SZCOS v Minister for Immigration
[2007] FMCA 1471
•13 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCOS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1471 |
| MIGRATION – RRT decision – Malaysian claiming political persecution – disbelieved by Tribunal – no jurisdictional error found – application dismissed. |
Federal Magistrates Court Rules 2001 (Cth), r.21.02(2)(c)
Migration Act 1958 (Cth), ss.424A, 474, 476
Fox v Percy (2003) 214 CLR 118
Minister for Immigration & Multicultural Affairs v SZFDE (2006) 154 FCR 365
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
MZXDH v Minister for Immigration & Multicultural Affairs [2007] FCA 719
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SAAK v Minister for Immigration & Multicultural Affairs (2002) 121 FCR 185
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188
| Applicant: | SZCOS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG3384 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 13 August 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Silva |
| Solicitors for the Applicant: | Silva Solicitors |
| Counsel for the First Respondent: | Mr J Smith |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs as agreed or as taxed in accordance with Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation under O.62.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3384 of 2006
| SZCOS |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 17 November 2006, which has been set down for a final hearing under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 September 2006 and handed down on 24 October 2006. The Tribunal affirmed a decision of a delegate made on 10 July 2003, refusing to grant a protection visa to the applicant.
An earlier decision of the Tribunal was set aside by consent order, but the grounds for that order do not appear in the material before me, nor does the earlier Tribunal’s decision.
Under s.476 the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474, so that I do not have power to remit the matter to the Tribunal, unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed, nor whether he qualifies for a protection visa or any other permission to stay in Australia.
The applicant is a national of Malaysia who arrived in Australia on a visitor’s visa in June 2003, having previously visited Australia between June and September 2002. An application for a protection visa was lodged on 4 July 2003 by a migration agent.
In a statement in support of his application, the applicant claimed to have become a supporter of opposition parties in Malaysia as a result of the treatment of Mr Anwar Ibrahim and several other political figures. He claimed:
I was with a group of opposition party members near Jalan Tunku Abdul Rahman in year 2001 protesting the trial of Mr Anwar at the nearby High Court, opposite the Dataran Merdeka – Independence Square ground. I just went to lend moral support and make up the numbers gathered before the trial. Already 3 vans of blue shirted riot police were lined up across the street near the St Mary’s Cathedral.
As Mr Anwar slowly alighted from his black maria - prison van, we swayed forward with our banners and placard to voice support for him. We didn’t do this brazenly and mindlessly, but with a good cause i.e. the world’s press was gathered there and more so we feared that without visible opposition, a rubber stamp judgement would be laid on Mr Anwar without any grounds for his defence. As it was the judge was a pro‑government one installed at the whim of the ruling party in power.
Suddenly a platoon of the special police force surged forward and started punching, kicking and beating us randomly. A few of us were badly bloodied and injured by the wild swings of the baton and kicks and punches rained on us. I was kicked in the stomach and shoved to the ground. A truck appeared and sprayed jets of water and repeated bouts of tear‑gas fired at the other section of the crowd. A sizable number of us numbering about approximately 100 were bundled into the police truck and taken to Jalan Bandai Police Station. For the whole evening and night we were detained in a cell mass‑packed and crammed. Mind you not a drop of water or food was given to us. I didn’t even have my blood pressure tablets with me.
The next morning the authorities recorded our particulars and released us at 12 noon. We were warned we will be scrutinised and be checked at our workplace. Suddenly on beginning of 2002 around the month of March I was dismissed from my post of manager of the banquet dept of [hotel] K.L. I later learnt enquiries had been made about me from the hotel authorities.
The applicant then referred to coming to Australia, and returning home in 2002. He then worked with his brother. He claimed that his brother received calls from the police authorities, and that the applicant was called in for questioning. He claimed to have been placed in detention in a police station for two months, and to have been repeatedly questioned “as to why I was adamant in supporting the reformation movement”. He claimed:
After 2 months I was released and warned that any further political activities will result in being made to banish to an island penal colony or banished to another state without any right of legal appeal. In view of this critical situation I decided to come to Australia to escape the constant harassment and lack of employment due to the authorities interfering with the employer with whom I wish to join.
…
Furthermore, I am a Christian of a minority race, whereas most of the police authorities are zealous Muslims who are subtly and indirectly anti‑Christian and anti‑minority, and it is fired up by religious Islamic fundamentalism.
