SZIGH v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT BUCHANAN J: 1 The issue on which this judgment ultimately turns arises from a statement by the Refugee Review Tribunal ('the RRT') constituted under the Migration Act 1958 (Cth) ('the Act') that it preferred to rely, for information about conditions in Algeria, on information obtained through its own researches than on material supplied by the appellant. One report referred to, and relied upon by the appellant was actually the current and most up to date version of a report relied upon by the RRT. Did the RRT's unexplained refusal to treat the latest version of the report as the most relevant amount to jurisdictional error on its part? 2 The appellant arrived in Australia on 12 July 2005 and applied for a protection visa on 11 August 2005. His passport had been issued in Algeria on 8 August 2004 and was valid for five years. He said that he had never previously travelled outside Algeria. On 15 September 2005 a delegate of the first respondent ('the Minister') refused to grant a protection visa. The appellant sought a review of the delegate's decision by the RRT. The RRT affirmed the delegate's decision on 10 January 2006 ('the first RRT decision') but on 24 May 2007, by consent, the Federal Magistrates Court of Australia ('the FMCA') set aside the decision of the RRT and remitted the matter for further consideration. On 15 May 2008 the RRT (differently constituted) again affirmed the delegate's decision. On 12 June 2008 the appellant filed an application in the FMCA seeking judicial review of the second decision of the RRT. In the latest proceedings before the FMCA the appellant was represented by counsel. The grounds of the application for judicial review were amended a number of times. In a judgment delivered on 28 August 2008 the FMCA rejected the grounds advanced in the final amended application for judicial review (SZIGH v Minister for Immigration and Anor [2008] FMCA 1203). From that judgment the appellant has appealed to this Court. 3 Some opening observations are appropriate. First, an applicant for a protection visa must assume the task of persuading the relevant decision-maker that a proper foundation exists for the grant of the visa. A decision-maker is not obliged to uncritically accept every assertion made by such an applicant. Secondly, the merits of a decision on whether a protection visa should be granted are shielded by the Act from judicial review. Neither the FMCA nor this Court may substitute its own view of the merits of any application for a protection visa for that of the RRT. Thirdly, the only basis upon which a decision to refuse a protection visa may be successfully challenged in the FMCA or in this Court is if jurisdictional error appears from the decision or processes followed by the RRT. 4 In the present case the appellant was not believed. There were a number of reasons why that was so. Prior to the second hearing before the RRT an email purporting to be from the appellant's brother was sent to the RRT. That email alerted the RRT to the fact that the appellant had sought refuge in Thailand in 2000 and made further allegations against him. Although the RRT decided it was not in a position to substantiate the further allegations and therefore decided not to take them into account it did make enquiries of the office of the United Nations High Commissioner for Refugees ('the UNHCR'). One matter disclosed by those enquiries was raised with the appellant in an oral hearing conducted before the RRT on 6 December 2007. The RRT in its decision, refers to it in the following terms: I asked him about the claim in his visa application that he had never been convicted for a crime or offence. Initially, he said that he had not, but, when I said he was not telling me the whole story, he admitted that he had been convicted in Thailand of using false documents and had been sentenced to 18 months imprisonment. After he served his sentence, he applied to UNHCR for protection. The charge of using false documents arose from the fact that, on arrival in Bangkok, he had obtained a new and false passport in an attempt to reach Canada. His first port of call was Hong Kong, where the false passport had been discovered and he had been sent back to Thailand, where he was arrested. 5 The appellant's response to the RRT appears also to have falsified his response in his application for a protection visa where he indicated that he had not travelled outside Algeria prior to coming to Australia. 6 Other inconsistencies were drawn to the appellant's attention in a letter written by the RRT on 7 December 2007, the day after the hearing. In that letter the following was said: 'You are invited to comment on/respond to information that the Tribunal considers would, subject to any comments/response you make, be the reason, or a part of the reason, for affirming the decision that is under review. The particulars of the information are: • The statement you made to the UNHCR in Bangkok in July 2001 differs in important respects from what you have claimed during your application for protection in Australia. Specifically, Ø The family member you claim was killed by terrorists was, according to what you told the UNHCR, the son of an aunt, that is, a cousin, not a nephew, your sister's son, as you now claim. Ø According to your statement to the UNHCR, the statement at his funeral critical of terrorists was made by your father, not yourself. Ø In your statement to the UNHCR, you claim that the attempt to steal your truck in March 1999 was reported in the local press, which described you as a hero. This element of the story has not been repeated in Australia. Ø In your statement to the