SZNTY v Minister for Immigration - [2010] FMCA 496

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNTY & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 496

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

The Applicants in these proceedings are not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and have been given the pseudonyms “SZNTY” and “SZNTZ”.

Migration Act 1958 (Cth), ss.91X, 424A

F (Litigants in Person Guidelines), Re FLC 93-072
Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407
Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17
NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361
SCAA v Minister for Immigration & Multicultural& Indigenous Affairs [2002] FCA 668
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988
WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286
WADU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1252
WADU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA Trans 459
Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885

First Applicant:

SZNTY

Second Applicant:

SZNTZ

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1787 of 2009

Judgment of:

Lloyd-Jones FM

Hearing date:

15 April 2010

Delivered at:

Sydney

Delivered on:

16 July 2010

REPRESENTATION

Solicitors for the Applicant:

The Applicant appeared in person with the assistance of an Urdu interpreter.

Counsel for the Respondents:

Mr B O'Brien (solicitor)

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application filed on 27 July 2009 is dismissed.
The Applicant is to pay the first Respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1787 of 2009

SZNTY

First Applicant

SZNTZ

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

The Applicants, who are father and son, are citizens of Pakistan. The Applicant son, a four year old, (“second Applicant”) relies on the claims of the Applicant father (“first Applicant”) for his Protection (Class XA) visa application. For the purposes of this judgment, the first Applicant will be referred to as “the Applicant”. The Applicant acted as a litigation guardian for his son.
The Applicant was born in Faisalabad in November 1978, and has lived there ever since. The Applicant is Muslim and Rajput by caste. He speaks English, Urdu and Punjabi, completed 14 years of education and held the position of Director of Super Electric Company from February 2003 to September 2008. The Applicant was divorced on 4 March 2008.
The Applicant claimed to fear persecution on the grounds of his race, religion, imputed political opinion and membership of a particular social group. The Applicant claims to fear harm from his ex-wife’s family and people associated with them. In the Applicant’s Protection visa application he claims that he his ex-wife was part of the Arain caste. The Applicant claims that his ex-wife’s family were insistent upon her marrying within the Arain caste and for this reason the Applicant was subjected to murder threats by her family. The Applicant stated that he was unable to cope with the situation and left for Australia after taking custody of his son and leaving behind his business.
A Court Book (“CB”) was prepared by the first Respondent’s solicitors and marked Exhibit “A”. This is the only evidence before the Court.
The Applicants arrived in Australia on 7 September 2008 and applied to the Department of Immigration & Citizenship for Protection (Class XA) visas on 7 October 2008. On 10 December 2008 a delegate of the Minister for Immigration & Citizenship refused the application for a Protection visa and the Applicant was notified of this decision by way of letter dated 10 December 2008. The Applicants applied for a review of this decision with the Refugee Review Tribunal (“the Tribunal”) on 12 January 2009 and the Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection visa on 2 July 2009. It is this decision, RRT case number 0900224, a decision of Shahya Roushan that is the subject of these proceedings.
At the first court date directions hearing, the Applicants were granted leave to file an amended application. However, the Applicant did not avail himself of this opportunity and relied on the grounds contained in the original application which state:
1. The Tribunal failed to note that the delegate of the Department, without giving consideration to the Applicant’s inability to explain his claims in English language, continued to conduct the hearing in English language and made an unreasonable procedural error and thus made a jurisdictional error.
2. The Tribunal knowingly and with bias failed to consider the submissions made by the Applicant in relation to the new claims and the reasons given therein and with an ulterior motive rejected the Applicant’s new claims and thus made a jurisdictional error. The Tribunal rejected the Applicant’s claims on 2 July 2009 before even considering the submissions made by the Applicant on 1 July 2009 as requested by the Tribunal.
3. The Tribunal made a jurisdictional error by not giving the Applicant an opportunity to explain any doubts the Tribunal had, in relation to his further submissions and explanations in writing as requested by the Tribunal.

Tribunal decision

The Applicant appeared before the Tribunal on 25 March 2009 and presented argument. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The Applicant stated that his application for a Protection visa was prepared with the assistance of a migration agent introduced to him by a friend of his brother. During the hearing and in subsequent correspondence, the Applicant claimed that his ex wife’s family were radical Muslims with links to the Taliban, and that they wanted to recruit him and his son.
The Tribunal found that the Applicant was not a credible witness and rejected all of his material claims (CB 171 at [109]-[110]). In reaching this conclusion, the Tribunal had regard to the Applicant’s inconsistent evidence and the implausibility of significant aspects of his claim (CB 166 at [91]). The Tribunal did not accept the explanations advanced by the Applicant for his inconsistent evidence (CB 167 at [95]-[104]). The Tribunal concluded that the Applicant’s claims were fabricated (CB 170 at [107]). The Tribunal considered (CB 171 at [108]) documentary evidence submitted by the Applicant, however, in light of “…the fundamental lack of credibility…” of the Applicant’s evidence, the Tribunal gave the documents no weight.

