SZQBO v Minister for Immigration & Anor [2011] FMCA 679 (7 September 2011)

Last Updated: 8 September 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQBO v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 679

MIGRATION – Review of decision of the Refugee Review Tribunal – request for impermissible merits review – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss. 424A, 476

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 66 ALR 299; (1986) 60 ALJR 560 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609; (2007) 81 ALJR 1190 Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; (2011) 192 FCR 173; (2011) 276 ALR 1 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568

Applicant:

SZQBO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 548 of 2011

Judgment of:

Nicholls FM

Hearing date:

23 August 2011

Date of Last Submission:

23 August 2011

Delivered at:

Sydney

Delivered on:

7 September 2011

REPRESENTATION

Appearing for the Applicant:

In Person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

(1) The application made on 25 March 2011 is dismissed.
(2) The applicant pay the first respondent’s costs set in the amount of $5,800

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 548 of 2011

SZQBO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 25 March 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal ( “the Tribunal”) made on
   21 February 2011, which affirmed the decision of a delegate of the first respondent to refuse a protection visa to the applicant.

Background

2. The applicant is a citizen of Brazil. He arrived in Australia on
   9 March 2003 on a student visa. He applied for a protection visa on 24 June 2010 (Court Book – “CB” – CB 1 to CB 77). At the time of application he held a Bridging Visa E (CB 3).

Claims to Protection

3. The applicant’s claims to protection are contained in his protection visa application.
4. He claimed that there were threats to his life as a result of reports he produced, while working as a freelance investigative journalist, relating to police officers involved in a drug cartel. The threats were made by phone and by letters addressed to his home address. These described in detail the daily activities of the applicant and his family members.
   The threats were to kill him and those related to him (CB 7).
5. He believed he would be an easy target for the drug dealers, police officers and politicians related to the drug cartel who had power to influence decisions, and were able to get valuable information for their own benefit (CB 9).

The Delegate

6. The delegate found the applicant’s claims to be inconsistent and lacking in detail (CB 100 to CB 101). The delegate noted that the applicant was unable to provide any written evidence of his claimed investigations (CB 100). He further found the applicant’s claims to have continued meeting with drug dealers, having already received threats, to be implausible (CB 101). The applicant’s claims that his friend had been executed in 2007 after speaking to him about his experiences were also found to be implausible (CB 101).
7. The delegate also found it implausible that the applicant would remain at one address if he were facing the magnitude of threats claimed (CB 102). Further, the delegate found the applicant’s explanations for his delay in applying for a protection visa to be unconvincing and unsatisfying (CB 102). Finally, the delegate found the applicant’s delay in departing Brazil following the claimed threats indicated a lack of fear of persecution (CB 102).
8. The delegate was not convinced that the applicant was involved in attempts to uncover corruption to any real extent, or that he was of interest to corrupt police officers. Nor would he be of interest to the people he claimed to fear if he were to return to Brazil in the foreseeable future (CB 102).

The Tribunal

9. The applicant applied for review to the Tribunal on 22 November 2010 (CB 104 to CB 107). He was invited to, and ultimately did, attend a hearing on 3 February 2011 (CB 109, CB 125). The Tribunal’s account of what occurred is contained in its decision record ([32] at CB 191 to [63] at CB 197).
10. The Tribunal found the “... vagueness and the lack of circumstantial detail” of the applicant’s account cast “... strong doubts as to its credibility” ([78] at CB 200) and served to cast doubt on other elements of his claims ([79] at CB 200). (See also generally [85] at CB 201 to [96] at CB 203.) The Tribunal also found that there were a number of inconsistencies in the applicant’s claims ([87] at CB 201 to [89] at CB 202) and “significant improbabilities in some aspects of his account ([90] at CB 202 to [93] at CB 203).
11. In considering these aspects of his evidence, the Tribunal found his account so implausible that it did not accept it to be true ([94] at CB 203).
12. The Tribunal rejected the applicant’s explanation and the reason for his seven year delay in applying for protection ([95] at CB 203).
13. While accepting the various medical evidence provided by the applicant as to his emotional and physical condition, it found that this did not go so far as to remedy the defects in the evidence he had provided to the Minister’s Department or Tribunal ([80] at CB 200). (See also [81] at CB 200 to [84] at CB 201 and [89] at CB 202.)
14. The Tribunal was not satisfied that the applicant had a well-founded fear of Convention-related persecution if he were to return to Brazil ([98] at CB 203). It determined that the applicant was not a person to whom Australia owed a protection obligation ([100] at CB 204) and affirmed the delegate’s decision not to grant a protection visa ([101] at CB 204).

Application Before the Court

15. The applicant appeared before the Court in person. An interpreter in the Portuguese language was present. The applicant on occasion sought assistance in that language from him. Mr T Reilly of counsel appeared for the first respondent.

