SZSUB v Minister for Immigration

[2014] FCCA 544

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSUB v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 544

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse the grant of a Protection (Class XA) visa – no reviewable error – application dismissed.

Legislation:

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

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
NAIS & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 470
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425
Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347
SZLSY v Minister for Immigration and Citizenship [2008] FCA 1144
SZMDB v Minister for Immigration and Citizenship & Anor (2008) 105 ALD 499

Applicant: SZSUB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 878 of 2013

Judgment of: Judge Lloyd-Jones

Hearing date: 13 March 2014

Delivered at: Sydney

Delivered on: 25 March 2014

REPRESENTATION

The Applicant: The applicant appeared in person with a Mandarin interpreter.

Counsel for the First Respondent: Mr C Lenehan

Solicitor for the First Respondent: Mr L Dennis of Sparke Helmore

The Second Respondent: The second respondent filed a submitting notice.

ORDERS

1. The name of the first respondent be amended to read “Minister for Immigration and Border Protection”.

2. The application filed on 26 April 2013 be dismissed.

3. The applicant pay the first respondent’s costs and disbursements of and incidental to the application.

The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSUB.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 878 of 2013

SZSUB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application under the Migration Act 1958 (Cth) (“the Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1213203, a decision of Tribunal Member G. Towney dated 28 March 2013, affirming the decision of a delegate of the Minister for Immigration and Border Protection (at the time of the decision The Minister for Immigration and Citizenship) (the “Minister”), to refuse to grant the applicant a Protection (Class XA) visa.

2. The solicitors for the first respondent, the Minister, filed a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.   

3. By orders made by the Court on 4 June 2013, the applicant was granted leave to file and serve any additional affidavits upon which he wished to rely.  The applicant was also granted leave to file and serve an outline of written submissions fourteen (14) days before the hearing.  The applicant elected not to file any affidavits or written submissions.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s legal representatives. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.

2. The applicant is a Malaysian citizen who arrived in Australia as the holder of a Visitor visa on 3 March 2012 and applied for a Protection (Class XA) visa on 1 June 2012 (CB 4-14, 15-29).  The Protection visa application was accompanied by a personal statement made by the applicant (CB 30-34).  The applicant claimed to be seeking a Protection visa because he was “treated unfairly and assaulted violently in Malaysia”.

3. The applicant claimed that in approximately July 2011 he commenced working in a pub.  He lived a “fearful and restless life” and joined the “opposition party”.  The applicant claimed a group of Malays attended his home one night and destroyed his car with stones.  The applicant stated he did not know this had been done for political reasons until he was “beaten on [the] street and warned by others”.

4. The applicant stated he left the opposition party.  However, he claimed he continued to be harassed and was harmed “not only physically but mentally”.  The applicant stated he sought assistance from the police, but a policeman told him he “deserved it and should receive reasonable punishment”.  The applicant further stated that, in Malaysia, Chinese, non-Muslims and non-supporters of Barisan National are treated as the applicant was.  It was for these reasons the applicant sought protection in Australia.

5. On 5 June 2012, the applicant was invited to attend an interview with a delegate of the Minister for the purpose of discussing his claims for protection, to be conducted on 29 June 2012 (CB 38-39).  By letter received by the Minister’s delegate on 18 June 2012, the applicant requested that the interview be conducted in Melbourne instead of Sydney (CB 40).  By letter dated 19 June 2012, the Minister’s delegate informed the applicant that this was not possible and that the interview would proceed on 29 June 2012 in Sydney (CB 42).  The applicant did not attend the interview with the Minister’s delegate on 29 June 2012 (CB 91).

6. By letter dated 1 August 2012, the applicant was notified the Minister’s delegate had refused to grant him a Protection visa (CB 43-46).  The delegate’s decision is set out at CB 47-59.

Tribunal Proceedings

1. On 20 August 2012, the Tribunal received an application for review of the delegate’s decision (CB 60-66).  The applicant attended two hearings before the Tribunal, the first on 11 January 2013 and second on 14 February 2013.

2. At the hearings before the Tribunal the applicant expanded on his claims.  He stated that:

   a)He feared the Malaysian Party because he had participated in party activities and protests (CB 91-92 at [26]);

   b)When asked what opposition political party he had actually joined, the applicant stated it was the Rocket Party, which the applicant stated was organised by Malaysian Chinese people and non-Muslim people who have been persecuted in opposition (CB 92 at [28]);

   c)The Government Party cheats Malaysian Chinese and non-Muslim people (CB 92 at [30]);

   d)He had joined the Rocket Party through a friend in March 2011 (CB 92 at [32]);

   e)He had been in the party for approximately nine months (CB 93 at [33]); and

   f)He ended his association with the Rocket Party following a conversation with party leader Helian Huang in a café (CB 93 at [34]).