A delegate refused the application, referring to the absence of independent and verifiable evidence to support his claims. The delegate said: “I do not accept that the applicant’s claims represent the reality of his situation, and I do not accept them as being based in fact”.
On appeal, the applicant presented material corroborating his education and employment in the hotel industry, and some country information concerning relevant events and the situation in Malaysia generally, but did not provide any corroboration of his claims of persecution.
The applicant attended two hearings of the Tribunal, one held by the Tribunal as originally constituted on 11 December 2003 and the second held by the Tribunal as reconstituted on 1 June 2006. On the latter occasion he attended with his present solicitor. At both hearings, he maintained his account of an attendance at a demonstration in June 2001 when Anwar Ibrahim was brought to a court. He also maintained the other aspects of his claimed history.
A transcript prepared by Auscript from the tapes of the second hearing has been tendered by the applicant. This has some obvious difficulties of transcription. For example, the first three lines at the top of p.22 appear to be transposed or inserted out of context, and an extensive part of the evidence given by the applicant has been omitted at a tape changeover identified at p.25. These problems, and some other problems of transcription, are revealed in a transcript prepared by the Minister’s solicitor. However, this transcript also has some problems, since at many points its author leaves gaps for words which were unintelligible from the tapes. I shall refer below to some particular differences between the two transcripts in relation to the applicant’s present grounds of judicial review.
I was invited by the solicitor for the applicant to receive the tapes of the hearing and to decide upon a true transcript for myself. However, I declined to do that. It appeared to me that I could decide the grounds of review by addressing the transcript relied upon by the applicant, without a need to resolve all the potential differences between the two transcripts. I considered that the extensive time which would be required for the Court itself to determine a transcript, and the difficulties of doing that in the absence of the parties’ representatives, made it inappropriate to follow this course. As I shall explain, I also considered that my listening to the tapes would not significantly assist my consideration of the applicant’s challenges to the Tribunal’s conclusions as to the applicant’s demeanour and manner of giving his evidence.
In its statement of reasons, the Tribunal set out a description of the hearing which generally appears to me to be supported by both transcripts. The Tribunal then made reference to independent country information concerning relevant events in Malaysia. It referred to inviting the applicant to comment upon some information that was put to him in a s.424A letter. The applicant responded to that information, and the Tribunal said that, after considering his comments, it “decided not to rely upon the information” which had been put to him.
Under the heading “Findings and Reasons”, the Tribunal gave brief reasons for deciding that it did not accept that the applicant donated money to the NJP, nor that he attended a demonstration in 2001 where he was picked up by the police and detained overnight, nor that he was dismissed from his job as a result of those activities. Its reasons for these conclusions were contained in two paragraphs:
The applicant gave his oral evidence at the second hearing in a very composed and articulate manner. He appeared to be an intelligent man. However, the Tribunal found his testimony about the donations he made to the NJP, the June 2001 demonstration and his subsequent overnight detention rehearsed. He did not appear to be speaking from actual personal experience. The applicant testified at the second hearing that on the day of the June 2001 demonstration Mr Ibrahim was appearing in court to answer some charges. When the Tribunal first asked the applicant what those charges were he told the Tribunal that he did not know. The applicant’s claims indicate that he was not a politically active person, his political activities extended only to attending this one demonstration and donating to the NJP a couple of months beforehand. As he had only ever attended one demonstration and was allegedly attending to support Mr Ibrahim the Tribunal finds it hard to believe that he would not have found out why Mr Ibrahim was appearing in court that day. When the Tribunal queried why he did not know what the charges were, the applicant then replied vaguely that Mr S [the applicant’s supervisor] probably got the information from his superiors and passed it down and, contrary to his earlier evidence, that he discovered what the charges were later. This suggests that the applicant did know what the charges were yet he still did not specify what they were. Further, if the applicant had found out later what the charges were then the Tribunal expects he would have told the Tribunal what they were when he was first asked about them. It seemed the applicant had changed his evidence about whether he knew what the charges were when it appeared that not knowing what they were might undermine his claim. This indicates that the applicant was not being truthful.