Consideration

16. The applicant’s “grounds” in the application to the Court are presented in a lengthy narrative, albeit with numbered paragraphs. Nothing in this leads to any jurisdictional error being revealed in the Tribunal’s decision.
17. Ground one does not rise above a challenge to the Tribunal’s findings of a lack of credibility in important parts of the applicant’s factual account. As Mr Reilly submitted, the Tribunal’s findings in this regard were findings of fact within the exercise of its jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407; (2000) 74 ALJR 405). No error is revealed in circumstances where the Tribunal made findings reasonably open to it on what was before it, and for which it gave reasons.
18. The specific complaint that the Tribunal found his claims to be implausible because of the applicant’s lack of progress in finding out the names of the high profile drug runners he claimed to have investigated simply misconstrues and misrepresents the Tribunal’s analysis. The Tribunal found adversely to the applicant’s credit on a wide range of matters.
19. In any event, the Tribunal did not make any finding as to the lack of credibility of the applicant’s account because of any lack of progress in identifying members of the drug cartel. The Tribunal’s relevant finding was that his account of the alleged investigation was notably vague.
20. One example of this was that, on the applicant’s own evidence, he had spent a certain amount of time in “an important research project for him” yet he was unable to provide any account of this project that was above being “notably vague” ([76] at CB 199). It was the vagueness of the evidence, not the lack of progress that counted against the applicant.
21. The applicant’s reference to country information not supporting the Tribunal’s relevant findings (at [76] to [77] at CB 199) again fails to understand that it was the applicant’s own evidence, and the nature of that evidence, that counted against him.
22. While the applicant submitted a number of documents to the delegate and the Tribunal, including information about murder rates in Brazil and reports on the killing of journalists (see CB 51 to CB 70 and CB 131 to CB 141), what the Tribunal made of this country information is a matter for the Tribunal. In any event, none of these events were linked to or related to the applicant’s claims and the specific project on which he claimed to have worked, and which was said to be the source of his claim to fear harm. Ground one does not reveal error on the part of the Tribunal.
23. Ground two complains that the Tribunal failed to give “sufficient weight” to the psychological evidence that he submitted to explain his inability to present his claims “accurately and in detail” to the Tribunal. Further, it criticises the view the Tribunal took of this material.
24. The difficulty for the applicant here, in relation to this further evidence, is that the Tribunal did not ignore this material. Its analysis here is set out in its decision record ([80] at CB 200 to [86] at CB 201).
    The Tribunal accepted that he had been assessed as exhibiting symptoms of Post Traumatic Stress Disorder and that it might go some way to explaining “... the very limited circumstantial detail...” the applicant provided at the hearing in relation to his claimed “undercover investigation”. Further, the Tribunal found that some of this material may offer “a possible explanation” for the applicant’s difficulties in this regard.
25. But for reasons which were open to it on all of the material which was before it, the Tribunal ultimately found it was not satisfied that this material provided a satisfactory answer in explanation for the applicant’s difficulty. The Tribunal’s factual findings in this regard were open to it. The weight that it assigned to this material was a factual matter for the Tribunal (Minister for Aboriginal Affairs v
    Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 66 ALR 299; (1986) 60 ALJR 560).
26. The third ground complains that the Tribunal fell into error when it failed to ensure the applicant had a “disc” of the interview with the delegate prior to the hearing. This complaint arises in the context of the Tribunal’s questioning of the applicant at the hearing about inconsistencies between his evidence to the Tribunal and what he told the delegate (see [44] to [45] at CB 193).
27. The applicant did not explain the legal basis for this complaint. In any event, there is no obligation on the Tribunal to “ensure” access to the disc. As Mr Reilly submitted, the applicant is presumed to know what he told the delegate. None of the Tribunal’s questions in this regard should have come as a surprise given his inconsistent evidence.
28. In terms of the relevant statutory procedural code (s.424A of the Act), the inconsistencies in the applicant’s evidence and the Tribunal’s view of this evidence is not “information” within the meaning of that term pursuant to s.424A(1) (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609; (2007) 81 ALJR 1190 at [17] to [18]).
29. In this regard, as Mr Reilly submits, there is no breach of s.424A, and given that this section deals with the Tribunal’s relevant obligations to give information to the applicant, no legal error is revealed (Khan v Minister for Immigration and Citizenship [2011] FCAFC 21; (2011) 192 FCR 173; (2011) 276 ALR 1 at [40] to [41]).
30. Before the Court the applicant did no more that press his claim to have been truthful in his account of his difficulties as an investigative journalist, and press his medical records as an explanation of his performance at the Tribunal hearing. For the reasons set out above neither submission assists the applicant in revealing jurisdictional error on the part of the Tribunal.
31. The applicant’s attempt to tender a “tape” of television reports of illegal actions in drug dealings in Brazil similarly does not assist him.
    I understood this to be a report which he had prepared while he was working as a television reporter. Such footage, or similar footage, was before the Tribunal and led to the Tribunal’s acceptance that he had been working as a “broadcast journalist” ([72] at CB 198).
    The applicant made no claim to the Court that it related specifically to the particular investigation central to his claim before the Tribunal.
32. But even if it had, the Court has no power to review the merits of his refugee claim and substitute its own factual findings for those of the Tribunal (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 136 ALR 481; (1996) 70 ALJR 568).

Conclusion

33. For the applicant to succeed before the Court, the Court would need to discern jurisdictional error in what the Tribunal has done. No such error is evident in what is before the Court. Therefore the application is to be dismissed.

I certify that the preceding 33Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !thirty-threethirty-three (33) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 7 September 2011