SZUCO v Minister for Immigration and Border Protection
[2016] FCA 643
•26 May 2016
FEDERAL COURT OF AUSTRALIA
SZUCO v Minister for Immigration and Border Protection [2016] FCA 643
Appeal from: SZUCO & Ors v Minister for Immigration & Anor [2016] FCCA 459 File number: NSD 291 of 2016 Judge: PAGONE J Date of judgment: 26 May 2016 Catchwords: MIGRATION – Application for leave to appeal from decision of Federal Circuit Court – Judicial review of Refugee Review Tribunal – No prospects of successful appeal – Application dismissed Legislation: Federal Circuit Court Rules 2001 (Cth)
Federal Court of Australia Act 1976 (Cth)
Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Date of hearing: 26 May 2016 Date of publication of reasons: 2 June 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 7 Counsel for the First Applicant: The first applicant appeared in person assisted by an interpreter Counsel for the Second, Third, Fourth and Fifth Applicants: The second, third and fourth applicants did not appear Counsel for the Respondents: Ms N Blake of Clayton Utz ORDERS
NSD 291 of 2016 BETWEEN: SZUCO
First Applicant
SZUCP
Second Applicant
SZUCQ (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
PAGONE J
DATE OF ORDER:
26 MAY 2016
THE COURT ORDERS THAT:
1.Pursuant to r 9.63(1) of the Federal Court Rules 2011 (Cth) (“the Rules), the first applicant be appointed the litigation representative of the second and third applicants.
2.The need for formal compliance of r 9.63 of the Rules is waived pursuant to r 1.34 of the Rules.
3.The application be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)PAGONE J:
This is an application for leave to appeal from a decision of the Federal Circuit Court made on 15 February 2016 dismissing an application for judicial review of a decision by the Refugee Review Tribunal on 25 February 2014. The Federal Circuit Court dismissed the application for judicial review pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). The dismissal of an application under that rule is interlocutory by reason of sub-rule 44.12(2). That means that an appeal from such an order requires that leave be given pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). An application for leave to appeal from an interlocutory judgment requires an applicant to show that there is sufficient doubt as to the correctness of the judgment below to warrant review, and that substantial injustice would be suffered by an applicant if leave were refused, assuming the judgment to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 398-9.
The first applicant is a citizen of Malaysia. He claims that he was the victim of harassment and intimidation between 2011 and 2012 by a terrorist group, Kumpilan Mujahideen Malaysia (“KMM”), and that it was dangerous for him to become involved with them. He appeared unrepresented at the hearing of the application for leave to appeal on his own behalf and on behalf of the other applicants, but was assisted by an interpreter at the hearing. He recounted to the Court the claims that he has previously made about the concerns for his safety and the safety of his family, and that in his earlier applications he had claimed that he and his wife and children have received death threats and that the terrorists had ordered him to be killed or employed by the group. He had also claimed that he was told that the government and police work for the KMM and would not be able to help him. What he said to the Court today is consistent with those claims. He maintained that he left Malaysia not because of lifestyle or economic concerns, but because of his political concerns. He informed the Court that in Malaysia he had a good life but that he left because of concerns of safety for himself and his family.
The applicants’ application for leave to appeal was supported by an affidavit dated 29 February 2016. The affidavit contained no factual material that could be regarded as supporting the claim. The application itself contained six grounds in support of the application for leave to appeal, which were relevantly:
1.The First and the Second Respondents purported to make improper exercise of power.
2.The First and the Second respondents took into account irrelevant consideration when determining the claims.
3.The Federal Circuit Court failed to consider the seriousness of the Applicants’ fear of returning back to their country.
4.The First and the Second respondents used the interpreter / translator during the interview and during the interview there were miscommunication which were not addressed when determining my claims.
5.They First and the Second respondents failed to take the relevant considerations into account in the exercise of their power.
6.The decision to reject the Applicants’ claims made by the AAT was unreasonable, uncertain. improper and without any evidence or legal grounds.
The application for leave was also supported by a draft notice of appeal containing two grounds upon which the appeal was to be sought, namely:
The First and second respondents took into account irrelevant considerations when determining the claims.
The Federal Circuit Court failed to consider the seriousness of the applicants fear of returning back to their country.
The two grounds to be relied upon in the proposed notice of appeal are essentially the same as those which had been raised with the Federal Circuit Court and set out in the reasons for decision. The Federal Circuit Court said at [9]:
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.
The words in the application in the Federal Circuit Court and those in the draft notice of appeal are different, but they are essentially the same grounds. The six grounds in the application for leave to appeal overlap with the grounds in the proposed notice of appeal and those considered by his Honour in the Federal Circuit Court. It is clear that the grounds of appeal, to the extent of the overlap, cannot succeed and have no merit. They identify grounds without giving details of what is said to be any error by the Federal Circuit Court, and therefore, cannot be made out.