The Tribunal does not find the applicant’s claim that he was dismissed from his job because he donated to the NJP and attended a demonstration credible. Firstly, he was allegedly dismissed nine months after the last event, the June 2001 demonstration. He claimed that the delay was due to the fact that the police had detained many people, it took them a long time to get through all of the demonstrators and they had to thoroughly check their database. This suggests that his employer only found out about the applicant’s activities some time after he was released from detention. The Tribunal does not find this explanation convincing. The applicant claimed that he and the other demonstrators detained by the police were released the following day which suggests that they were either of no further interest to the police or the police had obtained the information they wanted from them. Further, the applicant claims he provided his work details to the police during his detention. Thus the police could have easily and quickly informed his employer that he had participated in the demonstration soon after his release. Secondly, and most significantly, the Tribunal does not find it believable that the applicant would have been dismissed from his job for attending one demonstration and donating funds in the past whilst Mr S, who was actually an NJP member, was politically active and used his supervisory position to solicit donations from the applicant and encourage his participation in the demonstration, would only have been demoted. The applicant attempted to explain this by claiming that Mr S was demoted earlier and it was later that the human resource manager became jittery as the number of employees found engaging in activities grew. However, the Tribunal does not believe this satisfactorily explains the applicant’s alleged dismissal and Mr S’s mere demotion. If the employer viewed past political activities as warranting dismissal and the full extent of Mr S’s activities or the number of other employees engaging in political activities only became apparent later, then it would seem logical that the employer would subsequently have taken more serious action against Mr S and dismissed him.
Analysing this reasoning, the Tribunal’s rejection of these parts of the applicant’s claims was based partly upon an assessment of his credibility as a witness. In this respect, the Tribunal made a general finding: “the Tribunal found his testimony about the donations he made to the NJP, the June 2001 demonstration and his subsequent overnight detention rehearsed. He did not appear to be speaking from actual personal experience”. The first ground of the application for judicial review challenges this finding.
The Tribunal also identified an area of the applicant’s testimony which contained inconsistencies concerning his knowledge of the charges upon which Mr Ibrahim was brought to court. It used that part of the testimony as another indication “that the applicant was not being truthful”. The Tribunal’s reasoning concerning that element in the applicant’s evidence forms the basis for the second ground of judicial review.
The Tribunal also provided two further reasons for disbelieving the applicant’s claim to have been dismissed from his employment because of making a donation to the NJP and attending a demonstration. It said that the applicant’s explanation for the nine month delay before the police procured his dismissal by his employer was not convincing. It also said “most significantly” that there was an implausibility in the applicant’s claim that he was dismissed, whereas Mr S, the person who had organised his involvement, was merely demoted. The second of these reasons is challenged in the third ground of review which I shall address.
The remainder of the Tribunal’s findings and reasons are not specifically challenged under any grounds of review, and I can summarise them shortly. The Tribunal relied upon its rejection of the applicant’s claimed 2001 and 2002 history as its reason for not accepting that the applicant was detained for two months in December 2002 after he returned to Malaysia, for a general conclusion that “the applicant does not wish to nor would he engage in any political activity if he returned to Malaysia”, and for a finding that “he is of no adverse interest to the police, the authorities or anyone else in Malaysia for reasons of political opinion”. The Tribunal therefore found there was no real chance that the applicant would be persecuted if he returned to Malaysia for reasons of political opinion.
The Tribunal also addressed the applicant’s claims based on race and religion, and did not find that he had experienced in the past any discrimination “serious enough to amount to persecution”. It said that it was not satisfied that “there is a real chance that the applicant would be persecuted for reasons of race and/or religion in the reasonably foreseeable future if he returns to Malaysia”.
Ground 1
The first ground is:
The Tribunal made jurisdictional error as it exceeded its power by acting arbitrarily and/or capriciously in making credibility finding which resulted in the Tribunal reaching a lack of satisfaction that the Applicant is not a refugee.
The particulars of this ground identify the Tribunal’s conclusion about the applicant’s testimony generally as being “rehearsed” and not “speaking from actual personal experience”. It is argued:
There is no objective basis on which the Tribunal could make such a finding. Further, since the Tribunal also failed to explain how it came to this view and as such it was acting arbitrarily and/or capriciously.
In his written submissions, the applicant’s solicitor referred to WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188, SAAK v Minister for Immigration & Multicultural Affairs (2002) 121 FCR 185, and MZXDH v Minister for Immigration & Multicultural Affairs [2007] FCA 719. The first two of these cases contain statements in which a Full Court caution against making “an adverse finding on the credit of [a person] by reference to demeanour alone”. The judgments also suggest that a Tribunal should “identify how the demeanour of the applicant caused the tribunal to conclude” that evidence should be discarded.