UNHCR regarding this incident, you said you were able to prevent the robbery of your truck. In your statement of 5 December 2007, you claim it was stolen. Ø In your statement to the UNHCR, you referred to two incidents in which you were followed by unidentified men at night in September and November 1999. In your statement to the Tribunal of 5 December 2007, you refer to only one. Neither of these incidents were mentioned in your primary application. Ø In your statement to the UNHCR, you stated that your grandfather could not be buried in the communal cemetery. In Australia, you have stated that your father could not be buried in the communal cemetery. Ø In your statement to the UNHCR, you claimed that all of your family members were Catholic, except your mother. In the statement attached to your primary application, you claimed that your brothers were Christian and that 3 sisters were Muslim, the remainder being Christian. • The priest who gave evidence at your hearing stated that you converted to Catholicism at Easter time this year. He told the presiding Member that, previously, you had no faith. However, you told the presiding Member of the Tribunal at your hearing on 17 November 2005 that you converted to Christianity in August 2004. You had told the UNHCR in Bangkok that you and your siblings were Catholic by birth. In your primary application, the statement attached to it has an entire section headed "My Christian Religion". • The statement in Attachment 10A to your adviser's submission of 9 July 2007 is not consistent with the Statutory Declaration sworn by you on 5 December 2007 in that you stated in the Statutory Declaration that, a few weeks after lending your house to a group of Christians to hold meetings, the Christians left your village because they started to install a chapel in another village, whereas the document referred to is dated 3 April 2006 and states that you have lent your house to a group of Christians to teach and preach Christianity since 2 January 2003. There is no reference in the document to this arrangement terminating for any reason. At hearing on 17 November 2005, you stated "the house I gave up has become a church" without indicating that the arrangement had terminated. • At different times, you have referred to the house which was sued as a church as being "at the end of the village" (hearing 17 November 2005) or "in the centre of my village" (the statement attached to your primary application). This information is relevant to the review because: A. 1. The Tribunal may form the view that you are prepared to say whatever you believe may, at the time, help your application, irrespective of the truth. 2. The Tribunal may form the view that you have formalised your adherence to the Catholic faith recently, only after you failed to satisfy the presiding Member of the Tribunal previously constituted that you were in fact Christian and that you have done so only to further your protection visa application. 3. Your previous claims - to UNHCR and in your primary application - to be Catholic/Christian - as are most of your family - are not consistent with your recent claim that your mother held a party to celebrate your baptism. 4. The Tribunal may form the view that you are not truthful when you claim that you changed the dates on which your relative was killed only because you feared you would not be believed when you said that it was one of the reasons you feared persecution. The Tribunal may believe, on the contrary, that you realised you had to change the date on which this event occurred after the Tribunal discovered that you had claimed protection in Bangkok and made it clear to you that it would seek information from UNHCR as to what you had then claimed. 5. The Tribunal may form the view that you have merely "updated" the claim made to the UNHCR that your grandfather could not be buried in the communal cemetery, not claiming that this happened to your father and may not be prepared to accept either version. B. The above may form the reason or part of the reason for the Tribunal to decide that your claim to fear persecution is not well founded.' 7 Various responses were made by the appellant through his lawyers. The RRT's conclusions were expressed in the following way: 40. I accept that the applicant is a citizen of Algeria. 41. I do not accept most of the applicant's other claims. 42. With regard to the e-mail which alerted the Tribunal to the fact that the applicant had passed through the hands of UNHCR in Bangkok, that allegation provided to be true. The applicant's date of birth mentioned in the e-mail was also correct. However, the Tribunal received no reply to an e-mail sent to the author of the e-mail. I considered making contact with the alleged author by telephone, but decided, in light of all the material before me, not to do so. It seemed to me that the applicant's brother was hardly likely at this point in time to state that he had written what was contained in the letter. If he did, he could say that it was true - which would be immediately fatal to the applicant - or he could say it was false - which would still leave me with a decision to make as to his credibility, in light of all the other material before me. I decided, therefore, that the safest and fairest procedure was to disregard the allegations, which will therefore play no part in the analysis which follows or in the decision recorded here. 43. Despite the evidence of the witnesses as to the applicant's good character, the many inconsistencies in his claims over time fatally, in my view, undermine his general credibility. Some of the inconsistencies may, as he has claims, arise from language difficulties. I will disregard