FEDERAL COURT OF AUSTRALIA

CHZ16 v Minister for Home Affairs [2019] FCA 1242

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants pay the costs of the appeal of the first respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMBERG J:

1    This is an appeal from the judgment of the Federal Circuit Court of Australia published as CHZ16 and Anor v Minister for Immigration and Anor [2018] FCCA 2197. By that judgment the primary judge dismissed the appellants’ application for judicial review of a decision made by the second respondent (“Tribunal”) to affirm a decision made by a delegate of the first respondent (“Minister”) rejecting applications made by the appellants for Protection (class XA) Visas (“visas”).

2    The appellants are husband and wife and citizens of Malaysia. They arrived in Australia in 2010 holding “Electronic Travel Authorities” valid until 3 May 2010 (first appellant) and 20 April 2016 (second appellant). Having failed to depart Australia by those dates, the appellants were detained by immigration officers on 8 March 2014. They then applied for the visas which were refused on 12 June 2014. That refusal has been the subject of three proceedings before the Tribunal. A decision made by the Tribunal (“First Tribunal”) which affirmed the decision of the delegate to refuse the visas was set aside by Mansfield J on 11 June 2015 (DZAER v Minister for Immigration and Border Protection [2015] FCA 568). A second decision adverse to the appellants was made by the Tribunal (“Second Tribunal”) on 4 September 2015. However, that decision was set aside by the Federal Circuit Court (Young J) on 21 January 2016 by the consent of the parties. By a decision dated 2 August 2016, the Tribunal, for the third time, affirmed the decision of the delegate of the Minister to refuse the visas. Unless the context otherwise suggests, I will refer to that decision and the reasons given in support of it as that of the Tribunal.

3    On the appeal, the appellants were self-represented and assisted by an interpreter. Written submissions were filed by the appellants before the commencement of the appeal and additional written submissions were provided at the hearing. No oral submissions of any substance were given. By their written submissions the appellants impermissibly sought to make factual assertions which must be disregarded. The Minister relied on an outline of written submissions together with oral submissions made by counsel. Both the written submissions of the appellants and their Notice of Appeal were ambiguous and suffer from the fact that English is not the appellants’ first language. In the circumstances, I have done the best I can to fully understand that material and, in so far as it is necessary, I have endeavoured to convey the substance of the appellants’ submissions. Further the grounds of appeal in the Notice of Appeal have been mis-numbered. I will refer to those grounds by reference to corrected numbering.

Ground 1

4    Unlike the other grounds of appeal, ground 1 of the appellants’ Notice of Appeal is relatively short and is straightforward. The appellants say that the proceeding before the primary judge took place over two days and that on the second day of the proceeding an interpreter was not provided to them. Although not expressed as such, the essence of ground 1 is a complaint that because of the absence of an interpreter on the second day of hearing, the appellants were denied procedural fairness, and in particular, denied a proper opportunity to be heard before the primary judge.

5    In SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212, the Full Court (Allsop CJ, Flick and Robertson JJ) was called upon to consider whether in proceedings conducted as an Independent Merits Review, a denial of procedural fairness had occurred as a result of mis-translation. The requirements of procedural fairness and its interaction with interpretation or translation services were the subject of the following prudent observations of Allsop CJ at [6]-[9]:

[6]     The requirements of procedural fairness are not generally apt for precise delineation. Some aspects can be reduced to a verbal expression of law. The test for apprehended bias is perhaps an example of that. The difficulty in precise formulation of many aspects of the requirements is that the informing norm and root of the principle is fairness: Kioa v West (1985) 159 CLR 550 at 583-585. Even in relation to the proper test for apprehended bias, however, the use of the fair-minded observer in the construct imports the norm of fairness: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2].

[7]    Fairness is normative, evaluative, context specific and relative. As such, its assessment is sometimes imprecise in articulation and open to debate. Nevertheless, subject to any clear contrary statutory intention, fairness is an inhering requirement of the exercise of state power: Jarratt v Commissioner of Police for NSW (2005) 224 CLR 44 at [26]; and SZRUI at [5].

[8]    The requirement of power to be exercised fairly will generally carry with it the requirement to exercise the power in a way that is apparently fair. This derives from the recognition of the importance of the process of the exercise of state power and not just the correctness of the outcome. The process of the exercise of state power is integral to the legitimacy of the outcome of the exercise of that power: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [19]; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 87 ALJR 458; 295 ALR 638 at [209]; NIB Health Funds Ltd v Private Health Insurance Administration Council (2002) 115 FCR 561 at [84]; and SZRUI at [2].