3. On 28 March 2013 the Tribunal decided to affirm the decision of the Minister’s delegate not to grant the applicant a Protection visa (CB 87-100).

4. In its Decision Record, the Tribunal found the applicant was not a credible witness (CB 97 at [56]).  The Tribunal accepted the applicant was a national of Malaysia (CB 95 at [50]), but rejected all of his key claims on the basis of adverse credibility findings.  Specifically, the Tribunal was concerned that in his Protection visa application and statement the applicant “supplied very limited evidence regarding the opposition party that he was involved with” and, although he was able to supply some basic information regarding the party at the hearing before the Tribunal, this information was only provided after noticeable delays and pauses (CB 96 at [52]).

5. The Tribunal found at [52] of the Decision Record (CB 96) that the applicant was unsure or did not appear confident in giving his evidence, including talking in half-sentences.  It further found that his evidence about those who attacked and destroyed was “hesitant and uncertain” and that he “only provided basic details after being prompted by the Tribunal” (CB 96 at [53]).  In addition, the Tribunal noted the applicant “paused on many occasion during the hearing”, “did not seem to be providing full and frank information to the Tribunal” and looked at the interpreter and the interpreter’s notes regularly (CB 96 at [54]).  The Tribunal told the applicant at the hearing that his long delays in answering basic questions indicated he had very limited knowledge of the political parties in question and this affected its assessment of his credibility (CB 96 at [54]).  The Tribunal was also concerned that the applicant had not actually answered some questions and instead reiterated what was in his written statement (CB 96 at [54]).

6. The Tribunal’s concern about the truthfulness of the applicant’s claims was compounded by the applicant’s concession at the hearing that he initially provided false evidence to the Tribunal’s question about whether he had undertaken overseas travel prior to coming to Australia (CB 95 at [47] and CB 96-97 at [55]).  The Tribunal found the applicant’s overall manner at the hearing, particularly the way he gave oral evidence and answered questions, and the fact he knowingly provided false evidence, let the Tribunal to find he was “not credible” (CB 97 at [56]) and was willing to provide false evidence to achieve a successful outcome (CB 96-97 at [55]).

7. On the limited evidence before it, the Tribunal was not satisfied the applicant had experienced any of the claimed harm for reasons of his political opinion or association with political parties and rejected all of his key claims.  Specifically, the Tribunal was concerned that despite claiming to have spent time with an opposition party leader everyday he was only able to provide limited information about the party, the process of joining and his motivation for joining.  It found his claimed experiences in Malaysia were “minimal, vague and unsubstantiated from any external source” (CB 97 at [57]).

8. In relation to the applicant’s claims of harm, the Tribunal also found he failed “to explain in any believable detail” when the claimed harm occurred, who caused it, how they would have known the applicant and details about him, and why they would continue to pursue him after he ended his association with the opposition party.  The Tribunal considered his evidence about the steps he took to escape harm was deficient and concluded that if the incidents that he described were true then it was reasonable to expect he could describe them in better detail (CB 97 at [58]).

9. For the reasons outline above, the Tribunal found that the evidence before it was insufficient to enable it to be satisfied of any of the applicant’s key claims (CB 97-98 at [59]).  It found there was not a real chance the applicant would face serious harm if he returned to Malaysia due to his political opinion or for any other reason including alleged unfair treatment or discrimination against Chinese and non-Muslim Malaysians (CB 98 at [60]).

10. In assessing the applicant’s entitlement to complementary protection, the Tribunal found there was insufficient evidence before it to enable it to be satisfied that the applicant’s claims were genuine or, if they were genuine, that this would lead to significant harm.  On this basis, the Tribunal was not satisfied there were substantial grounds for believing the applicant faced a real risk of significant harm (CB 100 at [61]).

Current Proceedings

1. The applicant filed his application seeking review of the Tribunal’s decision in this Court on 26 April 2013.  The grounds of the application are:

   1.  In Paragraph 54, RRT mentioned that I haven’t answered some of the questions.  In that way. RRT has responsibility to ask me more clearly or repeat the question in another way, to make sure I answer the particular questions.  There are many way to cause this issue happened.  For example: Interpreter mistranslated.  RRT should not use this point to refuse my application.

   2.  In Paragraph 59, RRT mentioned that I didn’t have any evidences to approve that I joined an opposition political party.  As the same, RRT has no evidences to approve that I didn’t joined an opposition political party.  As RRT and I both cannot provide any evidences, RRY should not use this point.

2. The applicant, despite leave being granted, elected not to file an amended application, any affidavit evidence or written submissions.

Applicant’s Submissions

1. When he was asked at the hearing if he had any oral submissions to make, the applicant indicated he felt that at the hearing before the Tribunal the interpreter perhaps had mistranslated his oral evidence.  He also stated that the reason he provided insufficient evidence to the Tribunal was that his life was under threat, was in a desperate condition and needed to come to Australia.