those. Others are not so easily explained, however. They have all been drawn to his attention. The principal ones are the following: (i) The family member the applicant claimed to UNHCR was killed by terrorists was his cousin - the son of an aunt; he claimed to the Department and to the Tribunal it was his nephew, the son of his sister. He also initially changed the dates on which these attacks were said to have happened. (ii) The statement criticising the terrorists was, according to the UNHCR claim, made by his father; according to his claims to the Department and to the Tribunal, it was made by himself; (iii) His descriptions to UNHCR, on the one hand, and to the Department and the Tribunal on the other, of the incident where his house was attacked by terrorists and an attempt made to steal a vehicle contain significant differences of detail; (iv) Similarly, there are differences in his claims at different times about being followed by unidentified men; (v) Statements made about the problems burying his grandfather and his father vary over time. He claimed to UNHCR that his grandfather could not be buried in the communal cemetery. He claimed to the Department and to the Tribunal that it was his father. However, even here, there were discrepancies. His Statutory declaration of 5 December states that his father could not be buried "in the family plot near the Mosque". At the hearing before the Tribunal previously constituted, according to the transcript submitted to the present Tribunal by the applicant, the Muslim community objected to applicant's father being buried about a hundred metres from the applicant's house, near where his mother was buried. Nevertheless, he was in fact buried there. (vi) The applicant's claims over time as to his religion have not been consistent. The problem was raised explicitly at hearing and clearly set out in the Tribunal's letter of 7 December 2007. 44. I have considered carefully the responses of the applicant and his adviser, which were supported by statutory declarations by the applicant and other documents, but I am not persuaded that their arguments overcome my concerns … 8 The RRT also said: 46. It is true, as the applicant's adviser points out, that the applicant has consistently claimed to be Christian and Catholic. However, the details of his claims in this respect have varied considerably over time - the date of his conversion, the number of Christian families in his village, the circumstances in which one of his family's houses was used for Christian services. He also showed to the Tribunal previously constituted a poor knowledge of the church to which he claimed to belong. 47. In the circumstances, I am not satisfied that the applicant was Christian in Algeria. I am not prepared to give weight to documents recently submitted indicating the contrary, given my serious concerns about he applicant's credibility in general, including in particular on this issue. Neither am I satisfied that the applicant has formalised his adherence to the Catholic faith while in Australia other than in furtherance of his claims to protection. In addition to my general concerns regarding his credibility, I am concerned that this religious activity in Australia appears to have largely followed his appearance before the Tribunal previously constituted, when he was unable to satisfy the presiding Member as to the genuineness of his claim to be Christian. In addition, he has not explained to my satisfaction the evidence of his priest that, prior to his conversion at Easter 2007, he had no faith, which contradicts much of his present and earlier claims. I will accordingly disregard this activity. 9 The RRT then dealt with a number of "independent" claims. It also made an assessment of country information submitted on behalf of the appellant and other country information in the possession of the RRT. Some further mention will need to be made of the way in which that information was assessed. 10 One further important finding was expressed as follows: I do not accept any of the applicant's claims regarding attacks on him or his family by terrorists. He has no credibility on this subject, his evidence over time being riddled with inconsistencies. I have nevertheless considered whether, for reason of his ethnicity, he might have a well founded fear of persecution by Islamic militants, but find that country information which I accept does not indicate that, merely be virtue of being Berber, there is a real chance that he would be harmed by militants. 11 I earlier referred to the fact that the grounds of the appellant's application for judicial review in the FMCA were amended on a number of occasions. The grounds which found final expression, and which were dealt with in the judgment of the FMCA, were stated as follows: 1. [Deleted] 2. The RRT failed to attain, or failed to exercise, jurisdiction, by reason that the RRT erred in law in failing to take into account a relevant consideration Particulars The RRT stated (CB 517, [50]): "While I have considered carefully country information submitted by the applicant, I prefer the assessment contained in the two reports of the United States State Department quoted above" The RRT ignored the country information submitted by the applicant (the International Religious Freedom Report which 2007 released on 14 September 2007, by the US State Department, Bureau of Democracy, Human Rights and Labour on Algeria; which information was later in time and also released by the same US State Department including: (CB 411.2): :During the reporting period, terrorist violence based on religious extremism increased after the GSPC was recognized by al-Qa'ida in September 2006 and changed its name in February 2007 to al'Qa'ida in the Islamic Maghreb (AQIM)". 