SZCOS v Minister for Immigration & Citizenship

The current appeal 10 Before this Court the appellant relies on five grounds of appeal. Grounds one to three are identical to those relied upon before the Federal Magistrate while ground four was generally raised and addressed by his Honour. The grounds are that the Federal Magistrate: 1. … failed to hold that the Tribunal made jurisdictional error as it exceeded its power by acting arbitrarily and/or capriciously in making a credibility finding which resulted in the Tribunal reaching a lack of satisfaction that the Appellant is not a refugee. 2. … failed to hold that the Tribunal made jurisdictional error as it was not open on the evidence for the Tribunal to make a finding that "It seemed the applicant had changed his evidence about whether he knew what the charges were when it appeared that not knowing what they were might undermine his claim. This indicates that the applicant was not being truthful". 3. … failed to hold that the Tribunal made jurisdictional error in that it made a credibility finding against the appellant without asking a question it should have asked. 4. … erred by not holding that the Tribunal made jurisdictional error as it did not deal with the appellant's case in a bona fide manner. The Magistrate also failed to hold that the Tribunal was biased as it prejudged the appellant's case and looked for reasons to reject his case. 11 On the appeal the appellant raises a new argument said to arise from Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379. The appellant submits that the Tribunal failed to apply the correct test for a well-founded fear of persecution. The appellant submits that, the Tribunal should have applied the required "real chance" test, but instead applied a "probability" test and therefore based its decision on inadequate evidence. Specifically, the appellant submits that for each individual finding of fact, the Tribunal must decide whether that fact is true on the standard of "real chance". If there is a real chance that each fact giving rise to the appellant's individual claims is true, the appellant says that the Tribunal must find itself satisfied that there is a well-founded fear of persecution.

Ground 1: Arbitrary and/or capricious action on the part of the Tribunal in making a credibility finding 12 The appellant submits that the Tribunal's finding that his testimony was rehearsed and not a product of his personal experience is not supported. The appellant says that there is no material in the transcript or in the written material given to the Tribunal to support this finding, that the Tribunal could not have formed this view based upon the demeanour of the appellant alone and that, if it did so, such a finding could not be justified. Accordingly, the appellant submits that the Tribunal acted arbitrarily or capriciously in making its credibility finding. 13 The appellant requested that Smith FM listen to the tapes of the hearing. His Honour declined to do so and noted at [29] that this exercise would not put him in an equal position with the Tribunal so as to allow him to find that its conclusions were not open to it as a matter of law. His Honour noted that, even if he listened to the tapes, he 'would still be left with the unknown area of the visual and atmospheric aspects of the hearing which must have formed a part in the Tribunal's own assessment'. From a reading of the transcript his Honour concluded that it may have been open to the Tribunal, from the language and responsiveness of the appellant to the Tribunal's questions, to form the impression that the appellant was speaking from a script rather than from his actual memory (at [30]). His Honour noted that the appellant had not pointed to any particular passage in the transcript to demonstrate the contrary. 14 The appellant contends that Smith FM erred in this finding and that the appellant's manner could have been ascertained by his Honour examining the transcript and listening to the tapes. The appellant points to several authorities that caution against findings made by reference to demeanour alone: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In liq) (1999) 160 ALR 583 per Kirby J at [88]; WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597 at [17]-[18] referring to SAAK v Minister for Immigration & Multicultural Affairs (2002) 121 FCR 185 at [21]-[31]. 15 At [25] Smith FM acknowledged the doubts expressed in Fox v Percy (2003) 214 CLR 118 at [31] about the ability to tell truth from falsehood on the basis of appearances of witnesses, without basing conclusions as far as possible on contemporary materials, objective facts and the logic of events. His Honour found (at [26]) that: … the difficulty facing the … Tribunal in a case such as the present is that it must assess the applicant's evidence given in an interview, without "contemporary material" nor "objectively established facts" which can provide easy tests of the credibility of the applicant's account of persecution. This leaves an assessment of "the apparent logic of events" in a refugee applicant's history as an important part of a credibility finding, and the present Tribunal has performed that assessment … in my opinion the present Tribunal made no jurisdictional error by also putting significant weight upon its impression of the applicant as a witness. 16 The appellant submits that the Tribunal made its first credibility finding based only on demeanour and not on 'the apparent logic of events'. He says that there were no inconsistencies or contradictions in the evidence presented to the Tribunal.

