the application, but only the first ground was pressed, with detailed particulars being provided. I gave leave for an amended application to be filed, which occurred on 18 November 2010. The grounds in the amended application are:

The evidence and submissions

  1. I received as evidence the court book filed on 23 July 2010. I also received as evidence (with the deletion of comment) the affidavit of Edilbert Naveenan Rajadurai, to which is annexed a transcript of the hearing conducted by the Tribunal.
  2. While the applicant concedes that the Tribunal purported to go through a process of oral disclosure at the Tribunal hearing, the applicant contends that the Tribunal breached s.424AA of the Migration Act 1958 (Cth) (“the Migration Act”) in relation to:
    1. letters in support of the applicant’s protection visa claims obtained by his wife;
    2. information concerning the applicant’s delay in leaving Sri Lanka;
    1. inconsistent evidence given by the applicant; and
    1. information concerning the address of the applicant’s brother.
  3. The Minister contends that none of the information referred to by the applicant was information which was required to be disclosed pursuant to s.424A, either because it was not “information” for the purposes of s.424A(1) or because it was information excluded from the obligation of disclosure, pursuant to s.424A(3). Accordingly, the Minister submits that there can be no breach of s.424AA.

Consideration

  1. Sections 424A and 424AA provide:
Section 424AA
If an applicant is appearing before the Tribunal because of an invitation under section 425:
  1. Section 424A takes as its subject “information”, being information of the kind referred to in s.424A(1)(a). The meaning of “information” in this context “is related to the existence of evidentiary material or documentation”: SZBYR v Minister for Immigration [2007] HCA 26; (2007) 235 ALR 609 at 616 at [18]. If information falls within s.424A(1)(a), then the obligations imposed by s.424A(1) will be enlivened, unless the information in question also falls within one of the excepted categories provided for in sub section (3). Paragraph (a) of sub section (3) thus describes one of four categories of information to which s.424A would otherwise apply, but which, by virtue of those exceptions, is taken not to apply.
  2. I accept the Minister’s contention that the first ground is misconceived and should be rejected.
  3. The Federal Court has settled the law in relation to the construction of s.424A(3)(a).
  4. In VHAP of 2002 v Minister for Immigration [2004] FCAFC 82; (2004) 80 ALD 559 at [14] Gyles and Conti JJ, in dealing with an argument that s.424A(3)(a) should be construed as contended for by the applicant in this case, held:
  5. In a separate judgment, Allsop J held at [21] that the construction favoured by Gyles and Conti JJ was “clearly correct”.
  6. In Minister for Immigration v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at [67]- [71], Beaumont J held:
  7. The majority, Merkel and Hely JJ, after undertaking a process of reasoning quoted in part by the applicant (at [26] of the supplementary summary of argument) concluded at [138]:
  8. Subsequent repeated attempts to challenge the correctness of VHAP and NAMW in the Full Federal Court have been rejected: WAJW v Minister for Immigration [2004] FCAFC 330 at [45]; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [16]- [31]; and VJAF v Minister for Immigration [2005] FCAFC 178 at [11]- [16]. In QAAC the Full Court concluded at [26] that:
  9. I accept the Minister’s submission that there was no jurisdictional error by the Tribunal in failing to disclose country information relied on by the Tribunal. The position is different under the general law[18] but the general law is ousted by the clear words of s.424(3)(a).
  10. The inconsistencies in the evidence provided by applicant to the Tribunal (whether orally or in writing) was not information which required disclosure pursuant to s.424 because of the operation of s.424A(3)(b).
  11. Neither was the evidence given by the applicant to the Tribunal information which was on its face adverse[19].
  12. Prior to the enactment of s.424A(3)(ba) the applicant may have had an argument of error in respect of failure to disclose inconsistencies between information the applicant gave to the Tribunal and written information he gave to the Department in support of his visa application. Section 424A(3)(ba) was enacted specifically to deal with that issue. The provision has the effect that Parliament intended and no issue of error arises since that enactment in relation to non disclosure of information contained in a statutory declaration provided to the Minister’s Department in support of a protection visa application. As to the issue of inconsistencies generally in information provided by an applicant see SZBYR at [19]-[20].
  13. As to the documents apparently provided by the applicant’s wife, these are reproduced at CB 139-147 and are identified by the Tribunal at [26] of its reasons[20] where the Tribunal said:
  14. The documents were discussed with the applicant at the Tribunal hearing. The transcript of the Tribunal hearing records the following discussion:[21]
[A] Over.
Adv [unclear] the original and one photocopy.
M The Islamic centre
Adv Yes
M Central Provincial Council.
Adv Ye[s]
M This one.
Adv Ya. That’s one the copy.
M That’s a photocopy.
Adv Photocopy. I have the original in my photocopier.
M Oh you left
Adv I left it.
  1. The applicant’s complaint is that the adverse information contained in these documents was not adequately explained to him and that it needed to be explained because the information was not in truth from him, but from his wife. It is apparent from the transcript that, although the applicant’s wife assisted him in obtaining the documents, it was the applicant who relied on them in support of his protection visa claims and it was the applicant who provided them to the Tribunal. It seems to me, in the circumstances, that the documents were “information” given to the Tribunal by the applicant for the purposes of s.424A(3)(b). There may be circumstances in which information is given by a third party to the Tribunal which incidentally passes through an applicant’s hands as a mere conduit but this is not that case.
  2. Information concerning the applicant’s delay in leaving Sri Lanka came from his passport and his oral evidence at the Tribunal hearing. The applicant provided his passport to the Tribunal at that hearing[22]. That was not information requiring disclosure to the applicant because of the operation of s.424A(3)(b).
  3. The issue of the applicant’s brother’s address came from one of the documents the applicant submitted. This was discussed at [61] of the Tribunal’s reasons[23] where the Tribunal says:
  4. The document referred to by the Tribunal was provided by the applicant in support of his protection visa claims and, accordingly, the information in it did not require disclosure to the applicant pursuant to s.424A. Moreover, the Tribunal’s subjective reasoning process concerning the information in the document (and the other information provided by the applicant) was not “information” for the purpose of s.424A(1)[24].
  5. I conclude that none of the information referred to by the applicant in support of the proposition that the Tribunal failed to meet its obligation of disclosure pursuant to either s.424AA or s.424A was information that was required to be disclosed for the purposes of s.424A and hence no issue of a breach of the requirements in s.424AA arises. I reject the grounds of review in the amended application.
  6. I conclude that the Tribunal decision is a privative clause decision and the application must be dismissed. I will so order.
  7. I will hear the parties as to costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Driver FM


Associate:


Date: 31 January 2011

[1] Court Book (“CB”) at 25-26.
[2] CB at 1 and 26.
[3] CB at 27.
[4] CB at 3.
[5] CB at 1-59.
[6] CB at 1.
[7] CB at 1.
[8] CB at 2.
[9] CB at 98-103.
[10] CB at 105-108.
[11] CB at 127-129.
[12] CB at 152.
[13] CB at 165 at [57].
[14] CB at 166 at [57].
[15] CB at 167 at [60].
[16] CB at 167 at [61].
[17] CB at 168 at [62]-[63].
[18] See Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41
[19] See SZBYR v Minister for Immigration [2007] HCA 26 at [17]
[20] CB 158
[21] Transcript, pages 33 - 40
[22] See the Tribunal’s decision at [54], CB 165
[23] CB 167
[24] See SZBYR at [18]

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