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MIGRATION - Review of RRT decision - where Tribunal was hearing applicant's case for the second time after Federal Court remitted the matter to RRT by consent - where Tribunal did not consider the applicant to be a credible witness - whether Tribunal erred in not accepting corroborative evidence - whether Tribunal considered whether the applicant had a well-founded fear of persecution based on his ethnicity and religion - where applicant failed to particularise some of his claims.

SZDJL v Minister for Immigration [2004] FMCA 632 (20 September 2004)

SZDJL v Minister for Immigration [2004] FMCA 632 (20 September 2004)
Last Updated: 20 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDJL v MINISTER FOR IMMIGRATION
[2004] FMCA 632



MIGRATION - Review of RRT decision - where Tribunal was hearing applicant's case for the second time after Federal Court remitted the matter to RRT by consent - where Tribunal did not consider the applicant to be a credible witness - whether Tribunal erred in not accepting corroborative evidence - whether Tribunal considered whether the applicant had a well-founded fear of persecution based on his ethnicity and religion - where applicant failed to particularise some of his claims.



Migration Act 1958 (Cth), ss.36(2), 424, 424A

Kamal v MIMA [2002] FCA 818

Applicant:
SZDJL



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1159 of 2004



Delivered on:


20 September 2004



Delivered at:


Sydney



Hearing date:


20 September 2004



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in Person



Counsel for the Respondent:


Mr T Reilly



Solicitors for the Respondent:


Sparke Helmore


ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1159 of 2004

SZDJL


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of Nigeria. He arrived in Australia on 5 May 2003. He was taken immediately into detention. On 22 May 2003 he lodged an application for a protection (class XA visa) with the Department of Immigration & Multicultural & Indigenous Affairs. On 30 June 2003 a delegate of the Minister refused to grant a protection visa and on 4 July 2003 the applicant applied for review of that decision. On 27 August 2003 the Tribunal affirmed the decision and on 12 September 2003 the applicant sought review of that decision by the Federal Court. On 10 December 2003, by consent before Branson J, the Federal Court set aside the decision and remitted the case to the Tribunal for consideration in accordance with law.

2. The Tribunal member who re-heard the case took the opportunity not only to consider the decision of the previous Tribunal but also to listen to the tape recording of the hearing. In addition, he invited the applicant to a hearing and received from the applicant's representatives a number of submissions. A letter was written to the applicant pursuant to ss.424 and 424A of the Migration Act on 20 January 2004 which was responded to by the applicant's migration agent on

17 February 2004.

3. The applicant's claim for Convention protection is based upon his Christian religion and Igbo ethnicity as well as his political association with an organisation known as MASSOB. This organisation is the successor to the Biafra Freedom Movement which rent Nigeria in a civil war during the late 1960s.

4. The applicant explained that he lived with his father in a village near the town of Kaduna where his father ran a Christian bookshop. In September 2000 whilst he was away from the shop collecting money a riot occurred in the town and his father was killed. The death of his father was the trigger for him to join the MASSOB movement for whom he worked until his departure for Australia in May 2003. The applicant believed that if he returned to Nigeria he would be sought out and harmed for his membership of MASSOB and produced documents to the Tribunal which indicated that his brother, who had provided him with certain proofs of his membership, had disappeared following that occurrence.

5. The Tribunal member, no doubt aware of the difficulties which had arisen in relation to the previous hearing, was painstaking in the manner in which he approached the claims made by the applicant. He explained his concerns about the credibility of some of those claims and the inconsistencies between evidence given at the first hearing and before him and also in written documents. It should noted here that the applicant has always claimed to be illiterate and unable to write any documents on his own behalf. But he agreed that documents which were written by him had been explained to him.

6. The Tribunal's decision is found between [CB 285] and [CB 320] and at [CB 319] it provides a summary which it is well to repeat.