Both WAEJ and SAAK are distinguishable, since the present Tribunal did identify how it assessed the applicant’s demeanour, and it was not suffering from the difficulty faced in WAEJ because evidence was taken by video link. The significance of the demeanour finding in the present Tribunal’s overall reasoning, and the context of the evidence presented by the applicant, also provide points of distinction. I am not persuaded that the conclusions arrived at by the Full Courts in those cases should also be reached in the present case.
In my opinion, the passage cited from MZXDH at [16] by the applicant’s solicitor, when read correctly, provides no support for his arguments. It cannot be said in the present case that “considerations such as how the appellant conducted himself during the hearing were irrelevant”.
I accept that judgments of the High Court have addressed the position of a court of appeal conducting a rehearing on questions of fact, to consider whether the trial judge was in a better position by reason of being able to observe a witness. Judicial statements, such as those set out in MZXDH, have expressed caution as to the assumed better position of a trial judge by reason of his ability to observe appearance and demeanour of witnesses. However, it is difficult to translate this line of authority into the proceedings of this Tribunal, and, more importantly, to a court on judicial review of a Tribunal’s finding on credibility which is based in part on an assessment or impression of demeanour. Such a court is far from conducting a rehearing on issues of fact and credibility.
At a more general level, the majority judgment in Fox v Percy (2003) 214 CLR 118 at [31] said:
31Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
(citations omitted)
This passage contains much wisdom for both judicial and administrative decision‑makers required to form an assessment of the truth of a history presented by an applicant. However, the difficulty facing the Refugee Review Tribunal in a case such as the present is that it must assess the applicant’s evidence given in an interview, without “contemporary material” nor “objectively established facts” which can provide easy tests of the credibility of the applicant’s account of persecution. This leaves an assessment of “the apparent logic of events” in a refugee applicant’s history as an important part of a credibility finding, and the present Tribunal has performed that assessment. However, in my opinion the present Tribunal made no jurisdictional error by also putting significant weight upon its impression of the applicant as a witness.
As a matter of law, it cannot be contended that it is not open to a Tribunal to give weight to its impressions taken from the applicant’s demeanour. In Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425, the High Court said at [34]:
34Where, as in the proceedings before the tribunal, the central issue is credibility, the decision‑maker’s assessment will often depend upon the demeanour of the witnesses and the manner in which they give their evidence.
In the present situation, the applicant’s solicitor contends that it was not “open” as a matter of law for the Tribunal to have arrived at a view that the applicant’s testimony was “rehearsed” and not speaking “from actual personal experience”. He relies upon the transcript and tapes to establish this. However, the Tribunal’s findings must have been based on observations of the applicant’s demeanour, including his physical responses at the hearing as well as the tone and manner of his answering questions.
I was invited to listen to the whole of the tapes to form my own impression about demeanour, when deciding whether it was open to the Tribunal to form its opinion about the applicant as a witness. However, as I have indicated above, I declined to do that. Such an exercise would not put me in an equal position with the Tribunal, so as to allow me to conclude that its conclusions were not open to it as a matter of law. I would still be left with the unknown area of the visual and atmospheric aspects of the hearing which must have formed a part in the Tribunal’s own assessment. For that reason, I do not consider that listening to the tapes could have caused me to accept the applicant’s contention in Ground 1.
A reading of the transcript suggests to me that it may have been open to the Tribunal to have formed the impression, from the language and responsiveness of the applicant to the Tribunal’s questions, that he was only speaking from a script that he had memorised, rather than from his actual memory of past events. I do not consider that listening to the tapes generally could have established the contrary, and I was not pointed to any particular passage in the hearing where it was argued that the contrary could be demonstrated from the tapes.
I do not accept the submission of the applicant’s solicitor, that “without support from the applicant’s spoken words, this is an arbitrary and capricious finding”. Manifestly, in my opinion, a finding as to the manner of giving evidence is likely to be based on more than the “spoken words”.
In the present case, in my opinion, the Tribunal was permitted to arrive at adverse impressions of the applicant as a witness, and to rely upon those impressions when disbelieving his claims. I am not satisfied that its findings as to the applicant’s demeanour which are attacked under this ground were not open to it.
Ground 2
This ground contends:
The Tribunal made jurisdictional error as it was not open on the evidence for the Tribunal to make a finding that: “It seemed the applicant had changed his evidence about whether he knew what the charges were when it appeared that not knowing what they were might undermine his claim. This indicates that the applicant was not being truthful”.
The Tribunal’s opinion, that the applicant had tailored his evidence in the face of the Tribunal’s questioning about his knowledge of the charges facing Mr Ibrahim on the day when the applicant demonstrated in front of the court, is found in the extract above.