[9]    The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.

6    There was some dispute on the submissions, as to whether or not at the conclusion of the first day of the hearing the primary judge asked the appellants as to whether or not they required an interpreter for the second hearing day. However, on the evidence before me and in circumstances where no other evidence was sought to be adduced by the appellants, I must resolve any factual dispute in favour of the Minister.

7    An affidavit of Ms Kylie McInnes, a lawyer employed by the Australian Government Solicitor who had carriage of the proceeding on behalf of the Minister before the primary judge, and who attended the first day of the hearing before the judge, was tendered by the Minister. Ms McInnes deposed that an interpreter was present at the hearing on the first day and that the second appellant (the wife) primarily spoke on behalf of the appellants in English without apparent use of the interpreter. She further stated that the first appellant (the husband) did not speak during the majority of the hearing and did not appear to use the interpreter. Furthermore, and of importance, Ms McInnes deposed that at the conclusion of the first day of the hearing, the primary judge asked the appellants whether they required an interpreter to be present “at the resumed hearing on 14 February 2018”. Ms McInnes deposed that the appellants “indicated that they did not require an interpreter”.

8    As is apparent from the observations made by Allsop CJ in SZRMQ, procedural fairness requires that “an opportunity to be heard” is afforded. A person who has been given that opportunity but fails to utilise it cannot complain that the opportunity was not afforded.

9    Here, on the evidence, the opportunity to be heard through the interpreter was offered to the appellants. They declined to take up that opportunity. The appellants were not, in those circumstances, denied procedural fairness. Furthermore, as the Minister contended, this ground is articulated on an entirely speculative basis. Although the second appellant indicated that the lack of an interpreter created some difficulty for her because she needed to interpret for her husband, there was no specific disadvantage to the appellants’ opportunity to be heard identified in that submission, let alone supported by evidence. Even if I had been satisfied that the appellants had not declined the opportunity to have an interpreter, I would not have been satisfied that procedural fairness had been denied to the appellants in circumstances where no relevant disadvantage to the appellants’ opportunity to be heard has been demonstrated.

10    Ground 1 must be dismissed.

Ground 2(a)

11    There are two parts to ground 2 of the appellants’ Notice of Appeal. The first part of that ground asserts error on the part of the Tribunal in relation to a finding made by the Tribunal that the first appellants’ brother was not abducted as the appellants had alleged. This part of the ground (“ground 2(a)”) is framed in terms of the Tribunal having failed to provide the appellants procedural fairness by not accepting that the first appellant’s brother was kidnapped by loan sharks.

12    Although framed in terms of procedural fairness, neither the particulars of ground 2(a) given or the appellants’ contentions in relation to it, raise any failure to afford the appellants a proper opportunity to be heard or any other aspect of the principle of procedural fairness. Instead, the finding made by the Tribunal at [54] of its reasons, rejecting the appellants’ allegation that the first appellant’s brother was abducted, seems to be challenged by the appellants for lacking a reasonable basis.

13    With my own identification of the first and second basis for the Tribunal’s finding at [54] of the Tribunal’s reasons, that paragraph is as follows:

The first applicant also claimed in his written statement to the Second Tribunal, that his younger brother was abducted and beaten by loan sharks on one occasion, those loan sharks enquiring after the first applicant's whereabouts. He told the current Tribunal that this occurred while the first applicant was still in Malaysia but that he heard about it in his first year in Australia (ie in 2010) when his family informed him of the incident by phone. He said that his brother was abducted in Johor and his abductors threatened to cut off his hand. The Tribunal asked the first applicant if he mentioned this incident at any point prior to submitted [sic] his written statement to the Second Tribunal in 2015. He said he did not as he thought that it was only his story that he had to mention. However, given that the first applicant’s evidence is that his brother's abduction was directly related to the first applicant's adverse profile and risks of harm at the hands of loan sharks and criminal gangs in Malaysia, the Tribunal considers the first applicant's explanation unconvincing [First Basis]. Further, the Tribunal finds it problematic that on the one hand the first applicant claims that his brother was abducted by loan sharks who wanted to know the first applicant’s whereabouts, while on the other hand he claims that gang members were monitoring his home in Penang yet they did not approach him in any way, even to request repayment of money owed to them [Second Basis]. The Tribunal does not accept that the first applicant’s brother was abducted by loan sharks or gangsters or anyone else seeking the first applicant’s whereabouts with any intention of harming the applicant. The Tribunal does not accept, on the evidence before it, that the applicant’s brother was abducted as claimed, or that the applicants home in Penang was being monitored by anyone intending to harm them or that the applicants’ family members in Johor were being approached with threats directed at the applicants.