Consideration

At the directions hearing on 19 August 2009, the Applicant was requested to file and serve in the registry a short written outline of submissions and a list of authorities 14 days before the hearing. The Applicant failed to comply with this requirement. The matter was originally set down for final hearing on 21 December 2009. Unfortunately due to my unforeseen circumstances the matter had to be relisted and was set down for hearing on 15 April 2010. Although this provided the Applicant with considerable time to prepare submissions, nothing was placed before the Court. When the Applicant was invited to make oral submissions, he briefly stated that the Tribunal did not accept his evidence. There was no attempt to elaborate on this statement.
In the Tribunal’s decision record under the heading “Findings and Reasons” it made the following observations:
[91] The Applicant did not impress the Tribunal as a truthful or reliable witness in that the Tribunal’s view, his overall evidence cast serious doubts on the veracity of his claims and his credibility as a witness. In reaching this view, the Tribunal has had regard to significant inconsistencies between the evidence he presented to the Department and his evidence to the Tribunal, the implausibility of significant aspects of his claims…(CB 166]
When the Applicant originally appeared before the delegate of the Minister, the Applicant confirmed the contents of the Protection visa application and indicated the problems with his ex-wife were due to the fact that he is a Rajput and she is a Arain and that Arains do not accepts Rajputs. He stated that his in laws were coaching his wife against Rajput and that his problems were due to his caste. He accused his in laws of murdering his daughter because of his caste and stated that his father in law had admitted to murdering his daughter. The Tribunal noted that when the Applicant appeared before the Tribunal he presented a vastly different account of his experiences in Pakistan and introduced a significant number of new claims which gave a comprehensively new character to his evidence.
After the hearing the Tribunal forwarded a s.424A letter to the delegate dated 9 June 2009 which contained a copy of the audio recording of the Applicant’s interview held of the Minister on 5 December 2008. The letter invited the Applicant to respond to the allegations made against the delegate during that hearing and the particulars of that request are as follows.
After receiving your response to its letter of 30 March 2009 which was reissued on 21 April 2009, the Tribunal decided to carefully re-listen to the audio recordings of your interview with the delegate, held on 5 December 2008 (the interview). Having done so, the Tribunal failed to uncover anything in the conduct of the delegate or the interview to suggest you were “blocked”, “interrupted”, prevented from disclosing claims or deprived of the opportunity to forward your case. The interview lasted for approximately one hour and six minutes and the delegate’s approach was consistently polite, calm, measured and at times empathetic. He questioned you extensively about your claims and frequently asked you to expand upon or explain your evidence. She asked you open ended questions and gave you ample time to respond to her queries. She discussed her concerns with you and gave you an opportunity to add to your evidence. At no point you were “forced”, “compelled” or even encouraged to speak in English. Whilst it is true that you replied to some of the delegate’s question in English, you did so voluntarily and were assisted by an interpreter in your own language whenever you had difficulty communicating. Whenever you chose to reply to the delegate’s question in English, there was no indication that you had misunderstood the question or that you were not permitted to speak in your own language. You raised no concerns and made no mention at the interview that you were experiencing any communication difficulties whatsoever. (CB 145)
A copy of the delegate’s hearing recorded on disk was supplied with a letter (CB 147).
In response to the s.424A letter the Applicant made claims that the character of advice he was provided by his agent was both unhelpful and wrong. He sharpened his criticism of the delegate in the manner in which she had conducted the hearing and attempted to introduce a range of new claims that had not been previously ventilated.
The Tribunal’s decision is founded upon its assessment of the Applicant’s credibility which are a finding of fact: Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 168 ALR 407 at [64]-[67] where His Honour McHugh J described the issue of credibility as a matter for the Tribunal par excellence. Consequently, credibility findings are uniquely within the jurisdiction of the Tribunal and not within this Court: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9].
On 23 November 2008, the Applicant forwarded to the department a series of translated documents, the majority of which were complaints addressed to various key stations and a copy of a post-mortem report concerning the death of his daughter. The Tribunal provides details of these documents in its decision record at paragraph [32] (CB 155) and after considering those documents makes the following comment:
108. The Tribunal has considered the documents submitted by the Applicant. However, for the reasons outlined above and given the fundamental lack of credibility within his evidence, the Tribunal does not give any weight to any of those documents he has provided in support of his claims (see Re: Minister for Immigration & Multicultural Affairs Ex parte Applicant S20/2002 (2003) 77 ALJR 1165)
(CB 171)
I accept the submission made by Mr O’Brien that on the basis of the inconsistencies and the other deficiencies which the Tribunal sees in the Applicant’s evidence, the Tribunal was entitled to reach adverse credibility findings about the Applicant’s claims. Similarly on the basis of the Applicant’s adverse credibility findings, the Tribunal was entitled to reject corroborative documentary evidence. In Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 at [49] their Honours McHugh and Gummow JJ observed:
[49]… The appellant's argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question. That may be a preferable method of going about the task presented by s 430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant.
In WADU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1252 per RD Nicholson J at [45] His Honour stated:
[45] It is open to a Tribunal which is convinced that a principal witness is fabricating a story to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness: S 20/2002 at 63, [12] per Gleeson CJ; at 70, [49] per McHugh and Gummow JJ..
This approach was subsequently supported by the decision of the High Court on 12 November 2004 in refusing the Applicant’s application for special leave to appeal from this decision: WADU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA Trans 459 at lines 18-21.
The Tribunal’s adverse credibility finding and consequent rejection of the Applicant’s claims is a matter for the Tribunal par excellence: Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (supra) at [67] per McHugh J:
[67] In addition, the prosecutor alleges that the tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were “utterly implausible”. However, this was essentially a finding as to whether the prosecutor should be believed in his claim — a finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal's view that it was inherently unlikely that the events had occurred as alleged.
I am satisfied that the Tribunal’s finding in this respect was open to it on rational grounds on the material before it and it discloses no error in its treatment of the Applicant’s credibility. The Tribunal’s reason for its decision, which is the only evidence before the Court, in relation to its conduct of the hearing, indicates the concerns it had about aspects of the Applicant’s evidence and which it raised with him during the hearing and subsequently in a s.424A letter. The Applicant was unsuccessful because of the Tribunal’s view of the facts and, in particular, its finding that he was not credible.