Consideration of Ground 1 17 The Tribunal's rejection of the appellant's claims was based upon several strands of reasoning, only one of which concerned the appellant's demeanour while giving evidence and the manner in which he gave evidence. As well as finding that the appellant's testimony appeared to be rehearsed, the Tribunal determined that the appellant had changed his evidence regarding his knowledge of the charges made against Mr Ibrahim in 2001. Further, the appellant's claim that he was dismissed from his job because of his political activities was found not to be credible because he failed to give a convincing explanation for the delay of nine months between the demonstration in which he participated and his dismissal. Moreover the Tribunal did not find it believable that the appellant would be dismissed from his job while another, more politically active, staff member ('Mr S') was only demoted. 18 The Tribunal was entitled to have regard to and base findings on the appellant's demeanour while giving evidence (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [34]; W148/00A v Minister for Immigration & Multicultural Affairs (2001) 185 ALR 703 at [64]). However, in assessing the appellant's credibility, the Tribunal's findings were not made on demeanour alone. The Tribunal assessed the appellant's claims and made findings on credibility that it explained; based on its observation of the appellant, the way he presented his claims, the lack of consistency that it discerned in the claims made and what it found to be implausible. Those were findings of fact for the Tribunal. 19 The appellant points out that the Tribunal did not specify which parts of his evidence appeared to it to be rehearsed. He argues that if evidence on different occasions is consistent, it can be said to be rehearsed; if inconsistent, the appellant's credibility is called into question. I have some sympathy with that position. However, fact finding and determination of credibility are matters for the Tribunal. The Tribunal explained the reasons for its conclusions and the conclusions were open to it on the evidence. It cannot be said that, as the appellant submits, the findings have been shown to be arbitrary and capricious or that they were not based on probative material or logical grounds. 20 The appellant also submits that the matters relied upon by the Tribunal were not matters of sufficient substance. That is a complaint of the fact finding by the Tribunal and the weight it attributed to the facts. It does not found jurisdictional error. 21 The Federal Magistrate had the transcripts of the Tribunal hearing. His Honour was not obliged to listen to the tapes of the hearing. As Smith FM noted at [29], even if he had listened to the tapes, this exercise would not put him in a position equal to the Tribunal in observing the manner in which the appellant presented his claims, so as to allow him to find that the Tribunal's conclusions were not open to it and were subject to jurisdictional error. 22 The appellant has not demonstrated error on the part of the Tribunal or the Federal Magistrate. This ground of appeal does not succeed.

Ground 2: Not open for Tribunal to find the appellant was not being truthful 23 The appellant claims that the Tribunal made an incorrect finding of fact for which there was no evidence, by determining that: It seemed the applicant had changed his evidence about whether he knew what the charges [against Mr Ibrahim] were when it appeared that not knowing what they were might undermine his claim. This indicates that the applicant was not being truthful. 24 Federal Magistrate Smith held at [40] that it was open to the Tribunal to conclude that the appellant had tailored his evidence in an attempt to meet the Tribunal's concern. 25 The appellant asserts that he never said to the Tribunal that he found out about the charges against Mr Ibrahim later and that the Tribunal used trivial matters and incomplete information to make a credibility finding against him. The appellant also asserts that actual charges against Mr Ibrahim were immaterial because the appellant was protesting the political persecution of Mr Ibrahim rather than the specific charges laid. Therefore, he submits, the Tribunal's decision was not based on findings of fact that were grounded upon probative material and logical grounds. If so, the Tribunal's decision may be subject to review (Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [145] per Gummow J).

Consideration of Ground 2 26 The Tribunal identified the bases for its conclusions, being the responses provided by the appellant to the Tribunal's questioning concerning the charges brought against Mr Ibrahim. These responses are supported by the transcript. 27 Jurisdictional error is not established by simply identifying an incorrect finding of fact (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ). As to the contention that the matters were trivial, even if an inference appears to have been drawn as a result of illogical reasoning, provided there is some basis for the inference, there is no jurisdictional error or error of law to support jurisdictional review (Bond at 356). As found by Smith FM, it was open to the Tribunal to conclude that the appellant had tailored his evidence in an attempt to meet its concerns as raised with the appellant at the hearing. 28 This ground of appeal does not succeed.