14    The primary judge dealt with this challenge to the Tribunal’s decision at [27]-[28] of his Honour’s reasons. The primary judge noted that the submission made by the appellants challenging the finding was to the effect that the Tribunal was wrong to find an inconsistency in the evidence given by the appellants because they had not asserted that they knew that their house was being watched (as is implicit from the reasons at [54]) but simply “felt” that their house was being watched by the loan sharks. The primary judge proceeded on the presumption that even if the appellants were correct as to what I have identified as the second basis for the impugned finding, the finding was in any event supported by what I have identified as the first basis, a basis which had not been challenged.

15    There is no error in the approach taken by the primary judge.

16    The appellants’ submission before me that they had not witnessed the abduction personally and they could only have told the Tribunal what they knew, may be a submission which seeks to impugn the first basis relied upon for the finding at [54]. If that is so, there is no merit in the submission. The first basis for the finding is the failure of the first appellant to have relied upon the abduction of his brother until 2015 when, on his own evidence, he first became aware of the abduction in 2010. Neither the fact that the appellants had not personally witnessed the alleged abduction, nor the fact that they could only tell the Tribunal what they knew, explains why no prior mention of the allegation was made by them before 2015 and in particular in the written statement made to the Second Tribunal.

17    There is no jurisdictional error by the Tribunal or any error by the primary judge established under ground 2(a). That ground must be dismissed.

Ground 2(b)

18    The heading in the appellants’ Notice of Appeal for this ground states “Lack Of Procedural By Relying On Written Records Of Interview”. That heading, including the absence of the word “Fairness” after the word “Procedural”, accords with the heading over paragraph [29] of the primary judge’s reasons. Paragraph [29] of those reasons stated:

[29]    The Applicants submit that the Tribunal failed to afford them procedural fairness by relying on written records of interviews that took place on 8 March 2014, 24 March 2014 and 14 November 2014. The Applicants imply that a written record of the interview cannot be accurate and should not be relied upon. This is to be rejected. There is no evidence before the Court that the written records were not reliable and written records are materials that the Tribunal is entitled to have regard to. As pointed out by the First Respondent, there has been no denial of procedural fairness as the Applicants were provided with the opportunity to comment on the information contained within the written records in accordance with s.424A of the Act.

19    Ground 2(b) of the appellants’ Notice of Appeal is difficult to understand. It seems to essentially repeat what was ground 1(c) of the Amended Application before the primary judge, being the ground that the primary judge dealt with and rejected at [29] set out above. Ground 2(b) of the appellants’ Notice of Appeal does not identify how it is that the appellants say the primary judge erred at [29] of his Honour’s reasons. Nor do the written submissions relied upon by the appellants serve that function.

20    The best that I can discern from the appellants’ material is that they are complaining about the Tribunal’s use of the records of various interviews held with them prior to the Tribunal’s hearing, to support the findings made at [64] of the Tribunal’s reasons that the Tribunal was not satisfied of various aspects of the appellants’ claims. The written submissions of the appellants as to this ground might best be summarised by a sentence towards the end of that submission stating that the appellants had “no genuine opportunity to respond to the adverse material”.

21    As I understand it, the “adverse material” referred to by the appellants is the material referred to by the Tribunal at [58] of its reasons. In that paragraph the Tribunal set out the contents of correspondence provided by the Tribunal to the appellants under s 424A of the Migration Act 1958 (Cth). That correspondence referred to information said to have been given by the appellants at various interviews with Departmental officers which the Tribunal regarded to be changing and internally inconsistent information and also information inconsistent with oral evidence given by the appellants before the Tribunal. The Tribunal at [59] sets out the basis for its concerns. In that paragraph the Tribunal also notes that in the s 424A correspondence with the appellants, the Tribunal explained that the information in question might be used by the Tribunal to come to the view that the evidence given by the appellants was not reliable. At [60] of its reasons, the Tribunal recorded that the appellants had responded to the s 424A letter. The Tribunal set out in that paragraph and in paragraphs [60]-[63] the substance of the responses made by the appellants and the Tribunal’s view as to the cogency of those responses.

