SZSUT v Minister for Immigration and Border Protection [2015] FCA 190 | Case summary

The appeal 6 The Federal Circuit Court could only set aside the Tribunal's decision if it was satisfied that the Tribunal's decision was affected by jurisdictional error: Migration Act 1958 (Cth), s 474; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. Appeals to this Court are in the nature of a rehearing but error must still be shown: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. 7 The notice of appeal pleads two grounds. They read (again without alteration): 1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. 2. The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the RRT. 8 Like the grounds of review in the court below, neither of these grounds is particularised and no written submissions were filed in support of them. They are identical to grounds pleaded in numerous other appeals in this Court and properly characterised as "template grounds", that is, grounds copied from another notice of appeal without regard to the particular circumstances of the case: see SZSLS v Minister for Immigration and Border Protection [2013] FCA 1187 at [18]; SZSYS v Minister for Immigration and Border Protection [2014] FCA 857 at [17]. 9 There are two problems with the first ground of appeal. 10 First, the appellant never argued in the court below that the Tribunal's decision was manifestly unreasonable. It is impossible to see how the court could err in failing to consider an argument that was never put. 11 Secondly, there is no basis for the allegation of unreasonableness. 12 The Minister (and, on review, the Tribunal standing in his shoes) may only grant a visa if satisfied that the criteria set down in the Migration Act and/or the Migration Regulations 1994 (Cth) have been met: Migration Act, s 65. Otherwise there is an obligation to refuse to do so. 13 The primary criteria for the grant of protection visas are contained in s 36 of the Act. At the time of the Tribunal hearing s 36 relevantly provided: (1) There is a class of visas to be known as protection visas. Note: See also Subdivision AL. (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or (b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa; or (c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (aa); and (ii) holds a protection visa; (2A) A non-citizen will suffer significant harm if: (a) the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. (2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that: (a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or (b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or (c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. … 14 The protection obligations Australia has under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (collectively, "the Convention") are owed to refugees. "Refugee" is relevantly defined in Article 1A(2) of the Convention to mean "any person who … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…". 15 Section 91R of the Migration Act, however, excludes the application of Article 1A(2) in relation to persecution for one or more of the reasons mentioned in that Article unless that reason is "the essential and significant reason" (or those reasons are "the essential and significant reasons") for the persecution and the persecution involves serious harm to the person (defined in subsection (2)) and systematic and discriminatory conduct. 16 In the present case the appellant did not purport to be a member of the same family unit as a non-citizen who satisfied the criterion in paragraph (a) or (aa) and who held a protection visa. So it was necessary for the Tribunal to be satisfied that he satisfied the criterion in either paragraph himself. He was unable to do that. 17 As I have already observed, to succeed in this matter the appellant had to persuade the primary judge that the Tribunal's decision was affected by jurisdictional error. The Minister's or the Tribunal's state of satisfaction, as the case may be, is a jurisdictional fact: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130]-[137] (Gummow J); Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57] (French CJ). In such a case, as Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131], the test for jurisdictional error based on unreasonableness is: whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. 18 If the answer to that question is yes, as their Honours went on to explain, a reviewing court cannot conclude that the decision is illogical, irrational or unreasonable. 19 Here, logical or rational or reasonable minds might differ in their findings. To understand why, it is necessary to examine the appellant's account and the Tribunal's analysis of it. 20 In his protection visa application the appellant said he was born in Sabah, Malaysia (he told the Tribunal that his father had a Pakistani background), had lived in Malaysia until April 2012 and since then at the one address in Griffith (in New South Wales). He claimed to be unemployed but to have previously worked in business as the owner of two different enterprises, earning respectively $3,000 and $3,500 per month. He said he left Malaysia because he was threatened by "the Malay Gang". In an accompanying statement he claimed that he had borrowed money at high interest from a Malay Gang leader and had struggled to pay the money back when his business was not doing well. He said that he repaid most of the money but that, after an argument about the amount owing, three gang members, armed with guns, ransacked his shop, stole his cash and threatened to kill him if he did not repay all the money he owed. He said he reported the matter to the police but they were corrupt and involved with the gangs. He claimed that, since arriving in Australia, he had been told that "they" came to look for him "many times". 