3. The RRT failed to attain, or failed to exercise, jurisdiction, by reason that the RRT erred in law in constructively failing to exercise jurisdiction in (a) misconceiving its duty, (b) failing to apply itself to the question of whether the applicant was a person owed protection obligations in terms of para 36(2)(a), Migration Act 1958, and/or (c) acting capriciously and/or irrationally, in relation to "country information submitted by the applicant". Particulars Repeat Particulars at Ground 2. 12 The RRT decision on this aspect of the appellant's case was as follows: 50. While I have considered carefully country information submitted by the applicant, I prefer the assessment contained in the two reports of the United States State Department quoted above. In coming to that conclusion, I examined also reports in the French language (a language with which I am very familiar) of the activities of Christians in Algeria. For example, Valeurs Actuelles, in 2004, contained an article entitled "Avec les chrétiens de Tizi Ouzou, (With the Christians of Tizi Ouzou) which included the following statement (my translation): "The rejection of Islam is a reality in Kabylie and, I am told, is even gaining in the so-called "Arab" Algeria, beginning in the large cities, such as Algiers and Oran." (Emphasis added) 13 The FMCA concluded that the statement by the RRT that it had carefully considered the material relied upon by the appellant, but that it preferred the assessment in other reports, did not support a conclusion that the material relied upon by the appellant was ignored. The assessment of that material, so far as it bore upon the merits of the appellant's application for a protection visa, was certainly a matter for the RRT and is not a matter for the FMCA or for this Court. However, it will be necessary to return to this issue in more detail as the opening sentence of paragraph 50 requires closer examination having regard to the material in question. 14 The third ground relied upon before the FMCA was formulaic in nature and added nothing to the appellant's claims. 15 The appeal to this Court stated grounds rather more expansively in the following terms: 1. The Court erred in finding ([29]) that the Tribunal "did not ignore the 2007 information" Particulars The appellant pleaded (Ground 2 of Review Application) that the RRT failed to take into account a relevant consideration, being particularised information in the 2007 Report. The RRT expressly eschewed taking that information into account ("I prefer the assessment in the two reports (2006) of the United States Department quoted above") and the RRT thereby "ignored" the information in the 2007 Report. 2. The Court erred in finding ([35]), in the context of the information particularised in the 2007 Report (Ground 2 of Review Application), that "that information could not have affected the Tribunal's determination that the Applicant did not have a well-founded fear of persecution for a Convention reason". Particulars The Tribunal could have been satisfied that he increase of violence, apparently predicated upon al-Qaida's association with the GSPC, could have placed the appellant at risk post September 2006/February 2007, if not at risk before those dates, on account of his "westernisation". 3. The Court erred in finding ([41]) that the appellant "in relation to particular 15.3.8 seeks to articulate further social groups, again, without evidence of the existence of any such social groups or evidence of persecution by reason of membership of that social group" Particulars The social group relevant to the "westernisation" claim was identified as a group at risk of persecution in the 2006 Reports (Judgment, [25]) 4. The Court erred in finding ([44]) that "there was no country information before the Tribunal that suggested that State protection would not be afforded to the Applicant if he were attacked in Algeria by reason only of being a non-fundamentalist Muslim extremist" Particulars The 2007 Report stated that "approximately 100 thousand to 150 thousand civilians, terrorists and security forces have been killed during the past 15 years. Islamist extremists have issued public threats against all "infidels" in the country. Both foreigners and citizens, and have killed both Muslims and non-Muslims" (Judgment. [15.3.5]) 5. The Court erred in finding ([22]) that "Pursuant to s.91R(3) of the Act, the Tribunal is obliged to disregard that conduct" (i.e. "conduct" as referred to in Judgment, paras 15.1, 15.2, 15.3.1, 15.3.3 and 15.3.7) Particulars The RRT (Reasons for Decision; [47] confined the application of s.91R(3) to matters of baptism and practice of Catholicism by the appellant in Australia and not to other notions of "westernisation" raised by the appellant and/or acknowledged by the RRT. 16 At the hearing of the appeal Ground 5 was not pressed. Instead, leave was sought to rely upon a new Ground 6 in the following terms: 6. The Court erred in not finding that the Tribunal had failed to exercise its jurisdiction by failing to make a finding or findings, as implicitly, if not expressly, required by ss.91R(3). Particulars The RRT (Reasons for Decision; [47]) confined the application of s.91R(3) to matters of baptism and practice of Catholicism by the appellant in Australia and not to other notions of "westernisation" raised by the appellant and/or acknowledged by the RRT The Tribunal made no finding as to conduct engaged in by the appellant in Australia The tribunal made no finding as to whether the appellant engaged in that conduct otherwise than for the purpose of strengthening the appellant's claim to be a refugee.