22    The primary judge at [29] came to the conclusion that no denial of procedural fairness had been established by the appellants as they were provided with the opportunity to comment on the information in question in accordance with s 424A of the Migration Act.

23    There is nothing in the submissions of the appellants and nothing apparent to me from [58]-[63] of the Tribunal’s reasons, which suggests that the procedural fairness requirements embodied in s 424A of the Migration Act were not provided to the appellants in accordance with the requirements of that provision. In that context, in so far as the Tribunal relied upon the impugned information to arrive at the findings adverse to the appellants made at [64], that reliance was not affected by any apparent jurisdictional error.

24    The appellants have failed to demonstrate any error made by the primary judge in failing to identify jurisdictional error on the part of the Tribunal. For that reason, ground 2(b) must be rejected.

Ground 3(a)

25    Ground 3 of the Notice of Appeal has two parts. Each part raises a failure by the Tribunal to provide the appellants with a fair hearing because of an asserted failure by the Tribunal to provide the appellants with a genuine opportunity to respond to adverse information.

26    The first part of that ground (“ground 3(a)”) raises an asserted lack of opportunity to respond to documentation which concerned the hiring of equipment from a supplier called “Fuji Xerox” by a business operated by the appellants in Malaysia.

27    Referring to a letter of demand sent to the appellants’ business on behalf of Fuji Xerox, at [22] of its reasons, the Tribunal said this:

Interestingly, that correspondence indicates that the equipment was hired by Shining Star from 1 October 2008, well before the applicants told the Tribunal that Shining Star opened its doors for business in January 2009.

28    The appellants essentially contend that if they had an opportunity to address the concern of the Tribunal identified at [22] they would have explained (as they did in evidence given to the Second Tribunal) that before the shop operated by their business opened, they operated a small office for which the equipment in question was hired.

29    The primary judge dealt with this aspect of ground 3 at [30]-[31] of his reasons for judgment. His Honour referred to s 424A of the Migration Act. That provision requires the Tribunal to give an applicant particulars of any information “that the Tribunal considers would be the reason or part of the reason, for affirming the decision that is under review”. The primary judge proceeded on the basis that even if the information regarding the hire of the Fuji Xerox equipment was information of a kind to which s 424A applied, since the information was provided by the appellants for the purpose of their application for review, s 424A did not apply because of the exception in s 424A(3)(b). In any event, the primary judge found that the information relating to the hire of the Fuji Xerox equipment was not relevant to the appellants’ protection claims as they did not fear harm from Fuji Xerox.

30    It seems to me that the essence of the complaint that the appellants made on this issue is that, without providing them with an opportunity to explain, the Tribunal formed an adverse view about their credibility based on the Tribunal coming to a view that their business may have opened its doors well before the appellants told the Tribunal that it had. It is not clear to me whether that complaint was made to the primary judge or, if made, appreciated by the primary judge.

31    However, although the Tribunal regarded the contradiction adverted to at [22] as “interesting”, there is no indication that the inconsistency adverted to was material to any adverse finding made against the appellants including as to their credibility: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [2]-[3] (Bell, Gageler and Keane JJ).

32    In those circumstances, there is no jurisdictional error. The primary judge did not err in failing to find jurisdictional error and ground 3(a) must be dismissed.

Ground 3(b)

33    This ground is headed “No Opportunity To Comment On/Respond To The Kidnapping Claims”. The heading corresponds with the heading utilised by the primary judge over [32]-[36] of his Honour’s reasons. The primary judge there rejected the contention that the second appellant was not given an opportunity to give evidence of the kidnapping of the appellants by gangsters as claimed by them. The primary judge also dealt with and rejected an allegation that the Tribunal erred by not taking into account evidence given by the second appellant in an interview conducted with her in 2014 in proceedings before the First Tribunal.

34    This ground of appeal refers to the Tribunal’s failure to take into account “the Second Applicant’s compliance interview record” but the content of that material is not identified. However the appellants’ submissions refer to an interview said to have occurred “During 24th July 2009 hearing with Second Tribunal”. The date referred to must be an error as it predates the appellants’ arrival in Australia. Whether the extract which follows is from the First or Second Tribunal hearing is also not clear. What follows in the submission is a verbatim extract of a transcript of a discussion between a Tribunal member and the second appellant. I presume that the extract is the material which the appellants say the Tribunal failed to take into account and failed to give the second appellant an opportunity to respond to. After setting out the extract from the transcript the appellants’ submission then said (errors in original):

If the Tribunal had consider carefully. The Tribunal would found it was a horrify and traumatised experience for Second Applicant. Is not clear Tribunal had gave opportunity to Second Applicants in this 2016 hearing to respond this kidnapping incident. Seems like Tribunal mainly focused on First Applicant. Second Applicant was the main witness in incident.