21 At the Tribunal hearing the appellant also claimed to have borrowed money from a Chinese moneylender (Ah Long) in March 2011 to open another shop. The business, he said, did not do well. It was not making money and he could not pay rent or staff. He claimed that it had also been ransacked by the gang who once again threatened him. The Tribunal questioned the appellant about why he had not mentioned his new shop in his application. 22 The Tribunal also questioned the appellant about his trips to Australia. The appellant revealed that he had first arrived in September 2011 (staying for three months) to do some sightseeing and "to see how people live". He said he had stayed in Melbourne for a while, then Sydney, and spent over a month in Griffith. He said he returned to Malaysia for about 20 days before spending another three months in Australia, first in Melbourne and then in Griffith. This time he claimed to have come to Australia because he felt some fear in Malaysia, was under pressure, and a friend had suggested that he should move here where "life is much better". He said he returned to Malaysia, stayed 13 days, and then came back to Australia. On this occasion he told the Tribunal he came because "it was good living in Australia and more safe and no one disturbs me and I feel better here". 23 The appellant also told the Tribunal that he was afraid of harm from Filipinos in Sabah who were armed and opposed to the government. 24 The Tribunal had serious concerns about the veracity of the appellant's account, which caused it to disbelieve the appellant's claims. Indeed, the Tribunal went so far as to find that he had fabricated his claims about borrowing money and fearing harm from moneylenders. 25 The Tribunal noted that the appellant's claims were "near the same" as a person who lived in the same apartment as the appellant the year before he did: both had Pakistani backgrounds, both were Malaysian citizens from Sabah, and both claimed to be businessmen who had borrowed money from a Chinese gang leader named Ah Long, but who were unable to repay the money, and had been threatened and forced to flee to Australia. The Tribunal had raised these matters with the appellant, who said that he did not know about this. His explanation was coincidence. The Tribunal rejected the explanation. Despite the appellant's protestations to the contrary, the Tribunal was apparently convinced that the appellant had copied the other person's claims. In coming to this conclusion the Tribunal said it had taken into account the other credibility "concerns" which it had raised with the appellant during the hearing. Those concerns were the failure to mention in his visa application the third business he told the Tribunal about and the fact that he spent three months in Australia as a tourist only six months after establishing the business and spent "so little time" in Malaysia thereafter. The Tribunal concluded that the appellant came to Australia to work, rather than to escape the threat or risk of persecution. 26 In relation to the appellant's claim to fear harm from Filipinos in Sabah, the Tribunal noted that the appellant had provided no detail to support his claim and had not contended that he was "specifically" harmed by them. In any event, the Tribunal said, if he wished to avoid harm, he could move to another part of the country. 27 The Tribunal noted that the law required that one or more of the Convention grounds must be "the essential and significant motivation for the persecution" but did not accept that the appellant had a well-founded fear of persecution "for reasons of a Convention ground". The Tribunal found that the appellant wanted to work in Australia and preferred to live here but that that did not give rise to a claim for protection, whether under the Convention or otherwise. 28 The Tribunal also found that the appellant did not satisfy the complementary protection criterion in s 36(2)(aa) of the Act. It said it did not accept that there would be any adverse consequences of the appellant returning to Malaysia. 29 There was no want of logic or reason in the Tribunal's decision. The matters about which the Tribunal made findings were matters on which minds might reasonably differ. It was, of course, theoretically possible that both the appellant and the former occupant of his apartment had borrowed money from the same Chinese gang leader and had been threatened when they were unable to repay him. It was, however, also possible that the appellant was untruthful and that he had, indeed, copied at least this aspect of his account from the other person and made up his claims. With the exception of his Malaysian citizenship, which was confirmed by his passport, satisfaction of the criteria in s 36(2) depended on whether the appellant was believed. There was no independent evidence to corroborate his account. In these circumstances, and having regard to the matters that the Tribunal raised with the appellant together with his explanations, it was open to the Tribunal to disbelieve him. 30 The Tribunal certainly did not ignore the appellant's claims to fear harm and persecution. The reference in the Tribunal's decision to the need for one or more of the Convention grounds to be "the essential and significant motivation for the persecution" picks up s 91R of the Act. For this reason, the proposition that the Tribunal ignored s 91R cannot be accepted. 