Ground one

In this ground the Applicant alleges that the Tribunal failed to take into account its complaints about the conduct of the delegate during the interview held on 5 December 2008. This ground is factually incorrect as the Tribunal did investigate the Applicant’s complaints by relisting to the delegate’s interview CD. In the s.424A letter dated 9 June 2009 the Tribunal invited the Applicant to comment on this assessment of the interview as being directly at odds with the Applicant’s complaint. The Tribunal in its decision record set out the steps it had undertaken to review this complaint before rejecting the claim (CB 168 at [100]-[103]). I am satisfied that this ground of review cannot be sustained and should be dismissed.

Ground two

The Applicant alleges that the Tribunal “knowingly and with bias” failed to consider the Applicant’s submissions filed at the Tribunal on 1 July 2009 in response to the s.424A letter forwarded on 9 June 2009. This ground is also factually incorrect as the Tribunal specifically considered the Applicant’s response to its s.424A letter and sets out that consideration in its findings in the decision record at paragraphs [102]-[103] (CB 169). The Applicant’s complaint appears to be not that his submissions in response were not considered but rather that they were not accepted. A complaint of bias is a very serious allegation and must be distinctly made and clearly proved by the presentation of evidence: Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17. A party alleging actual bias on a decision maker’s part carries a heavy onus that must be clearly proved: Jai (supra) at [69].
The existence of actual bias may be inferred from the facts and circumstances but caution should be exercised, in the absence of evidence of partisanship or hostility before inferring actual bias from factual errors or faulty reasoning on the part of the Tribunal’s reasoning: Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988 at [27]; Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 at [36]; SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361 at [41]. Further a case of actual bias is seldom made by reference to the reasons for decision and no inference of bias or pre-judgment can be drawn from mere fact of adverse findings in the Tribunal’s reasons: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration & Multicultural& Indigenous Affairs [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286 at [3].
I am satisfied on the material before the Court that the allegation of bias on the part of the Tribunal member has not occurred in this matter and that this allegation should be dismissed.

Ground three

The Applicant complains that the Tribunal did not write to him in prior to handing down its decision and did not invite him to make further comment upon the reasons it had decided against his submissions. Section 424A does not impose such an obligation on the Tribunal. In SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [18] in a joint judgment of Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated:
[18] Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:14
… does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc …
If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

Further in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [48] in a joint judgment of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ their Honours stated:
[48] Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:24
… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
Procedural fairness does not require the tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
The basis of this ground again reflects a misunderstanding of the practice and procedure of the Tribunal and the relative line of authority that applies. This ground of review cannot be sustained and should be dismissed.

Conclusion

It is important to note that the Applicant is a self represented litigant and acted as a litigation guardian for his son without any legal qualifications or background. In this respect the approach of the Full Family Court in F (Litigants in Person Guidelines), Re FLC 93-072 at [221] states:
[221] We think that guidelines must not risk compromising the neutrality of the court, or the perception of the court's neutrality. Such neutrality is a key feature of the adversarial system. Judicial assistance cannot make up for lack of representation without an unacceptable cost to matters of neutrality. However, in our view, the obligation to provide a fair trial has principal significance for a court of law and it must take some steps to assist a litigant in person in order to do justice between the parties with an eye to the reality of the prevalence and diversity of litigants in person in this jurisdiction.
The Applicant was provided with the opportunity to participate in the NSW RRT legal advice scheme however the Applicant elected not to do so. The Applicant was also granted leave to file an amended application but he also elected not to avail himself of this opportunity. The Applicant failed in his Protection visa application before the delegate of the Minister and the Tribunal due to significant inconsistencies in the evidence presented to the delegate of the Minister and then to the Tribunal. The Tribunal found that many aspects of his claim were implausible and ultimately rejected his application on an adverse credibility finding. The grounds of review advanced by the Applicant are based on either a factually incorrect basis or misunderstandings in the operation of the particular law. All three grounds of review fail because of this defect. Consequently, the application should be dismissed with costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate:

16 July 2010