Minister’s Submissions

1. In respect of the applicant’s first ground of review, the Minister submits it appears to suggest the Tribunal erred in the way it made its factual findings based on the answers provided to it by the applicant.  The applicant apparently suggests this is because the Tribunal “had a responsibility” to ask its questions “more clearly” or “repeat” them in another way.

2. The Minister contends that to the extent this is a complaint by the applicant about the Tribunal’s adverse credibility findings, which were based on the answers given to the questions by the Tribunal, no error is disclosed.  The Tribunal’s findings on the applicant’s credibility were findings of fact open to it to make on the evidence before it and for the reasons it gave.  The Tribunal was not under any obligation to uncritically accept any and all allegation made by the applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451. Further, the weight to be given to the applicant’s claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 281-282. In particular, the Tribunal’s findings that the applicant had not given truthful evidence were findings of fact for the Tribunal par excellence: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. The Tribunal is the sole arbiter of facts and evidence and the Court cannot review the merits of the Tribunal’s decision.

3. To the extent that Ground 1 of the application is a complaint that the Tribunal did not sufficiently question the applicant, the Minister submits such a complaint is misconceived.  The Tribunal is under no obligation to prompt and stimulate an elaboration which an applicant chooses not to embark on: see SZMDB v Minister for Immigration and Citizenship & Anor (2008) 105 ALD 499, and it is entitled to rely on an applicant’s answers and demeanour at the hearing in assessing their credibility: see Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 at [31]; NAIS & Ors v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 470. If the applicant is seeking to complain about the manner in which the Tribunal asked questions at the hearing or the adequacy of the interpretation provided, then it is incumbent on him to provide evidence to support his allegations. Without such evidence, the Minister submits the Court cannot find there has been any error of a kind suggested by the applicant’s first ground.

4. The Minister submits Ground 1 of the application must be dismissed.

5. In respect of Ground 2 of the application, the Minister contends this ground of review appears to cavil with the Tribunal’s credibility findings without having at hand evidence contradicting the claims made by the applicant.

6. The Minister argues this ground must also fail.  Whilst a decision-maker should be mindful of the evidentiary difficulties faced by visa-applicant, it remains the case that a decision-maker is not required to accept uncritically claims made by a visa applicant.  It is also not the case that a decision-maker is required to have in his or her possession rebutting evidence before it can find a particular factual assertion is nor made out: see Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347 at 348. In the present case, the Tribunal simply did not accept the applicant’s evidence about his claimed political activities or the harm he claimed to fear. There is nothing to suggest the Tribunal’s approach in this respect was anything other than ordinary, or that these findings were not open to the Tribunal on the material before it.

7. The Minister contends Ground 2 of the application must also fail.

8. The Minister submits the application should be dismissed with costs.

Consideration

Ground 1

1. Ground 1 of the application takes particular issue with the Tribunal’s findings at [54] of the Decision Record (CB 96), where it stated:

   54.    The applicant paused on many occasions during the hearing and did not seem to be providing full and frank information to the Tribunal.  The applicant looked at the interpreter and the interpreter’s notes often during the hearing.  During the hearing the Tribunal raised with the applicant that, as someone who claimed to have a well-founded fear of serious harm due to his political involvement, the long delays in answering basic questions indicated that he had very limited knowledge of the political parties.  The Tribunal raised that this effected (sic) its assessment of the evidence and raised doubt as to the applicant having any association with the political party as claimed.  The Tribunal also raised that the applicant hadn’t actually answered some of the questions, but he had instead reiterated what was written in his statement.

2. This ground asserts that the Tribunal had a responsibility to either reframe, repeat or more clearly ask questions of the applicant at the hearing so the applicant could properly answer them and its failure to do so led it into jurisdictional error.  The ground, though not in any detail, also asserts that the interpreter at the Tribunal hearing mistranslated between English and Mandarin.

3. I will first address the claim in respect of mistranslation at the hearing.  I note the applicant has not elected to rely on a transcript of the Tribunal hearing and/or identify any errors of interpretation that occurred during the hearing.  In SZLSY v Minister for Immigration and Citizenship [2008] FCA 1144 his Honour McKerracher J dealt in part with a claim in respect of the standard of interpretation at the Tribunal hearing where no transcript thereof was provided to the Court. His Honour stated at [15]-[17]:

   15. At the hearing of the appeal before me, the appellant submitted that she believed there were difficulties with the interpretation of her evidence before the Tribunal because she was repeatedly asked the same question many times. The first example that she gave of this repeated questioning was in relation to the topic of why she feared persecution by attending church in China. In reply, the appellant made the point that there were other questions repeated on several occasions. She said that she had played the tape of the interview to a friend who agreed with her that it sounded as though the interpretation was inadequate.

