CBJ17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 969

Federal Circuit and Family Court of Australia

(DIVISION 2)

CBJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 969   

File number(s):

MLG 979 of 2017

Judgment of:

JUDGE TAGLIERI

Date of judgment:

21 November 2022

Catchwords:

 MIGRATION – protection visa application – application for judicial review – whether the Tribunal properly considered all evidence before it – whether the Tribunal member was biased – jurisdictional error not established – application for review dismissed  

Legislation:

Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 36(2A), 476

Cases cited:

CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132

CSR Ltd v Della Maddalena [2006] HCA 1 at [19], (2006) 80 ALJR 458

Fox v Percy [2003] HCA 22

Goodrich Aerospace Pty Ltd v ARSIC [2006] NSWCA 187 at [21], (2006) 66 NSWLR

Kopalapillai v MIMA (1998) 86 FCR 547

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99

Nguyen v Migration Review Tribunal [2008] FCA 524

Randhawa v MILGEA (1994) 52 FCR 437

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1

Ren v Jiang [2014] NSWCA 1

SCAA v Minister for Immigration [2002] FCA 668

Seivadurai v MIEA & Anor (1994) 34 ALO 347

SZEOQ v Minister for Immigration and Citizenship [2008] FCA 257

SZKQQ v Minister for Immigration and Citizenship [2008] FCA 242

SZSHV v Minister for Immigration and Border Protection [2014] FCA 253

VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102

WABC of 2002 v Minister for Immigration [2002] FCAFC 286

WZATH v Minister for Immigration and Border Protection [2014] FCA 969

Kneebone S, “The Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role?” (1985) 5 A J Admin L 78

Division:

Division 2 General Federal Law

Number of paragraphs:

36

Date of hearing:

15 September 2022 and 21 November 2022

Place:

Hobart

For the Applicant:

In person

Counsel for the First Respondent:

Ms Hodkinson

Solicitor for the First Respondent:

Sparke Helmore

ORDERS

MLG 979 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CBJ17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE TAGLIERI
DATE OF ORDER:	21 November 2022

THE COURT ORDERS THAT:

1.The application filed 1 May 2017 is dismissed.

2.The applicant pay the first respondent’s costs in the fixed sum of $5,000.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Taglieri

1. On 15 May 2017, the Applicant filed an application in the Court for a review of a decision of the Administrative Appeals Tribunal, Migration and Refugee Division, (“the Tribunal”) dated 1 May 2017. The application enlivens this Court’s jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth)(“the Act”).

   BACKGROUND

2. The Applicant is a non-citizen who applied for a Protection visa on 8 December 2015, which was refused by a delegate of the First Respondent on 23 March 2016.

3. The Tribunal conducted a hearing on 4 October 2016 with the assistance of a Mandarin interpreter. The Applicant represented himself at that hearing, and he gave evidence.

4. On 1 May 2017, the Tribunal affirmed the decision of the First Respondent’s delegate to refuse the Protection visa.

5. The Application for judicial review of the Tribunal’s decision came before me on 15 September 2022 for hearing. At the hearing, the Applicant represented himself with the assistance of a Mandarin interpreter.

   BASIS OF tRIBUNAL DECISION

6. The Tribunal concluded that it was not satisfied that the Applicant met the requirements of s 36 of the Act to be eligible for a Protection visa.

7. The claims put to the Tribunal are recorded at [11] and [12] of the Tribunal’s reasons for decision, being that the Applicant was discriminated against because of his ethnicity as a Chinese Malaysian and that if he returned to Malaysia he would be harmed by a loan shark to whom he owed money.

8. The Tribunal found ‘significant problems’ with the credibility of claims made by the Applicant.[1]  In short, the Tribunal did not accept the Applicant’s evidence about having taken out a loan and being physically threatened by a loan shark. It also rejected the Applicant’s evidence that he was discriminated against on the basis of his Chinese ethnicity.[2] As a consequence of rejecting the Applicant’s evidence, the Tribunal concluded that the statutory requirement of protection either on the basis of racial discrimination or complementary protection was not satisfied.[3]

   [1] Tribunal’s reasons for decision at [15] and [31].

