SZHPI v Minister for Immigration and Citizenship - [2008] FCA 306 - FCA 2008 case summary — Zoe

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SZHPI v Minister for Immigration and Citizenship

[2008] FCA 306

Federal Court of Australia|2008-03-11|Before: Branson J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2008-03-11

Before

Branson J

Source

Original judgment source is linked above.

Judgment (12 paragraphs)

[1]

INTRODUCTION 1 The appellant claims to be entitled to a protection use under s 36 of the Migration Act 1958 (Cth) on the basis that he has a well-founded fear of persecution in Lebanon, his country of nationality, on the ground of religion and political opinion. He claims to be a Christian affiliated with the Church St George, Tripoli, North Lebanon and to have experienced a violent attack on his home by fanatic Islamic terrorists. 2 His claim was rejected by a delegate of the Minister and by the Refugee Review Tribunal ("the Tribunal"). The appellant gave evidence before the Tribunal. The Tribunal member regarded his evidence in important respects, namely his places of residence and employment in Lebanon, as "internally inconsistent, implausible, and so far fetched as to be fanciful". 3 The appellant unsuccessfully sought judicial review by the Federal Magistrates Court of the decision of the Tribunal.

[2]

GROUNDS OF APPEAL 4 The appellant's appeal to this Court from the judgment of the Federal Magistrates Court is brought on two grounds. The first ground is that the Federal Magistrate erred in finding that the Tribunal had not applied the wrong test in determining his credibility. The particulars of this ground are that the Tribunal failed to apply the ordinary meaning of the terms "reside" and "live" and therefore applied the wrong test in determining the credibility of the appellant. The second ground is that the Federal Magistrate should have found that the decision of the Tribunal was vitiated by bias. 5 I have concluded for the following reasons that the appeal should be dismissed.

[3]

Evidence concerning residence 6 A transcript of the appellant's hearing before the Tribunal has been placed before the Court. It discloses that at an early stage of the hearing the Tribunal member asked the appellant where he resided in Lebanon. The appellant nominated a city and a street name. The transcript then records the following exchange: Q. And how long did you live at that address? A. Six years. Q. So since 1999; is that correct? A. Yes. Q. And did you reside there continuously? A. Continuously for six years. Q. Do you understand what I mean by 'continuously'? A. Do you mean I live there and didn't move somewhere else? Q. Yes. A. Yes, I never leave the place. Q. So you ate there, you slept there? A. I was there until the problem happened, and I was there. Q. So you were there from 1999 until you came to Australia in 2005? A. Yes Q. So you ate there, you slept there, you lived there? I want to be absolutely clear about this. A. After this problem happened I didn't stay at home. Q. So did you reside there - sorry, now you are confusing me. You lived there from 1999 until 2005; is that correct? A. Yes. 7 I interpolate that it was for the Tribunal to determine, if it considered it of relevance, whether the appellant sought to change his evidence about where he lived during the course of the above exchange. It cannot be determined by reference to the transcript alone whether, for example, part way through the above exchange the appellant realised that his earlier answers would be difficult to reconcile with the claims made by him in his visa application so he decided to modify them. An alternate possibility is, as was argued on his behalf on this appeal, that he regarded himself as living at the address nominated by him even after he ceased to "stay at home". 8 Shortly thereafter the Tribunal member asked the appellant about a "terrible incident" to which he had referred in his visa application. The appellant's evidence to the Tribunal identified the time of this incident as October 2002. After exploring the details of this alleged incident the transcript of the Tribunal hearing records the following exchange between the Tribunal member and the appellant: Q. So since October 2002 has anybody tried to harm you? A. Plenty of times incidents happen. I left home as a result. They threatened me and they threatened my dad. They went to his place where he works and they threatened him as well. Q. Okay, this is where I have a problem. So you said that you left home? A. Yes. I left home - what I meant is I went to the mayor's house, the priest's house, I went to some of my friends' homes. Q. So you stayed in different places? A. Yes, in different places so that nobody can harm me there. Q. Earlier on in this hearing I spent a lot of time talking to you about where you were living between 1999 and 2005 when you came to Australia. I asked you where you lived and you told me where you lived, and I asked you if you lived there continuously, and you said yes, you lived there continuously, you ate there, you slept there until you came to Australia. So now you are saying that you didn't live there continuously? A. But I told you there's an incident. Q. But I asked you about where you were living and where you were working and what you said to me was that you were living at the same address continuously from 1999 until 2005? A. Until 2002, until the incident happened. Q. No, I asked you if you were living there until you came to Australia and you said yes. A. I told you, the interpreter, to tell her about the incident. Didn't you tell her? Q. No, look, you mentioned an incident. I said to you where were you living between 1999 and 2005 when you came to Australia, and you said you were living there continuously. I asked - I made sure that you understood what I meant. A. But I did tell the interpreter that until 2002, until that incident - did you then tell the member of the court? I didn't think - I don't think that, member, this was uttered - Q. You said that you confirmed that you were living - according to my record you confirmed that you had resided at the address you gave at Tripoli Street from 1999 until you came to Australia. In fact, you said you resided there for six years until you came to Australia. A. I said that? 9 I interpolate again that it cannot be determined by reference to the transcript alone whether during the above exchange the Tribunal member overlooked the appellant's earlier answer to the effect that he did not stay at home after the problem happened. An alternate possibility may be that the Tribunal member's "problem" arose from both the appellant's earlier answer to the effect that he didn't stay at home after the incident happened and his later expanded evidence to the same effect.