It is clear from the decision of the Federal Circuit Court that the grounds relied upon were considered by the judge and that they were dismissed for the reasons that were given by the Court. The Federal Circuit Court said at [11] to [16]:
Ground 1
[11]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.
[12]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.
[13]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
[14]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.
[15]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.
[16]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.
There is no error shown in the reasoning of the Court in the way in which the grounds were considered and decided.
The grounds in the application also rely upon two matters that were not in the draft notice of appeal or in the grounds identified by his Honour at [9]. One of those is the fourth ground of the application in which it is complained that the interpreter/translator during the interview was miscommunicating and that the miscommunication was not addressed when determining the claims. There is no material upon which that ground can be made out, and accordingly, cannot be accepted as a reason for giving leave to appeal.
The last matter in the grounds of application, which was also not raised in the draft notice of appeal or expressly found in [9] of the reasons of the Federal Circuit Court, is the third ground which claims that the Federal Circuit Court failed to consider the seriousness of the fear of the applicants of returning back to their country. This ground seeks to have the Court undertake a review of the merits of the case, which the Court has no power to do: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. However, the materials reveal the ground to have no substance. It is clear from the reasons of the Tribunal that the Tribunal was not satisfied that the applicants were persons to whom Australia has protection obligations. The Tribunal did not accept the first applicant as being a credible, truthful or reliable witness. The Tribunal formed the view that the applicant had fabricated his claims. The Tribunal said at [31] to [39]:
[31]As to him having faced the difficulties he claims in Malaysia, for the reasons that follow the Tribunal does not accept the applicant is a credible witness and ever faced the difficulties he claimed in Malaysia. It does not accept as true that the applicant faced any problems from the police, government officials, KMM or drug lords or any other gang members because of his involvement as strata manager in a building that was being used by drug lords and/or the KMM or any other gang or group, or because of his enquires or investigations of them or because he knows their faces or will be targeted for these reasons on their return. It also does not accept as true that they threatened to harm the other applicants or will on their return. It finds the applicant’s testimony inconsistent, amounting to a fabrication, for the reasons below. This leads the Tribunal to find that the applicant is not a witness of truth and neither he nor his family was targeted in Malaysia in the manner he claims.
[32]In his statement the applicant referred to finding three or four unmanned cars in the compound he was managing in the latter part of 2011, who the tenant advised were owned by drug lords. He advised the security guard told him not to question him as he feared for his life. In his statement he said after telling the security guard to personally attend to the car owners, they sped away honking at him when they passed him. In his statement he said that in May 2012 he found the same cars again and also in October 2012, he indicated the cars, plural were parked there. However at the hearing before me he advised that there was only ever one car in all of these events, not three or four cars. In particular he confirmed at hearing that he only ever saw one car in the latter part of 2011 and only one car honked at him as he left. When this inconsistency was raised with him and the Tribunal suggested to him that it questions his credibility and whether the events occurred as he claimed are true, he indicated that it was the same car and the one he recognised is the black sedan, which is the one he previously described at the hearing. I do not accept this response as it does not answer why his evidence has changed or differs but reiterates what he earlier said in the hearing. I view the inconsistency to be significant as it is central to his claim as to why he is being targeted, because he was investigating the men driving the cars. I expect that if the events occurred as he claimed that he would be consistent as to whether he saw one c.ar or three or four cars. This adds to my finding that the applicant is not a credible witness.
[33]Further, the applicant claims in his statement that in the latter part of 2011 after he came upon the cars he ordered the security guard to personally attend to the unit where the car owners were and to ask them to leave the premises immediately. However at the hearing before me he advised that he ordered the security guard to go to that car to ask him to leave so he would be out of sight. When this was raised with the applicant he indicated that in reality he got the security guard to look for the owner of the care. I do not accept this response and may expect if he was in the compound with the car(s) he would be consistent as to whether the security guard went over to the car or went to the unit or went looking for the owner. While on its own this may not be sufficient to undermine the applicant’s credibility together with the other significant factors this adds to my finding that the applicant is not a witness of truth.
[34]In his statement the applicant indicated that after the 2011 incident and before the May 2012 incident he visited the compound late at night but the Chairman of the residence ordered him to go home as his working hours were over and there were no emergency calls for him to attend; He stated he could not disobey the orders as he suspected he could lose his job. However at the hearing before me he advised that in that period while he worked 9am to 5pm he used to randomly attend that compound at night. He said it was fine and safe and ok. When I questioned him about the inconsistency and why he did not indicate that the Chairman spoke to him about not going and he did not want to disobey orders, he indicated that he did not go there every night. I do not accept this response and expect he would be consistent and advise at hearing if he stopped going after he was advised by the Chairman not to go this adds to my finding the applicant is not a credible witness.