   [2] Tribunal’s reasons for decision at [31].

   [3] Tribunal’s reasons for decision at [32] to [34].

9. The reasons for rejecting the Applicant’s evidence are set out in the Tribunal’s decision record and are as follows:

   (a)There was inconsistency in information provided in the Departmental file about when the Applicant was granted a tourist visa and his evidence that he applied for the visa on 28 March 2012 when the loan shark’s came to warn him and said they would kill him.[4] His explanation of the inconsistency was very different to his initial evidence and cast doubt on the truth of his evidence about what the loan shark had done on 28 March 2012 and fear of harm from him;[5]

   (b)Based on the foregoing, the Tribunal found that the Applicant was not threatened or cut by a loan shark, and that he fabricated the claim that this had occurred;[6]

   (c)The Applicant did not satisfactorily identify his need for the loan, how the claimed shortfall in his business spending occurred, or by what means the ownership of his house was transferred to the loan shark;[7]

   (d)The Applicant delayed in applying for a protection visa, and it would be reasonable to expect that a person coming to Australia as a result of the feared harm claimed by the Applicant would be motivated to seek information on how they could remain in Australia;[8] and

   (e)The Applicant’s evidence was undetailed and unconvincing in respect of the claimed loan, and he was untruthful in some of his evidence.[9]

   [4] Tribunal’s reasons for decision at [22] and [23].

   [5] Tribunal’s reasons for decision at [23].

   [6] Tribunal’s reasons for decision at [27].

   [7] Tribunal’s reasons for decision at [28].

   [8] Tribunal’s reasons for decision at [29].

   [9] Tribunal’s reasons for decision at [30].

   Court Review

10. A review to this Court is authorised by s 476 of the Act. In order to succeed and obtain the relief sought the Applicant needs to demonstrate jurisdictional error by the Tribunal. What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].

    Grounds of review

11. The application for review filed 15 May 2017 raises two grounds for review, being that the Tribunal:

    (2)Failed to take into account or give proper consideration to the cut on his neck and threats received by him as evidence about the Applicant’s fear of harm from the loan shark; and

    (3)Failed to take into account or give proper consideration to the debt and accumulated interest as evidence about the Applicant’s fear the loan shark will kill him.

    Applicant’S CASE

12. The Applicant relied on the Application for Review filed 15 May 2017 and his affidavit filed the same day.  He also sought to rely on a letter dated 6 August 2022 authored by him and sent to the Court Registry along with an attached photograph, which was accepted into evidence unopposed and marked Exhibit A-1.

13. I confirmed with the Applicant that he had received the Court Book filed by the First Respondent on 6 December 2017.  He stated that “due to limited English, I did not look in to details.”  Despite this, the Applicant agreed that the Court Book could be received in evidence. It was marked Exhibit R-1.

14. During the hearing, I explored the grounds for review with the Applicant and it became apparent that his contentions distilled into two simple propositions, being that the Tribunal had failed to properly consider his evidence about his fear of harm/being killed by the loan shark, Karim, for money he owes to him; and that the Tribunal member was biased. Regarding the bias complaint, it appears that the Applicant challenges the credit findings and reasons for rejecting his evidence.

15. The photograph in Exhibit A-1 was relied upon to corroborate the evidence given to the Tribunal about the Applicant being stabbed by the loan shark. The photo is said to depict the Applicant with a bandaged injury to his neck when he was treated in hospital in 2012 after being stabbed. The photograph does not bear a date on it, but the First Respondent did not dispute what it is said to depict.

16. None of the Applicant’s contentions on the judicial review relied upon the Tribunal’s rejection of a protection visa on the basis of being a refugee due to racial discrimination.[10]

    [10] Section 36(2)(a) of the Act.

    FIRST RESPONDENT’S CASE

17. The First Respondent contends that Ground 1, being the Tribunal’s alleged failure to consider the Applicant’s fear of harm from the loan shark, should fail. That is because it is apparent from [27] and [28] of the Tribunal’s reasons that the Tribunal did give consideration to the claim, but rejected it due to credit issues and inconsistencies with the evidence of the Applicant.