[4]

Consideration 10 The written reasons for decision of the Tribunal reveal that it did not accept the appellant's evidence about having "left home" after the alleged incident in October 2002. Findings concerning the appellant's credibility are findings of fact and thus plainly within the jurisdiction of the Tribunal (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at [67]). Unless an error of law is shown to infect the finding it is not open to judicial review; there is no error of law involved in merely making a wrong finding of fact (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [137]). 11 The appellant's notice of appeal contented that the Tribunal's findings concerning the appellant's credibility were infected by an error of law in that the Tribunal applied the "wrong test". The application of the "wrong test" was particularised by reference to the ordinary meaning of the words "reside" and "live" and to the alleged failure of the Tribunal to consider the whole of the evidence. 12 I am not satisfied that the Tribunal failed to apply the ordinary meaning of the words "reside" and "live". As the passage from the transcript set out in [6] above reveals, the Tribunal went to some length to explore what the appellant meant when he said that he lived for six years at the address that he gave. It is, of course, true that one can live at the one address for a continuous period of time without sleeping there every night. It is also not to be overlooked that the appellant gave his evidence through an interpreter. For that reason it would have been inappropriate for the Tribunal to place weight on fine nuances of meaning without making further enquiry to clarify the precise import of his evidence. However, it was for the Tribunal to form a view, having regard to the totality of the evidence given by the appellant, what weight it should attribute to the fact that the appellant initially said, in effect, that he lived continuously at a particular address and did not move anywhere else but subsequently said that he left home as a result of the alleged October incident. 13 Nor, in my view, can it be demonstrated that the Tribunal failed to look at the evidence as a whole to determine the veracity of the evidence given by, and thus the credibility of, the appellant. The transcript reveals that it was the appellant, not the Tribunal, who first identified six years as the period the appellant lived at the address given by him. When asked if he resided there continuously he answered "continuously for six years". It was the appellant who clarified that he thereby meant "live there and didn't move somewhere else" and that he "never left the place". It was only thereafter that the appellant made reference to a "problem" happening. 14 In the circumstances it was open to the Tribunal to find that the appellant's later evidence that he left home as a result of the October 2002 incident and stayed thereafter at different places so that no-one could harm him was not adequately explained by his earlier reference to a "problem". Similarly it was open to the Tribunal to find that the appellant's evidence that he lived at the one address continuously from 1999 to 2002 was inconsistent with his earlier evidence that he had lived at that address continuously for six years. 15 It would have been desirable for the Tribunal to deal explicitly with the earlier qualification that the appellant placed on his evidence and its failure to do so leaves one with a sense of unease. Nonetheless, the authorities make it clear that the Tribunal is not required to deal in its written reasons for decision with every piece of evidence that might be thought relevant (see particularly, the authorities cited by Lindgren J in SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 and Jacobson J in Singh v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1113). The appellant placed reliance on WAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 319. As Jacobson J explained in Singh at [25], WAFP is not to be understood as having elevated a failure to refer to relevant evidence to a ground of jurisdictional error; it was concerned with relevant material which it described as so fundamental as to go to jurisdiction. The appellant's answers in this case do not have this fundamental character. 16 I therefore conclude that the learned Federal Magistrate rightly dismissed the appellant's ground of review concerning the Tribunal's credibility finding. The first ground of appeal fails.

SZHPI v Minister for Immigration and Citizenship

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Judgment (12 paragraphs)

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