SZUCO v Minister for Immigration

[2016] FCCA 459

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUCO & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 459

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the tribunal ignored relevant material.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 474

Federal Circuit Court Rules 2001, r.44.12

General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Agar v Hyde (2000) 201 CLR 552
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

First Applicant: SZUCO

Second Applicant: SZUCP

Third Applicant: SZUCQ

Fourth Applicant: SZUCR

Fifth Applicant: SZUCS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 782 of 2014

Judgment of: Judge Cameron

Hearing date: 15 February 2016

Date of Last Submission: 15 February 2016

Delivered at: Sydney

Delivered on: 15 February 2016

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Ms S. Zarucki of Clayton Utz

ORDERS

1. Pursuant to rule 44.12 of the Court’s Rules, the application be dismissed.

2. The first and fifth applicants pay the first respondent’s costs fixed in the amount of $3,326.00.

3. The name of the first respondent be amended in the Court record to Minister for Immigration & Border Protection.

4. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in the proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 782 of 2014

SZUCO

First Applicant

SZUCP

Second Applicant

SZUCQ

Third Applicant

SZUCR

Fourth Applicant

SZUCS

Fifth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant is a citizen of Malaysia who arrived in Australia on 15 December 2012. On 22 February 2013 he lodged an application for a protection visa with the Department of Immigration and Border Protection, alleging that he feared persecution in Malaysia because of his interactions with members of a terrorist group. The fifth applicant, who is his wife, and the second, third and fourth applicants, who are his children, were included in his application as members of his family unit. On 31 July 2013 the first applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicants then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

2. The matter is before the Court for consideration of the applicants’ application that the respondents should show cause why relief should not be granted to them.

3. At a hearing to determine whether an order to show cause should be made, the order will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 if the applicant does not have an arguable case against the respondents.  The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).

4. It should be noted that in proceedings for judicial review of a Tribunal decision the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, to be successful in the present application the applicants had to demonstrate that it was at least arguable that the Tribunal’s decision was effected by jurisdictional error.

5. For the reasons which follow, the application will be dismissed.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the first applicant’s claim for protection.  As summarised by the Tribunal, the first applicant relevantly made the following claims:

   a)he is a Muslim Malay.  In 2009 he began working at government owned buildings in a position similar to that of a strata manager;

   b)in 2011 he found some cars parked at the premises he managed and when he questioned the security guard about them, the latter pleaded with him not to question him as he feared for his life.  One of the tenants told him the cars belonged to drug lords.  After he ordered the security guard to question the owners of the cars, the latter sped away sounding their horns at him.  The chairman of the residence told him not to take any action;

   c)in May 2012 he found the same cars parked outside the premises.  He reported them to the local police but the police told him not to involve himself in the matter.  A few weeks later someone telephoned him and threatened that he would be killed if he continued to pursue the matter;

   d)in October 2012 a fight broke out at the premises and three youths and the security guard were severely beaten.  When he arrived at the premises, the cars he had previously reported to the police were there.  The police were also present but did not take any action against the car owners.  Instead he and the security guard were arrested and taken to a police station;

   e)at the police station he was questioned and told a case would be filed against him for suspected involvement in the fight.  He was detained overnight and beaten by the police and people in plain clothes;

   f)he was released the next day and the police told him that the people he was dealing with belonged to the Kumpilan Mujahideen Malaysia (“KMM”), a terrorist group, and that it was dangerous for him to become involved with them;

   g)when he returned home his father told him that someone had telephoned and threatened to abduct and kill him if he investigated the assault of the guard and three youths;

   h)in the week following his release he received a telephone call from the people who had beaten him in detention.  They said that their boss had ordered them to kill him or recruit him to work for them.  They also threatened to kill his wife and children;

   i)a week later he received a second telephone call from a person who identified himself as a member of the KMM.  The man asked if he was prepared to join them and told him that he was under continuous surveillance.  He was told to prepare to join them and that he would be taken to another area to receive military and martial arts training.  He was also told that the government and police worked for the KMM and would not be able to help him;

   j)after the second telephone call he went into hiding at a friend’s home and then travelled to Australia; and

   k)if he returned to Malaysia he would be killed because he knows the faces of the KMM members who beat him and telephoned him.  The police were involved with the KMM and would not protect him.