Ground 3: The Tribunal erred by making a credibility finding without asking a question it should have 29 The Tribunal determined that the appellant's claims regarding the reasons for his dismissal from employment were not credible. The appellant contends that the Tribunal committed jurisdictional error by making a credibility finding against him without asking a question it should have asked, namely whether the hotel authorities took further action against Mr S after demoting him for his political involvement with the NJP. 30 Federal Magistrate Smith held that the Tribunal was not obliged to ask specific questions of the appellant before basing its reasoning on an apparent anomaly in the appellant's account of events (at [45]). His Honour referred to the transcript of the second Tribunal hearing and noted that it was clear that the appellant was asked to explain an apparent difference in treatment between him and Mr S. The Tribunal said that it seemed 'hard to believe' that the two employees would be treated so differently (at [48]). His Honour noted that, in his response, the appellant did not seek to present additional information about what happened to Mr S. His Honour held that there was no obligation on the Tribunal to have inquired further into that topic. The appellant's solicitor was present at the second Tribunal hearing. At the conclusion of the hearing he was given the opportunity to raise with the Tribunal any matters that required clarification (at [49]). This issue was not raised.

Consideration of Ground 3 31 The Tribunal's finding, that it was not believable that the appellant would have been dismissed from his job for his limited political activities while Mr S was only demoted and transferred to another hotel, was open to the Tribunal on the evidence before it. It is not for the Tribunal to make out the case for the appellant. The Tribunal did tell the appellant that it found the different treatment of the appellant and Mr S hard to believe and gave the appellant the opportunity to explain that apparent anomaly. The Tribunal put the appellant squarely on notice that it had difficulty believing the appellant's evidence on this topic. The Tribunal was not obliged to make further enquiries or to frame further questions for the appellant to answer. 32 This ground of appeal does not succeed.

Ground 4: Claim that the Tribunal was biased 33 The appellant claims that the first three grounds of appeal demonstrate that the Tribunal was prejudiced against the appellant's case and 'tried to find a reason to refuse the claims of the appellant'. 34 The appellant points to the test in Ex parte H at [27] where the Court expressed the test for apprehended bias as 'whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided'. The appellant submits that the fair-minded observer of this case would conclude that since there was nothing the Tribunal could find against the appellant on any substantive matters, it 'picked on trivial matters to deny the application' and accordingly demonstrated bias. 35 Federal Magistrate Smith found that the Tribunal's ultimate reasons for rejecting the credibility of the appellant carried no suggestion of bias, or of a closed mind before the Tribunal arrived at its findings (at [51]). His Honour said that he could find no evidence suggesting that the proceedings of the Tribunal might give rise to a reasonable apprehension that the Tribunal might have closed its mind to the merits of the matter (at [52]).

Consideration of Ground 4 36 The circumstances in which a court will find that an administrative decision-maker has not acted in good faith are rare (SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [44]). Bad faith must be clearly alleged and proved (SBBS at [43]). There is nothing on the face of the Tribunal's reasons that gives rise to a suggestion that the Tribunal was biased or to a reasonable apprehension of bias on the part of the Tribunal. The Tribunal gave detailed and considered reasons for its rejection of the appellant's claim. The mere making of findings adverse to the appellant does not indicate bias or apprehended bias. Even if the appellant could establish error or irrationality on the part of the Tribunal, mere error or irrationality does not demonstrate a lack of good faith (SBBS at [45]). 37 I have rejected grounds one to three above on which the appellant relies to establish bias but, even considered cumulatively, they do not demonstrate actual or apprehended bias. The appellant submits that the Tribunal engaged in "nit picking". Questioning the appellant or expressing concern about facts and claims that may be said to be of minor overall importance does not demonstrate a closed mind and does not amount to apprehended bias. 38 This ground of appeal does not succeed.

Additional ground: Whether each past persecutory event claimed must be determined on the basis of a "real chance" that it occurred 39 The appellant submits that the Tribunal failed to apply the correct test for a well-founded fear of persecution. The test propounded by the appellant is 'whether each persecutory event claimed occurred must be ascertained based on real chance and not on probabilities'. The appellant says that if there is a real chance that each persecutory event as claimed is true, such as the appellant's dismissal from his employment, the Tribunal must find itself satisfied that there is a well-founded fear of persecution. 40 The appellant says that the Tribunal was obliged to assess each finding of past fact on this basis and not on the balance of probabilities and that instead of applying the "real chance" test, the Tribunal applied a "probability" test to whether the appellant's claims regarding the past persecutory events were true. Accordingly, the appellant submits that the Tribunal expected him to satisfy too high a standard in assessing his treatment in Malaysia and required him to demonstrate that it was probable that each claimed event did occur. 41 It follows, the appellant contends, that the Tribunal based its decision on inadequate evidence and a finding based on inadequate evidence points to a misconstruction by the Tribunal of the test to be applied (SZDTZ v Minister for Immigration & Citizenship [2007] FCA 1824 at [32] per Greenwood J).

