SZSUT v Minister for Immigration

[2014] FCCA 1084

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSUT v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1084

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – where Tribunal affirmed decision of delegate on grounds of credibility – whether Tribunal reached adverse conclusions not open on the material before it without giving applicant opportunity to be heard – whether Tribunal failed to adequately consider applicant’s claims – whether Tribunal fell into jurisdictional error.

Legislation:  

Migration Act1958 (Cth) ss.65, 36(2)(aa)

Applicant: SZSUT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 947 of 2013

Judgment of: Judge Raphael

Hearing date: 21 May 2014

Date of Last Submission: 21 May 2014

Delivered at: Sydney

Delivered on: 21 May 2014

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the respondents’ costs assessed in the sum of $4,000.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 947 of 2013

SZSUT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant, who is a citizen of Malaysia, last arrived in Australia on or around 10 April 2012, although he had previously been in the country in 2011 before returning to Malaysia. On 4 June 2012 he applied to the Department of Immigration for a Protection (Class XA) visa under s.65 of the Migration Act1958 (Cth).[1]  A delegate of the Minister refused to grant a protection visa on 26 June 2012, and the applicant applied for review of that decision from the Refugee Review Tribunal.  The applicant was living in Griffith at the time.  He attended a hearing before the Tribunal on 5 April 2013 in Griffith where he was given an opportunity to give evidence and present arguments in support of his application.  On 8 April 2013 the Tribunal affirmed the decision not to grant him a protection visa.

   [1] The Act.

2. The story that the applicant told to support his claim to be a person to whom Australia owed protection obligations revolves around him having operated a business in his hometown and borrowing money from a Chinese-Malay gang leader.  He claimed that, when he was unable to repay the money together with the high interest demanded, three gang members came to his shop and started to ransack it.  They had guns and threatened to kill him.  They took his cash and cashbox and said they would be back and they would kill him if he did not pay all the money.  The applicant claimed he reported the matter to the police but said they were corrupt and involved with gangs.  The applicant said that he took advantage of his multiple entry visa to Australia to leave Malaysia at that time.

3. The Tribunal questioned the applicant upon his story and, in particular, raised with him concerns as to how he claimed that he was continuing to operate a business in Malaysia when he was spending so much time in Australia.  The applicant claimed that he was in Australia to earn money so that he could pay the rent and wages on the business in Malaysia, although it had ceased operating in April 2012.

4. The Tribunal questioned the applicant as to why he had not applied for a protection visa when he came to Australia in 2011, as he had claimed to have a general fear of persecution in Sabah, where there was a Philippine uprising.

5. Most significantly, the Tribunal put to the applicant that it had in its possession another Tribunal decision in respect of a person who had lived at the same address as the applicant and who had made the same claims of leaving Malaysia because of fear of gang leaders who had lent him money for the purposes of his business.  Although the applicant claimed that he knew nothing about this and said that it must be a coincidence, the Tribunal concluded:

   “The applicant’s claims when broken down to basics are near the same as a person who lived in the same apartment as he now lives in.  That person lived in his apartment the year before the applicant commenced living in the apartment.  They are both Pakistani-background Malaysian citizens, from Sabah, businessmen, borrowed money or involved in such, from a Chinese gang leader named Ah Long, couldn’t repay the money, were threatened and had to flee the country and come to Australia.  The applicant’s only explanation of this is coincidence.  I have carefully considered the matter and considered the chance of coincidence as zero. I do not accept the explanation as reasonable to believe in the circumstances and find that the applicant has copied another person’s claims and that he has fabricated his claims. 

   In making the above findings I have also taken into account other credibility concerns including:  no mention is made in the applicant’s original application of a business named KRAK, commencing in March 2011.  The last business detailed in Employment History is KRK commenced in October 2007; I do not accept as reasonable to believe that if a person started a business in March 2011 they would then six months later leave Malaysia and spend 3 months in Australia, and come here as a tourist to undertake sightseeing, and over the next several months, spend so little time in Malaysia and attending to their business.  I find that the applicant was not operating a business as claimed, and further that the reason he came to Australia was to work.” [35] [CB 79]

6. The Tribunal also considered the applicant’s claims under s.36(2)(aa) of the Act but found that, as it did not believe that the applicant had any fear of significant harm in Malaysia, he was not a person to whom the complementary protection provisions applied.

7. On 6 May 2013 the applicant filed an application with this court seeking review of the Tribunal’s decision.  There were three grounds of application.  The first was:

   “The Tribunal denied the applicant procedural fairness by reaching adverse conclusions that certain aspects of his claims were implausible, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters.”

8. This is a formulation that the court has seen over several years.  It actually says nothing of any consequence that would assist the court in coming to a conclusion whether there is any basis for the claim.  There are no particulars of why the conclusions of the Tribunal were not obviously open on the known material and no indication of why the applicant was not given an opportunity to be heard. 

9. In all these cases, the applicant attends a directions hearing some months before the case is to be heard.  This applicant attended before me on 12 December 2013.  He had the benefit of an interpreter with him.  One of the orders that the court made was that:

   “The applicant must file and serve any affidavit containing additional evidence to be relied upon, including any transcript of a Tribunal hearing, by 13 February 2014.”

   No transcript was filed either on 13 February or at any time thereafter.  Today, the applicant told the court that he had a police report and that he wanted to show it to the Tribunal but the Tribunal refused to consider it.  There is no mention of the police report in the Tribunal’s decision record; there is no copy of it in the green book; and there is no evidence in the form of a transcript that an offer to produce the document was made and rejected.  Interestingly, in the delegate’s decision at [CB43], the following is found:

   “The applicant stated that the local police are corrupt and involved with gangs.  The applicant did not provide any evidence to support his allegations.”

   Likewise, in the absence of any evidence that the Tribunal declined to consider a police report that the applicant had, the court is unable to conclude that he had not been given a proper opportunity to be heard.

10. The second ground of application is:

    “The Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and consequences of claims.  The Tribunal did not consider the applicant who had been under immense and intimidating pressure from Malay Gang and threatened to kill him.”

    With respect to the applicant, this is exactly what the Tribunal did.  It considered the applicant’s circumstances and his claims.  It came to the conclusion that the claims were false.  It concluded that it could not believe the applicant upon his story.  That is a finding upon credibility which is one for the Tribunal par excellence.  Given the evidence that the Tribunal did have before it, which has been rehearsed in short form in these reasons, it cannot be said that the Tribunal came to those conclusions improperly.  The view it took of the relationship between the application and the one made by the previous tenant of the property was open to it and the court cannot interfere.

11. The third ground is:

    “The Tribunal had no jurisdiction to make the said decision because its ‘reasonable satisfaction’ was not arrived in accordance with the provisions of the Migration Act.”

    Once again, this ground is not particularised and the court does not propose to hazard a guess as to what provisions of the Act the applicant may have been referring to.  This is the applicant’s claim; he clearly did not write this document himself.  He must bear responsibility for any failure on the part of his “friends” for the inadequacy of the grounds.

12. It follows from the above that the court has no alternative but to dismiss this application and to order that the applicant pay the respondents’ costs which it assesses in the sum of $4,000.00. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  26 May 2014