18. Further, the First Respondent says that the Tribunal considered the documents about the loan but found those to be inconsistent with the Applicant’s claims.[11]

    [11] Tribunal’s reasons for decision at [28].

19. Concerning Ground 2, the First Respondent submits that it is self-evident from [16] – [20] of the Tribunal reasons, that it considered the claim that the Applicant feared he would be killed, but this claim was rejected because the Tribunal did not accept that loan existed or that the Applicant had been threatened by the loan shark.

20. Counsel for the First Respondent addressed the photograph in Exhibit A-1. She contended that it was irrelevant, and that the complaint that the Tribunal did not take into account the Applicant’s evidence that he had been stabbed in the neck is not established in the absence of a transcript being put before the Court about evidence given about this.

21. Finally, the First Respondent contends that on a fair reading of the entirety of the Tribunal reasons, the allegation of bias is not made out.

22. The First Respondent contends that no jurisdictional error is established and the application for review should be dismissed.

    Applicant’s submission in reply

23. The Applicant disputed the suggestion that he had not given evidence about being stabbed in the neck and threatened by the loan shark. He maintained that he had given such evidence and said that, because he was in a face-to-face hearing, he had pointed to the scar on his neck and showed it to the member when giving his evidence. He added that the member had not considered this when making findings about his fear of harm from the loan shark.

    EVALUATION

24. Upon this judicial review, the Applicant only asserts jurisdictional error in the Tribunal’s approach to rejecting his claim for protection pursuant to s 36(2)(aa) of the Act. Namely, error relating to its findings about complementary protection based on whether there exists a real risk of significant harm within the meaning of s 36(2A) of the Act should he return to Malaysia.

25. Consequently, disposition of the application for review depends on whether the Applicant has persuaded the Court of jurisdictional error in the approach taken by the Tribunal and described at [8] and [9] of these reasons.

26. Ultimately, based on findings and reasons set out at [9], the Tribunal rejected the Applicant’s evidence about the loan and harm occasioned by the loan shark as true. That is, it rejected that the Applicant met the statutory criteria because of adverse credit findings.

27. It is obvious from the Tribunal’s written reasons and noted enquiries of the Applicant by the member during the hearing in the Tribunal,[12] that the member was troubled by the lack of detail or specifics about the basis for fearing harm and being killed because of a loan said to be owed to a loan shark. Many questions were asked by the member to elicit further information where evidence was considered to be limited and general.

    [12] Tribunal’s reasons for decision at [18] to [26].

28. Further, the same passages of the Tribunal reasons demonstrate that the member directly raised with the Applicant apparent inconsistencies in evidence before the Tribunal.  In each case, the Applicant is said to have replied to the suggestion that adverse credit findings may arise from this. 

29. The Applicant on this review has not challenged anything recorded by the Tribunal in its reasons about the inconsistencies drawn to the Applicant’s attention or the Tribunal’s reliance on those to reject his evidence about owing money to the loan shark whom he fears would harm him.

30. Instead, the Applicant has merely produced a photograph which may corroborate what he said occurred on 28 March 2012. The photograph was not put before the Tribunal, but evidence to the same effect was put to the member as noted at [17] of the Tribunal’s reasons. At [17], the Tribunal has noted evidence from the Applicant given at the hearing, that the loan shark came to his home on 28 March 2012 pursuing him for balance loan owed and “cut him on his neck” when he could not pay it. Further, that the Applicant demonstrated a scar on his neck said to have been caused by the cut. The Tribunal also noted that the Applicant had stated that the loan shark had splashed paint on his house.

31. However, the basis for rejecting the evidence were the inconsistencies noted above at [9] and nothing in the photograph or submitted to this Court alters the fact of the inconsistencies were found and led to adverse credit findings.

32. This Court is guided by statements of principle relating to credit findings by merits decision makers, such as those in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253, at [27] to [31] in the following terms:

    27.It may be accepted that the Tribunal, when assessing credit, needs to be careful as to the manner in which it proceeds: cf. Kneebone S, “The Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role?” (1985) 5 A J Admin L 78.