A similar finding as to the content of his evidence was made by the Tribunal earlier in its statement of reasons, when describing his evidence given at the hearing. The Tribunal said that “when the Tribunal first asked the applicant what those charges were he told the Tribunal that he did not know”. The Tribunal then found that “when the Tribunal queried why he did not know what the charges were, the applicant then replied vaguely that Mr S [the applicant’s supervisor] probably got the information from his superiors and passed it down and, contrary to his earlier evidence, that he discovered what the charges were later”.
The applicant’s solicitor submitted that, on the evidence of what the applicant said at the hearing, it was not open to the Tribunal to find that the applicant had changed his evidence. In particular, he argued that it was not open to the Tribunal to find that the applicant said that he had “discovered what the charges were later”.
The relevant passage from the transcript relied upon by the applicant shows:
Tribunal: Why was he appearing in court on that day?
Applicant: He has to answer some charges so he was brought there.
Tribunal: Which charges?
Applicant: I don’t know what trumped up charges the government had against him because they always drum up charges against people and then they just haul them to the courts.
Tribunal: Again I ask you, given that you generally from your evidence were not a politically active person, prior to that occasion you had only given just one donation to a political party, what made you go to the court on this day to support Mr Ibrahim?
Applicant: Mr S rallied us.
Tribunal: Right. Again he asked you but someone can ask me to do something but the question is, someone can ask you to do something but the question is why did you want to do it? Why did you agree to do it?
Applicant: Because he was my superior in the hotel. He was in the F & B Manager so you see you have to be in his good books.
Tribunal: So you didn’t do it out of any - - -
Applicant: And also for these reasons, the abuse of Mr Anwat, for both reasons.
Tribunal: So given that you have only attended one demonstration in your life, it seems to be you will be able to recall why Mr Ibrahim was appearing in court on that day. You say it was some sort of trumped up charges, you don’t really know but if you have only ever been to one demonstration it seems to me you would have a strong recollection of that occasion and why you were there. So how is that you can’t recall what the charges were?
Applicant: You see the government they just drum up the charges as they like and then we only get to know according to the grapevine. So most probably Mr S got this info from his superiors, passed down the message to him.
Counsel for the Minister accepted that the above transcription should be accepted, notwithstanding that his own transcript showed some difficulty in understanding the applicant’s responses, in particular, at the end of the quoted passage. It is therefore not necessary for me to resolve the differences between the two transcripts.
Counsel for the Minister contended that it would have been open to the Tribunal to have construed the applicant’s answer: “we only get to know according to the grapevine”, as implying that the applicant did “get to know” the charges upon which Mr Ibrahim was brought to court when they came down “the grapevine” through Mr S.
I accept that submission. Although there is some ambiguity in the applicant’s response to the Tribunal’s assertion that he should have been aware of the reasons why Mr Ibrahim was brought to Court, I consider that it was open to the Tribunal to conclude that the applicant had tailored his evidence in an attempt to meet the Tribunal’s concern.
I am not persuaded that it was not open to the Tribunal to form a conclusion that the applicant was not giving truthful evidence at this part of the hearing. I am also not persuaded that any error by the Tribunal in relation to this element in its reasoning would have amounted to jurisdictional error.
Ground 3
This ground contends:
The Tribunal made jurisdictional error in that it made a credibility finding against the applicant without asking a question it should have asked.
In his submissions, the applicant’s solicitor challenged the Tribunal’s conclusion in the passage extracted above:
the Tribunal does not find it believable that the applicant would have been dismissed from his job for attending one demonstration and donating funds in the past while Mr S, who was actually an NJP member, was politically active and used his supervisory position to solicit donations from the applicant and encourage his participation in the demonstration, would only have been demoted.
It was argued that it was not open to the Tribunal to reason in that manner, in circumstances where it had not asked the applicant at the hearing whether Mr S had only suffered the penalty of demotion. The particulars to Ground 3 argued:
There is no information before the Tribunal as to what happened to Mr S later. Under that circumstance the Tribunal should have asked the applicant: “Do you know whether any serious action was taken against Mr S or not once the hotel authorities realised the full scale of the employee’s involvement?” Or it should have asked itself: “Do I have any information as to whether or not any serious action was taken against Mr S once the hotel authorities realised the full scale of the employee’s involvement?”