The Tribunal’s decision and reasons

1. After discussing the claims made by the first applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 or s.36(2)(aa) of the Act. The Tribunal found that the first applicant was not a credible, truthful or reliable witness and that he had fabricated his claims. It made that finding based on the following inconsistencies in the first applicant’s evidence:

   a)in his statement attached to his protection visa application the first applicant claimed that in 2011 he found three or four cars parked in the premises he managed and that in May 2012 he found the same cars parked there.  He also referred to cars (plural) in reference to the October 2012 incident.  However, at the Tribunal hearing he stated that there had only ever been one car during all those incidents, not three or four, and specifically that in 2011 he had only seen one car and that only one car had sounded its horn at him;

   b)in his statement the first applicant claimed that when he found the cars in 2011 he ordered the security guard to attend the unit where the car owners were and ask them to leave the premises.  However, at the Tribunal hearing he said that he ordered the security guard to go to the car, not to a unit, and ask the owner of the car to leave;

   c)in his statement the first applicant stated that after the 2011 incident and before the May 2012 incident he visited the premises late at night and was told by the chairman of the residence to go home as his working hours were finished.  However, at the Tribunal hearing he stated that although in that period he worked from 9am to 5pm, he had randomly visited the premises at night and had not had any problems;

   d)while in his statement the first applicant claimed to have received two telephone calls from the KMM after his release from detention in October 2012, at the Tribunal hearing he claimed to have received only one telephone call;

   e)at his departmental interview the first applicant claimed that during his detention he was beaten by two policemen and one person in plain clothes but at the Tribunal hearing he claimed to have been beaten by two police officers and three people in plain clothes; and

   f)although the first applicant claimed that in the telephone call he received in October 2012 the KMM members had threatened to kill his wife and children, he gave evidence that his family had remained living at their home until they departed for Australia, arriving two weeks after he did.  When the Tribunal questioned him about this, the first applicant claimed that he had told his father to look after them and that they had not gone outside.  The Tribunal did not accept that as a reasonable explanation for the first applicant’s behaviour in leaving his family at their home while, he claimed, it was being watched by people who had threatened them.  It found that if the first applicant’s family’s lives had been threatened he would have organised for them to live elsewhere and would not have relied on his father, who at the time was sixty-nine years old and a pensioner, to protect them.

2. Having found that the first applicant was not a credible witness, the Tribunal did not accept any of the claims he made or that he had encountered any harm or difficulties in Malaysia.  The Tribunal therefore did not accept that the applicants would face harm if they returned to Malaysia.

Proceedings in this Court

1. In the application commencing these proceedings the applicants alleged:

   1.The decision of Refugee Review Tribunal involves jurisdictional error.

   2.The Tribunal ignored relevant material.

2. Neither of the two grounds of the application was particularised and the applicants did not file written submissions which might have given some substance to their allegations. 

Ground 1

1. At the hearing of this matter the first applicant said, presumably in relation to the first ground of the application, that the Tribunal had not looked at things clearly, had not looked at his case in a relaxed way, had not looked at his case seriously and had wanted to push the case through.  To the extent that these matters were not an invitation to undertake impermissible merits review, they amounted to a challenge to the Tribunal’s bona fides in its conduct of the review. 

2. If that was what the applicants were pressing on the Court that would be a serious allegation and one which would have to be made out clearly.  However, the applicants put nothing before the Court which would suggest that the Tribunal conducted itself otherwise than in a conscientious manner and the Tribunal’s decision record does not bear out the applicants’ late assertions.  In that connection it should also be noted that no relevant challenge was made to the accuracy of the Tribunal’s summary of the hearing before it. 

3. Given what the Tribunal set out in its reasons concerning its conduct of its review, its analysis of the information at its disposal and the way that reasoning was expressed in its decision record, I am not satisfied that there was any want of good faith on the Tribunal’s part or that it did anything other than conduct a thorough review. 

Ground 2

1. The first applicant submitted in relation to the second ground of the application that the information which the Tribunal considered in connection with his allegations concerning his encounters with cars in the car park of the building he helped to manage and the beatings he suffered at the police station did not reflect his recollection of events.  It was difficult to understand the point that the first applicant sought to make in his submissions on this issue but it might be inferred that his argument was that the Tribunal had not considered the correct information. 

2. As already noted, the first applicant did not suggest that the Tribunal’s summary of the hearing before it was inaccurate.  What he said was that it did not reflect his recollection of the relevant events.  Be that as it may, the concern which the Tribunal had in relation to those issues was not so much what the correct version of events was, but that the first applicant gave one version of events to the Minister’s department in support of the visa application and a different versions of those events to the Tribunal at its hearing.  The Tribunal’s concern was with the reliability of the first applicant’s evidence and, as noted earlier in these reasons, it rejected his claims because it did not find his evidence dependable.

Generally

1. The case as it is pleaded in the initiating application is not arguable because it lacks the particularisation which would give it meaningful substance.  Nothing the first applicant said in his address to the Court at the hearing of this application indicated that any useful particularisation of those allegations could be made such that an amendment to the application might make it arguable. 

Conclusion

1. The applicants have not satisfied me that the application has raised an arguable case for the relief claimed.  Consequently, it will be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  4 March 2016