35    The transcript extract which the appellants’ submission sets out, is simply evidence given by the second appellant. It was not necessary for the Tribunal to give the second appellant an opportunity to respond to her own evidence given in an earlier proceeding before the Tribunal in circumstances where no finding adverse to the second appellant was made by the Tribunal by reference to that earlier evidence. It seems to me that that part of ground 3(b) is simply misconceived. Nor has it been demonstrated why it was necessary for the Tribunal to take into account the evidence given by the second appellant about the kidnapping in the earlier proceeding. In any event, the Tribunal’s reasons (at [9]) state that the Tribunal did take into account all of the evidence given by the appellants to the First and Second Tribunals.

36    In so far as this ground asserts that there was no opportunity given to the second appellant to comment and therefore give evidence of the alleged kidnapping to the Tribunal, that allegation is not made out. It is abundantly clear from the content of [35]-[43] that the Tribunal received a great deal of evidence from the appellants about the alleged kidnapping. In particular, the Tribunal extensively referred to evidence given by the second appellant both in a written statement and orally. The appellants have not demonstrated that the second appellant was not given a reasonable opportunity to provide to the Tribunal her account of the alleged kidnapping.

37    Furthermore, in so far as the submission and this ground of appeal complain that, in relation to the alleged kidnapping, the Tribunal mainly focussed on the evidence of the first appellant and not that of the second, that contention is not made out.

38    Accordingly, this ground of appeal must also be rejected.

Ground 4(a)

39    Again, this ground of appeal is difficult to understand. The heading to it and some of its content, suggests that the ground is concerned with [39] of the primary judge’s reasons as follows:

[39]    The Applicants submit that the Tribunal failed to ask a correct question – namely if it found that there was some risk in verifying the Applicants’ documentation then it must ask itself whether the Applicants did face a real risk of significant harm for a non-Convention reason if returned to Malaysia. As noted by counsel for the First Respondent, the comment regarding the risk of verification was not a concession on behalf of the Tribunal and did not relate to any findings. It was a description of the Tribunal’s processes and a precautionary step in the lead up to a finding, not a finding that the Applicants faced harm.

40    That paragraph, is itself somewhat unclear as to what aspect of the Tribunal’s decision it relates to. However, with the assistance of the Minister’s submission, it appears to me that both this ground of appeal and the paragraph from the primary judge’s reasons, are concerned with the observation made by the Tribunal at [43].

41    In that paragraph, the Tribunal addresses documents originating from Malaysia provided by the appellants to the Tribunal, including police statements. The Tribunal raised a concern about the genuineness of those documents and ultimately rejected the reliability of the statement to police in question. In so doing, the Tribunal stated, in effect, that it was reluctant to verify the genuineness of the documents (presumably by contacting the police in Malaysia) because to do so may expose the appellants or their families to the risk of harm.

42    The appellants essentially contend that that observation made by the Tribunal was a finding that the appellants faced some risk of being exposed to harm and that having made that finding the Tribunal was obliged to consider whether that risk amounted to a real risk of significant harm for the purpose of s 36(2)(aa) of the Migration Act. The primary judge rejected that contention on the basis that the comment made by the Tribunal regarding the risk of verification of the documents in question was not a finding that the appellants faced harm.

43    Ground 4(a) seems to challenge that conclusion.

44    I see no error in the primary judge’s conclusion. Fairly read, the observation made by the Tribunal was doing no more than adverting to the possible risk involved in the Tribunal making the kind of direct inquiry of the Malaysian police there referred to, if it was the case that claims made by the appellants that they were kidnapped and then coerced by police to withdraw statements previously given to the police about the kidnapping, were true. This was not a finding that it was likely the appellants would face a risk of harm if returned to Malaysia. It was merely an observation as to the possible risk involved in the particular verification process which the Tribunal was addressing, if the claims the appellants were making, were in fact true. Ultimately the Tribunal determined that the claims made were not credible.