However, in my opinion the Tribunal was not obliged to frame questions in those terms to the applicant, before basing its reasoning on an apparent anomaly in the applicant’s account of events. In my opinion, its conclusion was reasonably open on his evidence.
In the transcript relied upon by the applicant, the applicant at p.20 volunteered the information that Mr S had “lost his job” by being “demoted in fact” when he was “transferred to another hotel”. The Tribunal then questioned the applicant about the nine month delay before his employer terminated his own employment, and squarely put to the applicant its concerns about his evidence. The transcript then shows:
Tribunal: So it seems hard to believe that your employer would be concerned about that because it is not as if it is someone who is engaged in ongoing political activity, it was something in the past?
Applicant: The beverage manager, Mr S, was still with the hotel. He had a list of names of donors. The HR questioned him because it came to their notice that he was at the forefront of things there, raising donations. So they questioned him and also everyone’s name was revealed to the hotel people with the police inquiries. The police queried about this. So it is a double whammy for me. When they got the … Mr S, another one from the police people. So I was let go in March 2002.
Tribunal: It seems to me from your evidence Mr S was far more involved?
Applicant: Yes.
Tribunal: He was actually a member of the party. He was soliciting donations from a number of people?
[Applicant: And he got an appeal for his hearing and all that. It was in ’99, 2000 on sodomy charges and some other trumped up charges by the government. After - - -]
Tribunal: He was only demoted.
Applicant: Let me explain.
Tribunal: That seems somewhat hard to believe.
Applicant: Yes. You see he was dismissed earlier than me and demoted to another hotel.
Tribunal: He was demoted earlier than you?
Applicant: Yes.
Tribunal: Yes?
Applicant: But as the number of hotel employees were found to be doing this or indulging in all these activities the human resource manager became more strict. So out of say fear or jitteriness they began to take drastic measure. So in this case they didn’t give us any option to transfer but they just terminated us.
The applicant’s interjection which I have placed in parentheses, may be an error of transcription at the top of p.22, since it appears out of context. On the transcript presented by the Minister, the question by the Tribunal preceding this interjection is transcribed more extensively:
Tribunal: He was actually a member of the party who was soliciting donations from a number of people. And it seems he was encouraging people to attend the demonstration cause your evidence was that was one of the reasons that you went cause he was your superior. And yet he was only demoted and yet you were dismissed that doesn’t seem …
I think it likely that this passage in the hearing involved the Tribunal being interrupted by the applicant, but the differences in transcription do not appear to be material to the present argument.
What is clear from both transcripts, is that the applicant was asked to explain an apparent anomaly in his evidence, and was warned that it seemed “hard to believe” that the two employees would be treated so differently. In his response, the applicant did not seek to present further information about what had happened to Mr S, and in my opinion there was no obligation on the Tribunal to have inquired further into that topic.
The applicant’s solicitor was present at the hearing, and the end of the transcript shows that he requested the Tribunal to ask his client further questions in relation to at least one other matter. At the time, it seems that he did not think there were unanswered questions in relation to the topic of what happened to Mr S. In my opinion, the Tribunal was entitled to think likewise.
In my opinion, the point made by the Tribunal in its reasoning which is attacked under Ground 3, was one which was logical and rational, and was open to the Tribunal on the evidence before it. I do not think that it was attended by any unfairness nor any obligation to make further inquiries (cf. Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], and Minister for Immigration & Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [200]‑[201]). I therefore do not accept this ground.
The solicitor for the applicant sought to tie together all three grounds as collectively revealing a Tribunal which was searching for grounds to reject the applicant’s claims, rather than to assess them on their merits. In effect, it was argued that the Tribunal had approached the whole proceeding with a biased and closed mind. However, the Tribunal’s ultimate reasons for rejecting the credibility of the applicant’s claimed history carry no such suggestion. A statement of reasons in the present situation necessarily provides reasons for having arrived at a decision adverse to the applicant. In my opinion, the present statement of reasons does not provide any evidence of a closed mind before the Tribunal arrived at its findings and decision.
I have not found any other evidence suggesting that the proceedings of this Tribunal might give rise in an informed lay observer to a reasonable apprehension that the Tribunal might have closed its mind to the merits of the matter. Moreover, the rejection of the three grounds argued above demolishes the substratum for the broader contention argued by the solicitor for the applicant.
For the above reasons, I am not persuaded that the Tribunal’s decision was affected by any jurisdictional error. It is therefore a privative clause decision, and I must dismiss the application.
I certify that the preceding fifty‑three (53) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 12 September 2007
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