31 At the hearing of the appeal I invited the appellant, through an accredited Malay interpreter, to speak to these grounds. I first asked him what was manifestly unreasonable about the Tribunal's decision. In substance, his response was that he could not be certain that his account was being correctly interpreted because, despite his repeated requests for a Malay interpreter, he was never provided with one. On the first occasion he appeared before the Tribunal he claimed he had a Hindi speaking interpreter and on the second, an Indonesian interpreter. He also claimed that on the second occasion he objected that he did not understand the language but the proceeding continued despite his objection. The only specific matter, however, to which he pointed which he considered might have been incorrectly translated was his reply to a question from the Tribunal about why he came to Australia when his business had only been operating for six months. He said he told the Tribunal it had been going on since 2007. 32 I also asked the appellant to explain what he claimed the Tribunal ignored. Once again he complained that he had not been provided with a Malay interpreter. He said that, had he been, he would have understood the proceedings and the submissions of the Minister. He said he did not understand why the Tribunal put to him that he came to Australia to seek employment and that he should have relocated to another part of Malaysia when he was able to work and earn a better income there. 33 The appellant did complain in the court below that he had been denied procedural fairness, but his complaint related to the police report he contended the Tribunal had refused to consider. He did not complain that he had any problem understanding the proceedings. 34 In these circumstances, the Minister objected to the appellant raising the point in the appeal. He submitted that the appellant had not offered any explanation as to why he had not taken the point in the Federal Circuit Court and that the point had no merit. He also submitted that he would be prejudiced if the appellant were permitted to argue the point because he could have called evidence to rebut it. 35 There is a tension in these submissions. If the point has no merit, it is difficult to see what prejudice would be sustained. Nevertheless, as a matter of general principle the Minister is right. Where a point is raised for the first time on appeal, leave is required to argue it and leave will only be granted if it is expedient in the interests of justice to do so. In the absence of real prejudice to the respondent, the Court may grant leave to argue a point with clear merit which was not agitated below. Leave should generally be refused, however, where there is no adequate explanation for the failure to take the point in the lower court and it seems to be of doubtful merit: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [48]. 36 The appellant did not explain why he did not raise the point before the Federal Circuit Court even after the Minister raised in court the difficulty which this created for him. There is at least the potential for prejudice to the Minister. Above all, the point is of doubtful merit. Accordingly, leave to argue the point should be refused. In any case, if leave were granted, on the material before the Court the argument would have to be rejected. 37 In some circumstances, errors in interpretation may give rise to a denial of procedural fairness; so, too, a failure to agree to a request for an interpreter in a litigant's native language when the litigant cannot communicate or communicate effectively in English. To deny a litigant the opportunity to put his or her case, to understand the case against him or her, or to take part in the proceedings themselves is manifestly unfair. It is also a denial of the right to equal access to justice. Justice will not have been done, nor will it be seen to have been done: SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 ("SZRMQ") at [51] and following (Flick J). 38 There may be cases, as Allsop CJ observed in SZRMQ at [11], where the interpretation is "so inadequate as to deny the fact of any hearing". There may be cases where the failure to provide an interpreter demonstrates, or the deficiencies in the interpreting are such as to indicate, that the Tribunal has failed to comply with s 425 of the Act. Section 425 requires the Tribunal in a case such as this to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. That invitation must be "real and meaningful": Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003)128 FCR 553 at [57]. In some cases the interpreting may be so incompetent that the applicant is effectively prevented from giving his evidence: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 at [38] (Kenny J). 39 But not every case which raises questions about the quality of interpreter services will give rise to an error of this kind. It will always be necessary for the aggrieved party to put before the reviewing court evidence to show that there were material errors in the interpretation so that a miscarriage of the decision-making process has occurred: Soltanyzantd v Minister for Immigration and Multicultural Affairs [2001] FCA 1168 at [18] (Spender, Lee and Tamberlin JJ at [18]); SZRMQ at [17] (Allsop CJ). 40 The problem for the appellant was that the material before the Court did not support his argument. 41 First, he was unable to point to any material in the appeal book to support his assertion that he had been refused a Malay interpreter and there is no reference to a Hindi interpreter. As I have already observed, the primary judge noted that no evidence was placed before him, despite a direction made in the appellant's presence that he do so. Nor did the appellant apply to this Court to call further evidence. 