"The Tribunal does not consider the applicant to be a credible witness. It has completely rejected his claims about him living and working in Kaduna, and about his father being killed there in religious riots. That finding destroys his claimed reason for belonging to MASSOB. His lack of knowledge about key events relating to MASSOB at the time he claimed to have been an active member is such that the Tribunal rejects his claim to have been such a member. The Tribunal considers that the various items and documents he has presented as evidence of his MASSOB membership have either been acquired or fabricated after his arrival in Australia, in an attempt to overcome the deficiencies in his evidence. The Tribunal does not accept that the applicant is wanted by Nigerian Government.

On all the evidence before it, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason."

7. The applicant was not represented before me and was therefore under a considerable disadvantage but there had been filed on his behalf an amended application dated 23 July 2004. This document appears to have been created by a person with some familiarity with the legal process, but if it was a legal practitioner that person has not had the courage to name him or herself. Needless to say, the applicant is unable to speak to it or indeed read it.

8. There are four grounds of jurisdictional error claimed and as Mr Reilly has pointed out in his helpful written submissions three of those grounds have clearly been taken from the grounds of the application that was before her Honour Branson J and the subject of the consent orders. But the grounds relate to that earlier decision and it is quite clear to me that this Tribunal as reconstituted was well aware of the difficulties with the first Tribunal's decision and made every effort to avoid repeating them. I am satisfied from my reading of the decision that the Tribunal most certainly considered the applicant's fear of persecution based upon his ethnicity. See [CB 312] -[CB 313]. In these pages the Tribunal also deals with the applicant's claimed fear of persecution on the basis of his religion which it is alleged not to have done.

9. The third ground claims that the Tribunal made an adverse finding concerning the authenticity of the applicant's MASSOB membership card based on photos in it and other documents submitted by the applicant. But in fact the matter is considered by the Tribunal between [CB 317] - [CB 318] where it says the following:

"If MASSOB did not intend addresses to be recorded for reasons of secrecy, the Tribunal would not expect their membership cards to include provision for his information to be included. The MASSOB membership card itself is very simple and could be reproduced without difficulty. When submitted to the Tribunal, it and its protective laminated covering and clip were in pristine condition, without any marks, despite its alleged use in the past. It could easily have been manufactured at the request of the applicant after he lodged his protection visa application. Given these factors, and the notorious ease (see independent evidence cited above) with which fraudulent documents can be obtained in Nigeria the Tribunal gives no weight to the MASSOB membership card as corroboration of his membership of MASSOB."

10. I think it is important to note that the Tribunal did not make any findings contrary to the applicant here, only that some purportedly corroborative evidence was not to be given any weight. I say this because it is not entirely clear from the grounds and reasons that the Tribunal put to the applicant the problems with false documents which it discusses at [CB 311]- [CB 312]. A claim that this should have been done was not made in the amended application. In any event it does not appear to me to have been determinative of the Tribunal's decision which advances a number of other reasons why it did not accept his membership of MASSOB, the most telling of which is that it does not believe that he joined MASSOB at all because it did not believe that his father had been killed in the manner alleged.

11. The fourth ground raised in the amended application refers to a number of cases quoted by the Tribunal in its decision which it alleges the Tribunal did not consider correctly. No particulars are given of the manner in which it did not utilise those decisions properly and in the absence of such particulars the claim is legally incomprehensible.

12. Because the Tribunal's view of the applicant's credibility is based at least in part on inconsistencies it is as well to remind the applicant that in Kamal v MIMA [2002] FCA 818 at [36] the Court held:

"It is not for the Court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal, or upon any such view to conclude that the Tribunal's assessment of the applicant's claims should not have been made. Those evaluative processes are for the Tribunal."

13. The applicant has failed in his attempt to satisfy the Tribunal of the criterion set out in s.36(2) of the Migration Act. He has had two opportunities to do this and has had the assistance of the well-meaning and helpful agents on both occasions. But the Tribunal has found against him on the basis of his credit and this court has no jurisdiction to reverse the decision on those grounds.

14. I dismiss this application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 22 September 2004
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