    28.A Court conducting judicial review of a decision of the Tribunal should itself also exercise particular care.  The task of making those findings has been entrusted by the Legislature to the Tribunal, and not the Federal Circuit Court or to this Court on appeal: Nguyen v Migration Review Tribunal [2008] FCA 524 at [15] per Logan J. Findings of credibility are findings “par excellence” entrusted to the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], (2000) 168 ALR 407 at 423 per McHugh J; SZKQQ v Minister for Immigration and Citizenship [2008] FCA 242 at [21] per Middleton J; SZEOQ v Minister for Immigration and Citizenship [2008] FCA 257 at [27] per Lander J.

    29.But credibility findings are susceptible to challenge on appeal in both civil and criminal proceedings.  Credibility findings made by an administrative decision-maker are also susceptible to challenge upon an application for judicial review.

    30.Credibility findings can undoubtedly be founded upon inconsistencies in evidence.  But such findings are not so confined.  Adverse findings as to credit may also be founded in part upon an assessment as to a witness’ demeanour.  But appellate courts when reviewing findings of fact made by a primary judge “have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses”: Fox v Percy [2003] HCA 22 at [30], (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ. There has been a shift in more recent years “to some degree from the more extreme judicial statements commanding deference to the findings of primary judges said to be based on credibility assessments”: CSR Ltd v Della Maddalena [2006] HCA 1 at [19], (2006) 80 ALJR 458 at 465 per Kirby J (Gleeson CJ agreeing). “Great care”, it has also been said, “must be exercised in making demeanour findings … where a witness is from a different cultural and ethnic background to that which the judge is familiar”: Goodrich Aerospace Pty Ltd v ARSIC [2006] NSWCA 187 at [21], (2006) 66 NSWLR 186 at 190 per Ipp JA (Mason P and Tobias JA agreeing). “The assessment of cross-examination on credit through an interpreter is often especially difficult”: Ren v Jiang [2014] NSWCA 13 at [13] per Leeming JA. Adverse findings as to credit may also be founded upon matters which may not appear on a transcript of evidence. A witness who only answers a question after consultation with another may be viewed as a witness lacking a frankness to give his own account of events and to leave it to others to provide their own independent account.

    31.In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny.   Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:

    [78]It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.

33. Ground 1 of the application for review is not made out as the Tribunal did consider the fear of harm from the loan shark who is said to have cut the Applicant’s neck because he could not repay a loan.  It rejected the claims as true based on considerable inconsistencies not adequately explained. The Applicant has not persuaded me that Tribunal’s demonstrates jurisdictional error in the way it approached making findings about credit.

34. During oral submissions, the Applicant contended bias on the member’s part. This contention is not substantiated by the detailed written reasons of the Tribunal which are logical and reasonably open based on material evidentiary inconsistencies. The mere fact that the Tribunal rejected the Applicant’s evidence does not establish bias,[13] and the weight to be given to evidence is a matter for the Tribunal.[14]   Superior courts conducting judicial reviews and appeals from these have commonly accepted that “Robust and forthright testing of the appellant’s claims by the Tribunal… does not sustain a finding of apprehended bias”.[15]   

    [13] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3].

    [14] WZATH v Minister for Immigration and Border Protection [2014] FCA 969; CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132.

    [15] SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 per Barker J at [17]; See also: NAOX v Minister for Immigration and Citizenship [2009] FCA 1056 at [41] to [43] per Spender J; SZKLK v Minister for Immigration and Citizenship [2008] FCA 1125 at [47] per Logan J; SZOEV v Minister for Immigration and Citizenship [2010] FCA 1045 at [18], 117 ALD 524 at [527] per Flick J.

1. Finally, it should be noted that the Tribunal was not required to accept uncritically any or all of the Applicant’s evidence, nor was it required to have rebutting evidence available to it before rejecting his evidence.[16]

   [16] see Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Seivadurai v MIEA & Anor (1994) 34 ALO 347 at [348] per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

2. The Application for review should be dismissed as no jurisdictional error has been established on the part of the Tribunal below. This conclusion should not be taken to mean that the court considers the Applicant was not credible. Instead, the conclusion is reflection of the limited nature of the Court’s task on a judicial review, which does not entail determining the merits of the Applicant’s claims of protection.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri.

Associate:

Dated:       21 November 2022