Consideration of additional ground 42 In Chan, McHugh J explained that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is as small as a 10 per cent chance and even if the evidence does not show that the persecution is more likely than not to occur (at 429). In support of his argument that the Tribunal applied the wrong test (the probability test) to his evidence, the appellant points to the High Court decision in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559. In Guo, the High Court emphasised that the "real chance" test is not a substitute for the Convention term "well-founded fear" (at 572). A fear is "well-founded" when there is a real substantial basis for it. It is not well-founded if it is merely assumed or if it is mere speculation (Guo at 572). 43 In Guo at 573, the High Court also affirmed what was said in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281, that an opinion that one version of the facts is more probable than another is not necessarily inconsistent with the correct application of the Chan test. 44 The evaluation of past events may, as the High Court discussed in Guo at 575-6, provide a reliable basis for determining the probability of their recurrence: Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. … It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution. [emphasis added] 45 A finding that a past event occurred is not in the same category as an assessment of the likelihood of a future event occurring. It is the latter that requires an assessment of real chance. An assessment of the likelihood that the applicant will be persecuted for a Convention reason ordinarily involves making findings about whether all or part of the applicant's account of past events should be accepted (Minister for Immigration & Multicultural Affairs v Rajalingam (1997) 93 FCR 220 per Sackville J at [34]). The past event either did or did not occur. 46 In Rajalingam Sackville J, with whom North J agreed, discussed the various observations concerning the obligation of the Tribunal to consider, in its assessment of well-founded fear as discussed by the High Court in Guo and Wu Shan Liang, whether there is "real doubt" that findings of fact as to past events were correct. At [60] Sackville J distilled those observations into the principle that there are circumstances in which the Tribunal must take into account the possibility that alleged past events occurred, even though it finds that those events probably did not occur. If the Tribunal makes an adverse finding in relation to a material claim of an appellant but is unable to make the claim with confidence, it must proceed to assess the claim on the basis that the claim may possibly be true. There are, however, limits to the application of this principle, known as the "what if I am wrong" test. This does not preclude the Tribunal making a finding with certainty. It is where the Tribunal is uncertain as to whether an alleged event occurred or finds that the event might have occurred that it should, in considering the ultimate question, take into account the possibility that it did take place (at [62]). 47 That is not to say that the Tribunal must express findings that make explicit its degree of conviction or confidence that the findings are correct (Rajalingam at [64]). The assessment of whether the Tribunal had real doubts is to be determined by reference to the Tribunal's reasons as a whole (at [67]): Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the [Tribunal's] own findings to be pursued. A 'fair reading' of the reasons incorporates the principle that the [Tribunal's] reasons should receive a 'beneficial construction' and should not be 'construed minutely and finely with an eye keenly attuned to the perception of error': Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. Only if a fair reading of the reasons allows the conclusion that the [Tribunal] had a real doubt that its findings on material questions of fact were correct, might error be revealed by the [Tribunal's] failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the [Tribunal] had not undertaken the required speculation about the chances of future persecution. [emphasis added] 48 Where the reasons did not suggest that the Tribunal had any real doubt in its findings of fact, such as where it states in clear terms that it did not accept the applicant's assertions, the Tribunal is not obliged to consider the applicant's chances of persecution by references to possibilities that it did not accept (Rajalingam at [68]). Where the Tribunal is unsure as to whether events occurred, as understood from its reasons, it is obliged to consider the possibility that its findings of fact might not have been correct. The Tribunal then considers the chance of an applicant's persecution in the future on a standard less than the balance of probabilities (Kalala v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 212 at [25] per North and Madgwick JJ). In Kalala conclusions reached by the Tribunal as to whether certain events did or did not take place were attended by significant doubt. At [6]-[7] North and Madgwick JJ stated that: There may be a real and substantial basis for thinking that past events, having a character relevant for the applicant's future, may have occurred notwithstanding either that the truth of the matter cannot be established or that it is actually unlikely that those events did occur. The same is true of imputing a relevant character to past events which themselves are either not in doubt or as to which it has been recognised that there is at least a real and substantial basis for concluding that they may have occurred. If there is, in the sense mentioned, an unacceptable risk that the events occurred or had such character, they are to be taken into account in assessing whether there is a real chance of Convention-related harm to the applicant. If there is a real chance that some event occurred or bore a certain character, that circumstance may powerfully affect the assessment of whether fear of future harm befalling an applicant, if returned to his or her country of nationality, is well-founded. 