   16. The difficulties in interpretation have not been raised on any previous occasion. It is inappropriate that they be raised for the first time on appeal. No transcript or tape was provided to support the assertions. No specific incorrect translations were identified. In the absence of evidence before the Court disclosing any incompetence or other defect in interpretation such that the appellant was, in effect, prevented from giving her evidence in relation to a matter of significance for her claim or the Tribunal’s decision, there is no support for the appellant’s fresh contention about interpretation difficulties: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6.

   17. To the extent that the appellant complains of questioning being repeated on certain topics, this feature of the hearing would not necessarily point only to interpretation difficulties. It is also quite consistent with the possibility of the Tribunal repeatedly testing certain basic propositions on which it is required to be satisfied rather than simply taking it at face value. The repetition of questions alone, does not point to any jurisdictional error.

   Given no transcript was provided to the Court, it follows there can be no support for a contention about the standard of interpretation or any interpretation difficulties at the hearing. 

1. In respect of the ground as pleaded more generally, I accept the Minister’s characterisation of the alleged error reproduced at [23] above. Findings in respect of the applicant’s credibility and veracity of his evidence are findings of fact par excellence.  His Honour McHugh J stated in Durairajasingham (supra) at [67]:

   67. … [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. …

2. The Tribunal stated in its Decision Record at [56] (CB 97):

   56.    The Tribunal finds that the applicant’s overall manner, in delaying or not answering when asked questions, and in providing vague evidence regarding events that he submitted occurred (such as his car being damaged, who attacked him and his family and when this occurred), and his providing false evidence (regarding his overseas travel) lead the Tribunal to find that the applicant was not credible.

   The Tribunal found the applicant was not a witness of credit on the basis of the reasons reproduced above.

3. His Honour Graham J, in SZMDB v Minister for Immigration and Citizenship (supra), stated at [36]:

   36. Proceedings before the tribunal are not adversarial, but inquisitorial. The tribunal is not in the position of a contradictor of the case being advanced by an applicant. A tribunal member conducting an inquiry is not an adversarial cross-examiner, but an inquisitor obliged to be fair. In an application for a review before the tribunal, it is for the applicant to advance whatever evidence or argument he wishes to advance, and for the tribunal to decide whether his claim has been made out; it is not part of the function of the tribunal to seek to damage the credibility of an applicant’s story in a manner a cross-examiner might seek to damage the credibility of a witness being cross-examined in adversarial litigation. The tribunal conducting an inquisitorial hearing is not obliged to prompt and stimulate an elaboration which an applicant chooses not to embark on. See per Gummow and Heydon JJ in Re Minister for Immigration and Multicultural Affairs); Ex parte Applicant S154/2002 (2003) 201 ALR 437 ; 75 ALD 1 ; [2003] HCA 60 at [57]–[58]; see also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 ; 231 ALR 592 ; 93 ALD 300 ; [2006] HCA 63 at [47] and Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 ; 231 ALR 340 ; 92 ALD 513 ; [2006] HCA 53 at [40].

   I accept the Minister’s submissions the Tribunal was under no obligation to prompt and stimulate an elaboration the applicant chose not to make.

4. Consequently, no error in the Tribunal’s Decision Record of the kind suggested by Ground 1 of the application is apparent or sustainable.  Accordingly, this ground must fail.

Ground 2

1. Paragraph 59 of the Tribunal’s Decision Record (CB 97) states:

   59.    In the present case the evidence does not provide a sufficient basis to be satisfied that the applicant has ever joined an opposition political party, been involved with political activities or attended protests against the government, or suffered threats or other harm in Malaysia from political or other enemies or anybody else, or that he has ever been subjected to any form of harm there.  He does not claim to fear harm in Malaysia for any other reason.

2. The applicant’s claim in this ground is that, though he did not provide evidence to the Tribunal that he joined an opposition political party in Malaysia, the Tribunal had no evidence that he did not join an opposition political party in Malaysia and it should not have found that he hadn’t done so.  His Honour Heerey J held in Selvadurai (supra) at 348 that the onus is on the applicant to make out his or her claim or claims and a decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out. I accept the Minister’s submissions there is nothing to suggest the Tribunal’s approach in this respect was anything other than orthodox or that these findings were not open to it on the material before it.

3. Accordingly, this ground must also fail.

Conclusion

1. Neither of the pleaded grounds in the application can be sustained. On a fair reading of the Tribunal’s Decision Record there is no error of law apparent. The Tribunal further had regard to the complementary protection provisions under s.36(2)(aa) of the Migration Act at [64] of the Decision Record (CB 98) and found the applicant was not a person to whom Australia had protection obligations under those provisions. Consequently, the application for review of the Tribunal’s decision should be dismissed with costs awarded to the Minister.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date: 25 March 2014