SZRIF v Minister for Immigration & Border Protection - [2015] FCCA 493

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRIF & ORS v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR

[2015] FCCA 493

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal’s findings in relation to complementary protection were open to it – whether the Refugee Review Tribunal considered all claims made by the applicant – whether the Refugee Review Tribunal denied the applicant procedural fairness – whether the Refugee Review Tribunal failed to consider if the applicant met the complementary protection criterion – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 189, 411, 422B, 424A, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZRIF & Ors v Minister for Immigration and Citizenship [2012] FMCA 1151
SZGIZ v Minister for Immigration (2013) 212 FCR 235
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547

First Applicant:

SZRIF

Second Applicant:

SZRIH

Third Applicant:

SZRIG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2306 of 2014

Judgment of:

Judge Emmett

Hearing date:

27 February 2015

Date of Last Submission:

27 February 2015

Delivered at:

Sydney

Delivered on:

27 February 2015

REPRESENTATION

The first applicant appeared in person with the assistance of a Mandarin interpreter.

Solicitors for the Respondents:

Ms Sophie Given (Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2306 of 2014

SZRIF

First Applicant

SZRIH

Second Applicant

SZRIG

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”), dated 30 July 2014, conducted by the RRT in light of the decision of SZGIZ v Minister for Immigration (2013) 212 FCR 235 (“SZGIZ”). SZGIZ had the effect of providing a further opportunity for the applicant’s claims to be considered in the light of the complementary criterion in s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).
On 2 August 2011 the applicants lodged an application for a protection visa and on 25 October 2011 that application was refused. On 9 March 2012 a differently constituted Refugee Review Tribunal affirmed that decision and on 5 April 2012 this court dismissed an application for judicial review of that Refugee Review Tribunal decision.
On 14 December 2012, the applicants’ bridging visa ceased and the applicants have remained unlawfully in Australia since that time. The second and third applicants, being the first named applicant’s wife and son, respectively, were not detained and were granted bridging visas on 28 November 2014.
On 29 November 2013 the first named applicant (“the applicant”) applied for a protection visa on the basis that he met the complementary criterion in s.36(2)(aa) of the Act. That application was refused by a delegate of the first respondent on 12 June 2014 (“the Delegate”). As stated above, that decision was affirmed by the Refugee Review Tribunal on 30 July 2014.
In his application for a protection visa, the applicant made claims that he left Malaysia to escape persecution and racial discrimination, that he had been the subject of intimidation and death threats in respect of his family and fears harm from gangsters and Malaysian authorities. The applicant claimed that in order for his business to function he had to bribe government officials because he is ethnically Chinese. He claimed that he would be asked to gamble with government officials and that if he refused to do so, the authorities would threaten to close down his business. In the event that he won, he would not receive his winnings. The applicant claimed that he was unable to pay thugs or gangsters who would then intimidate his family and threaten to kill him. The applicant claimed that he is unable to pay a debt sustained from gambling initiated by officials and would be in danger if he returned to Malaysia.
On 25 June 2014, the applicants were invited by the RRT to attend a hearing to give evidence and present arguments relating to the issues arising in their case. The applicant duly attended that hearing and gave evidence, which was explored with him by the RRT at the hearing. The RRT noted that the application before it was as a consequence of the Full Court of the Federal Court of Australia’s decision in SZGIZ, as it relates to complementary protection criterion. The RRT found that the RRT’s decision in relation to whether the applicant met the refugee criterion in s.36(2)(a) of the Act which had been made by an earlier decision of the RRT continued to stand.
The RRT’s decision summarised the applicant’s interview with the Delegate and summarised various exchanges it had with the applicant about his claims, matters put to the applicant which concerned the RRT about the applicant’s evidence. The RRT noted the applicant’s responses.
Ultimately the RRT comprehensively rejected the applicant’s claims of being of adverse interest to anyone in Malaysia, and did not accept that the applicant had faced any harm on account of racial discrimination. The RRT noted that the applicant provided no independent evidence to support any of his claims. The RRT found the applicant’s explanations for concerns it put to him to be “vague and simplistic”. The RRT noted that the applicant had been in Australia illegally for nearly 12 years prior to lodging a protection visa application, and that such an application was lodged only following his arrest and detention.
The RRT rejected the applicant’s claim to be, or to have ever been, a professional gambler. The RRT found that the applicant was claiming to borrow money or steal money in order to try and provide evidence of being of adverse interest to someone in Malaysia. The RRT found the application to be opportunistic and made because of the applicant’s arrest and detention.
Having comprehensively rejected the applicant’s claims, the RRT was not satisfied that any of the applicants were persons to whom Australia has protection obligations, and that the applicant’s complaints do not satisfy the criterion in s.36(2)(aa) of the Act.
The applicant was unrepresented before the Court this morning, although had the assistance of an interpreter. The applicant confirmed that no documents had been filed in accordance with the directions made by the Court on 12 November 2014 in the nature of an amended application, further evidence or submissions.
The applicant confirmed that he relied on the grounds identified in his initiating application filed on 18 August 2013. Those grounds are as follows:
“1. Some integers of our claims were not properly taken into account by the RRT member.
2. We have more evidence and enough information for a fair complementary protection review.
3. The RRT deprived us of natural justice.
4. Trying to send us back home will result in jeopardising our lives, pushing us into life threatening situations being physically harmed, mentally tortured and emotionally unstabled for the rest of our lives.
5. The RRT made an error of law for not considering our submissions.
6. We have been a debate amongst the gangsters that we may be coming back to Malaysia so they can physically harm us.
7. Lots of threats have been sent as to our significant harm to vulnerability which are never to be settled for the rest of our lives.
8. The situation we had to go back home would be very critical and life threatening to ourselves; also we will be tortured for the rest of our lives.
9. There are escalating crimes including violence, extortion and intimidation throughout the country of Malaysia.