42 Secondly, not only is there no material in the appeal book to support the appellant's assertions but such material as there is undermines them. 43 Each time the appellant appeared before the Tribunal the appeal book shows that he had a Malay interpreter. The names of the interpreters are recorded. The appellant could point to no evidence to suggest that the Tribunal's hearing records, where these names appeared, were incorrect in any respect. It is true that there is nothing to indicate that either interpreter was accredited by the National Accreditation Authority for Translators and Interpreters Ltd ("NAATI"). Indeed, on the second occasion the interpreter is listed as "not accredited". This is regrettable. This Court went to considerable lengths to ensure that the appellant was provided with a NAATI accredited interpreter for the hearing of this appeal. Without more, however, the lack of NAATI accreditation does not demonstrate that the interpreter was unable to, or did not accurately, interpret what the appellant or the Tribunal had to say. 44 Thirdly, the Tribunal did refer to a concern expressed by the appellant about the interpreter but not the interpretation. At [23] of the Tribunal's decision record the Tribunal made the following observations. In relation to the postponed hearing on 31 January 2013, the Tribunal discussed with him that it had been cancelled as he had claimed on the day he did not speak Urdu. It was put to him that the Tribunal knew this not to be true as he had been speaking to a Tribunal offer (sic) in Urdu, and on that basis an Urdu interpreter had been booked. He confirmed he speaks Urdu and said "indeed I can speak it fairly well". He raised a concern about the Malay interpreter and he could tell from her accent that she was Indonesian background, though when this was further discussed he said he had no difficulty in understanding her. He raised no concern during the interview of not understanding the interpreter. 45 Fourthly, the only specific matter which on appeal the appellant contended could have been affected by any problem in communication related to the time during which he had been running his business. I am not satisfied on the limited evidence before me that there was such an error. 46 The appellant referred more than once in argument to the Tribunal's finding that he could relocate within Malaysia. This matter is relevant to a review by the Tribunal for two reasons. In relation to a claim for complementary protection, s 36(2B) of the Act provides that "there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied", amongst other things, that it would be reasonable for him or her to relocate to another part of the country where the risk would not arise. In relation to a claim based on the Convention, while neither the Act nor the Convention contains an express exception from the protection obligations on this account, the definition of "refugee" in the Convention implicitly excludes a person who is able to find refuge elsewhere in his or her country of nationality. In SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [19] Gummow, Hayne and Crennan JJ approved the analysis by Lord Bingham of Cornhill in Januzi v Secretary of State for Home Department [2006] 2 AC 426 at 440: The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason. ...[A] person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country. 47 Kirby J agreed that the relocation principle was part of Australian law but had trouble with attributing its textual source to the requirement that refugee status had to be based on a well-founded fear of persecution. His Honour preferred to base it on the words "unable or … unwilling to avail himself of the protection of [the] country [of nationality]". He explained at [56]: [I]f it were the case that … an applicant were "unable or … unwilling to avail himself of the protection of [the] country [of nationality]" because, throughout that country an adequate level of protection was missing, the hypothesis of the Refugees Convention would be fulfilled. Its text would be engaged. On the other hand, if, in some parts of the country of nationality, that country was perfectly able and willing to provide internal "protection" to the putative refugee, the propounded inability or unwillingness of that person to avail himself or herself of such (localised) "protection of that country" would not sustain the asserted "fear". (Original emphasis) 48 To the extent that the appellant might have been suggesting that his difficulty in understanding why the Tribunal was putting to him that he could relocate to another part of Malaysia was due to a deficiency in translation, I accept the Minister's submission that an error affecting this question was not material. Once the Tribunal was unable to believe the appellant's claims to fear harm in Malaysia, his application was doomed to fail. Its conclusion that he could relocate merely provided an alternative basis for the decision. 49 For all these reasons ground 1 of the notice of appeal must be dismissed. 50 As for ground 2, the appellant was unable to point to any error by the Tribunal which could be described as jurisdictional. Indeed, he was unable to point to any legal error. He merely queried how it was that the Tribunal could come to the conclusion that he was able to relocate. He also questioned the Tribunal's factual finding that he had copied someone else's story. On the assumption that he made similar submissions in the court below, neither individually nor collectively do these matters demonstrate error on the part of the primary judge. 51 The appellant also submitted that what he said to the Tribunal was not recorded by the Tribunal in its decision record. I take this to refer to his complaint about the interpreter. However, he readily acknowledged, that he had no proof to support his submission. 52 In these circumstances, ground 2 must also be dismissed. 53 It follows that the appeal must fail. Costs should follow the event. There will be orders accordingly. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

SZSUT v Minister for Immigration and Border Protection

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