[35]In his Statement the applicant indicates that after being released from the police station in October 2012 that on return to his home his father told him that he had received a call from an unknown man who threatened the applicant. In his statement he claims he received a further phone call the following week from the same men who beat him and that they said they would call him back. In his statement he indicates he again received a further call from the same men a week layer asking whether he is prepared to join him. He advised the men said that they have been watching him around the clock and he should be ready to join in the following month. He said he would be taken to Sampora and given military and martial arts training. He claims he left the house and went into hiding. However when I questioned him at the hearing before me as to the series of events and what led him to leave Malaysia; he confirmed that his father received a phone call threatening him and his family while he was being detained but indicated he received only one further phone call from the men who had beaten him. He claims he then fled Malaysia. Even when I asked whether he had told me everything that happened in 2012 and 2011 and whether he had anything to add and whether he had given me a clear account of the events that led him to leave Malaysia, he did not mention receiving a second phone call himself after he was released in October 2012, and indicated he had provided the chronology of events. When this inconsistency was raised with him, the applicant said that the first phone call was after May 2012 and then he received only one after being detained in October 2012. I do not accept this response to explain the inconsistency as his statement clearly indicates he received two threatening phone calls after October 2012. Further, I note in this regard that he did not indicate before me that in the first phone call they advised that they would call him back in a week for his answer. I view these inconsistencies to be significant as it was the phone calls after October 2012 which led him to leave Malaysia. I therefore expect he would be consistent as to how many phone calls he received and provide a consistent chronology of the events before he left when asked to .describe what happened. This is particularly so as it was approximately 18 months ago. This adds to my finding that the applicant is not a credible witness.
[36]Further, at the hearing before me, the applicant said that when he was beaten at the police station in October 2012, he was beaten by two police officers and three plain clothes men. However as I raised with him via the process outlined in s.424AA, at the Department interview he indicated that he was only beaten by one plain clothes person with the two police men. The following is a record of what was said at that interview.
Q:Why do you think the police told you to mind your own business?
A:That is what I don’t get why they said like that. After I got arrested I have been investigated separately and then have been told why are you stubborn about this place, then I have been taken inside the lock up, as separate area. I have been beaten and bashed until I faint and lost consciousness.
Q: By the police?
A: By the police and one person without uniform
[37]In response when the inconsistency was raised with him the applicant indicated that what he said at the hearing is what he remembered and maybe what he said at the Department interview was wrong. He said the Department interview was very difficult, like a dialogue. I do not accept this explanation and expect if he was beaten as he claimed he would be consistent as to how many people in plain clothes beat him, due to the significance of the event. This is particularly so as it was only two years ago and the only time he indicates he was beaten in his evidence. Further, even if the interview was a dialogue I expect he would be consistent as to how many men not in uniform beat him. This adds to my finding that the applicant is not a credible witness.
[38]At the hearing before me the applicant indicated that in the phone call he received in October 2012 which led him to flee into hiding, the men who he thinks are form the KMM threatened to not only kill him but also his wife and children. He also said that when they called his father when he was detained by the police in October 2012 they threatened his family could be in trouble if he made it a big thing. Information in the applications indicates that his family arrived in Australia approximately two weeks after the applicant. He indicated his family, the other applicants, remained living at their home until they departed for Australia. When I questioned the plausibility as why he would go into hiding himself in Selangor and then flee to Australia and leave his family at home, when it is his evidence that they too had been threatened with their lives; he responded that he told his father to look after them and said they did not go outside. He said he was in danger and had to flee. On the basis of his response I can find no reasonable explanation having considered the applicant’s response as to why the applicant would leave his family at their home, which he claimed in his statement, was being watched by the people threatening him and his family, for a period of time, more than two weeks while he fled into hiding, when their lives had been threatened. I expect if true that his family’s lives were threatened that he would organize for them to live elsewhere as well and not rely on the protection of his father, who was 69 years old at the time and a pensioner. This adds to my finding the applicant is not a credible witness.
[39]On the basis of the cumulative impact of the applicant’s inconsistencies in evidence and implausible evidence, the Tribunal does not believe that the applicant is being truthful. For all the above reasons, the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome. It follows it does not accept that the applicant ever encountered any of the difficulties he described as strata manager of the respective premises, nor was arrested, detained, beaten, threatened or his family threatened or went into hiding.
(emphasis in original, footnotes omitted)
These passages show that the Tribunal did consider the seriousness of the claims made by the applicants of their fears of returning to their country but that it rejected the application because it did not believe the first applicant’s evidence about leaving Malaysia.
Accordingly, the application will be dismissed with costs, but excluding from that order any of the costs incurred in relation to the application for the costs to be in a fixed sum.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone. Associate:
Dated: 2 June 2016
SCHEDULE OF PARTIES
NSD 291 of 2016 Applicants
Fourth Applicant:
SZUCR
Fifth Applicant:
SZUCS
0
4
2