10. The secondary respondent made an error of law by not considering evidences which were significant and critical to the decision under review.”
Ground 1 was interpreted for the applicant, and he was invited to say whatever he wished in support of that ground. I asked the applicant what were the integers of his claims that were not properly taken into account. The applicant said that he could not find a lawyer, and that he had not received a disk or recording of the RRT hearing. The applicant acknowledged that he had made no such request. I referred the applicant to the directions made by the Court on 12 November 2014, that state in particular as follows:
“8. If evidence of either party is to include recordings of the Tribunal hearing then notice must be given to the other party and the Court stating the issue to which any part of the recording is relevant and the approximate duration of the relevant recording, by the same date upon which evidence of that party is to be filed and served. The tendering party must provide appropriate equipment to allow the recordings to be played in Court at the hearing.”
The solicitor for the first respondent, Ms Given, informed the court that no request for the disk had been received by the first respondent and no disk had been provided to the applicant in the absence of any such request.
In the circumstances, there can be no jurisdictional error on the part of the RRT arising from such a complaint. The applicant has had sufficient opportunity to make any request for a copy of the disk, or the recording. He has chosen not to do so. The issue of whether he wished to rely on the recording was clearly and specifically raised with him at the directions hearing. In the circumstances there can be no denial of procedural fairness or natural justice in the applicant’s complaint that he does not have a disk.
In Ground 2, the applicant asserts that he had more evidence and enough information to support his claim for complementary protection. However, the applicant confirmed to this court this morning that he had no further evidence or information to provide. Indeed, the applicant has filed no documents since 18 August 2014, when he filed his initiating application and supporting affidavit annexing the RRT’s decision record.
In Ground 3, the applicant asserts that he was deprived of natural justice. I asked the applicant in what way he was denied natural justice, and the applicant responded that it was because of the interpreter. He said many things were expressed in his local language and that the interpreter did not have local knowledge of his language, and that he spent some time with the interpreter trying to explain his occupation. The applicant said he was trying to say that he used to work as a bookie in Malaysia in a racing yard. Otherwise the applicant made no particularised complaint about the interpreter.
Whilst there is no particular reference in the RRT’s decision record to the applicant being a bookie in Malaysia in a racing yard, it is quite clear that the applicant’s claim about his fear of returning to Malaysia because he owed a debt arising from his gambling business was considered in some detail by the RRT. The applicant conceded that he did not make any complaint to the RRT about the quality of the interpretation at the hearing. Indeed, the first time the applicant has raised any complaint about the interpretation at the RRT hearing is this morning. In the circumstances, where the applicant has had every opportunity to provide evidence to support such a contention, and has failed to do so, there can be no denial of natural justice to the applicant arising out of complaints relating to the quality of the interpretation.
There was no transcript of the RRT record provided to this court, nor has the applicant provided any evidence to suggest that the RRT’s decision record is not accurate. In the circumstances, the court accepts as accurate the RRT’s summary of the oral evidence given by the applicant and the exchange that it had with the applicant at the hearing. The court is entitled to accept as accurate the RRT’s decision record as reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (see NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
There is nothing in the RRT’s decision record to suggest that the applicant did not have a real and fair opportunity to put whatever he wished and to participate in the hearing in a way from which it can be concluded that the hearing was fair and thus that administrative justice was done (see SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at [24] per Allsop CJ).
The applicant also made a complaint that the RRT erred by not considering their submissions. I asked the applicant what submissions were not considered. The applicant’s only response was to say that there were so many legal issues, and he could not find a lawyer, but that he would be harmed if he was returned to Malaysia. A fair reading of the RRT’s decision record does not support the applicant’s contention that the applicant’s submissions and claims were not considered.
The applicant also asserted that the RRT erred by not considering evidence which was significant and critical to the decision under review. I asked the applicant what that evidence was, and he had no response.
Otherwise, the grounds are the applicant’s application as expressed in paragraphs 4, 6, 7, 8 and 9, are no more than restatements of the applicant’s claims. By themselves, they do not identify any error capable of review by this court and appear more to be disagreements with the findings and conclusions of the RRT. Such complaints invite merits for the orders this court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
On the face of the RRT’s decision record, the RRT’s findings were open to it, on the evidence of the material before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the court.
The RRT specifically expressed it concerns about the credibility of the applicant, noting that the applicant told the RRT that the first claims made by him for protection were false and that he knowingly submitted an application understanding that the claims were not true.
The RRT also had regard to arrests made in respect of the applicant arising from fraud charges. The RRT noted that it carefully considered the applicant’s history of false information and false claims and dishonesty, and found that the applicant was not a credible witness, and that none of the matters that he claimed could be accepted at face value.
The RRT’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the RRT] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
In the circumstances, none of the applicant’s complaints demonstrate any error on the part of the RRT going to its jurisdiction, and none is apparent on the face of the RRT’s decision record or the conduct of its review.
A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicants, explored those claims with the applicant at a hearing and had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT made findings based on the evidence and material before it. As stated above, the RRT’s findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. The RRT’s decision record makes clear that the RRT reached conclusions based on the findings it made, and to which it applied the correct law.
In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere. The proceeding before this court should be dismissed with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 4 March 2015