49 The appellant submits that the real chance test should be applied 'in reverse': 'There can not be two standards of decision making dealing with real chance of the past and the future'. The appellant submits that the occurrence of past events should be 'tested on real chance' and, further, that 'various factors going into each persecutory event could be given different weight based on probabilities'. The appellant offers a model of a mathematical evaluation of each factor. He says that the Tribunal should combine the mathematical evaluation of each factor to determine the percentage that then amounts to a real chance. He submits that if the Tribunal cannot rule out the alleged occurrence, it must assume that the claim is true. 50 The appellant then asserts that, the probability of each factual finding in the Tribunal decision being correct is small. Accordingly, he contends, the Tribunal applied a 'very high standard of proof' and required satisfaction to 'a very high probability'. The appellant contends that, on a real chance test, the Tribunal should have found that the incidents described by the appellant did occur. 51 The appellant submits that it is evident from the Tribunal decision that the Tribunal was not confidently satisfied that the events did not take place. The appellant submits that the inadequacy of the evidence cited by the Tribunal to support its findings gives rise to the inference that it was not confidently satisfied that the past events did not take place as the appellant claimed (Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [36] per McHugh and Gummow JJ). The appellant accepts that the attribution of greater weight to one piece of information as against another is not necessarily inconsistent with the correct application of Chan. He argues, however, that this is only appropriate when the question of whether each persecutory event of significance occurred is assessed on real chance and not on probability. 52 The appellant's submission that the Tribunal must apply the real chance test to each finding of fact in relation to past events claimed is misguided. So too is the appellant's attempt to overcome the High Court's reasoning in Guo by reliance on what was said to the contrary by Einfeld J at first instance (Guo v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 151). 53 An integral part of the process of determining whether there is a real chance of persecution is the formation of conclusions on past events (Guo at 575). The Tribunal is not required to determine the veracity of past events as a mere possibility. Rather, the Tribunal is required to assess the material before it and to reach a conclusion on the occurrence of those events to see if they provide a basis, a foundation, for a fear of persecution. Where the Tribunal expresses no doubt as to its findings of fact, where the Tribunal simply does not accept that certain events took place, the Tribunal is not obliged to consider the chance of the fact being true or the event having occurred (Rajalingam; Yakubu v Minister for Immigration & Multicultural Affairs [2002] FCAFC 57 at [50]). 54 In the present case, the Tribunal did not accept the appellant's claims and did not express or imply any doubts as to whether the events as claimed had not occurred. The Tribunal made an unequivocal finding that the appellant's evidence was rehearsed. The Tribunal did not find credible the appellant's claim that he was dismissed from his job because he donated to the NJP and attended a demonstration. It did not accept that the appellant was detained after returning to Malaysia. It made a finding that the appellant does not wish to engage, nor would he engage, in any political activity if he returned to Malaysia and that he is of no adverse interest to the police, the authorities or anyone else in Malaysia for reasons of political opinion. The Tribunal accepted country information on the freedom of Christians to practise their religion in Malaysia. It gave reasons for its conclusions which were not expressly or implicitly attended by doubt. The Tribunal was not required to consider whether each alleged persecutory event could possibly have occurred or could be established by applying a real chance test. 55 This ground of appeal does not succeed.

Conclusion 56 It is within the competency of the Tribunal to make findings regarding the appellant's credibility and for these findings to be based in part upon the appellant's demeanour. Regardless, the Tribunal's rejection of the appellant's claims was based upon several strands of reasoning, only one of which included the appellant's demeanour whilst giving evidence. 57 The findings of fact made by the Tribunal were open to it on the evidence and no jurisdictional error on the part of the Tribunal has been shown. The Tribunal was not obliged to make further enquiries or to frame further questions for the appellant. There is no indication of bias or apprehended bias on the part of the Tribunal. 58 The Tribunal did not accept the appellant's claims and did not express any doubts about its conclusion that the past events as claimed had not occurred. The Tribunal is not required to assess those past claimed events of persecution on the basis of the real chance test. 59 The appeal should be dismissed. The appellant is to pay the respondent's costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate: Dated: 30 April 2008 Solicitor for the Appellant: T Silva; Silva Solicitors