45    Ground 4(a) must be rejected.

Ground 4(b)

46    The heading to this ground of appeal “Findings On Applicant’s Bank Card” suggest a challenge to the reasoning of the primary judge at [42] of his Honour’s reasons as follows:

[42]    At [32] the Tribunal held that the First Applicant’s failure to cancel bank accounts and bank cards went to his credibility, in particular about claims that he had been kidnapped by loan-sharks who had gained access to his banking details. The Tribunal set out why it doubted the Applicants’ claims. It was open to the Tribunal to reject the First Applicant’s explanation and use his unexplained conduct as a basis to reject his claims. This ground is a challenge to a credibility finding which was based on the Tribunal’s assessment of evidence and claims. No jurisdictional error is apparent.

47    This appeal ground is also ambiguous but as best I can discern it raises a failure by the primary judge to identify irrationality or illogicality in the Tribunal’s reasoning at [32].

48    There is no basis for a conclusion that the Tribunal’s reasoning at [32] is affected by jurisdictional error by reason of irrationality or illogicality. The Tribunal was there considering the claim made by the appellants that they feared being tracked or harmed by loan sharks or gangsters who were using the first appellant’s bank accounts to launder money, or that the first appellant was concerned about his tax or legal liability in respect of the illegal transactions passing through his bank accounts. In that context, the Tribunal considered that the appellants’ failure to cancel their existing bank accounts and open a new account, cast doubt on the truth of the appellants’ claimed fears. There is a plausible and logical connection between the appellants’ failure to cancel their bank accounts in the circumstances explained by the Tribunal at [32] and the Tribunal’s conclusion that that failure cast doubt on the truth of the appellants’ claims. The obvious and rational thing for the appellants to have done in the circumstances claimed by them, would have been to close their existing bank accounts and open new accounts. That the appellants did not do that and offered no compelling explanation as to why that was not done, was probative of whether their claims were genuine. It was not irrational or illogical for the Tribunal to reason that the appellants’ failure to switch bank accounts was probative of whether or not the existing accounts were being used to launder money as claimed.

49    This ground of appeal must be rejected.

Ground 4(c)

50    Again, the ground of appeal is ambiguously expressed. The heading “Challenge To Findings Of Fact” suggests that the ground seeks to challenge the reasoning of the primary judge under that same heading at [43] as follows:

[43]    The grounds which are summarised in [23](c)(vi)-(vii) above are challenges to factual findings. They particularly relate to the challenge to factual findings at [37] - [40] of the Tribunal’s decision. The Tribunal set out its concerns in relation to the Applicants’ account of the kidnapping and the use of the telephone by the Second Applicant to report the kidnapping to an acquaintance that she barely knew rather than the police. This conclusion was open to the Tribunal and is not attended by any irrationality or illogicality.

51    The ground of appeal suggests that the primary judge should have found error in the way in which the Tribunal dealt with evidence relating to the appellants contacting a Ms Tee Mee Yoke.

52    That matter is principally dealt with at [39]-[40] of the Tribunal’s reasons. The Tribunal was there dealing with the appellants’ claim that they were kidnapped by gangsters. The Tribunal considered that the evidence given by the appellants about the alleged kidnapping was unconvincing and cast doubt on the truth of the claims made by them. In particular, the Tribunal was concerned as to why, despite the evidence that the second appellant had three occasions to save herself and her husband from what was said to be a terrifying kidnapping, there was no evidence that she attempted to contact the police or a family member but only contacted her friend Ms Yoke.

53    The persons to whom the appellants did or did not turn to for assistance in relation to the kidnapping was a matter probative of whether or not the appellants’ claim to have been kidnapped was genuine. There was no illogicality or irrationality, in the Tribunal taking into account the identity of that person including the failure of the appellants to contact the police, in reaching the conclusion that it did. The Tribunal did not neglect the fact that the appellants “took action to save themselves no matter who they called” as is asserted by this ground. The Tribunal was entitled to have regard to whom it was the appellants asserted they turned to in order to save themselves. The person or authority called upon to provide assistance, whilst not determinative, is nevertheless logically probative of whether or not assistance was truly required.

54    Further, in so far as this ground seeks to impugn the Tribunal’s consideration of the authenticity of statements given to the police, it is not clear to me what error is being asserted.

55    This ground of appeal must also be rejected.

Ground 4(d)

56    This ground appears to relate to letters provided to the Tribunal by the appellants from a Malaysian member of Parliament and also the Australian High Commission in Kuala Lumpur. The heading to this ground of appeal correlates with the heading over [44]-[46] of the primary judge’s reasons which are in the following terms:

[44]    At [13] of the Applicants’ submissions, they complain that the Tribunal failed to give adequate consideration to a letter from the Australian High Commissioner’s Office, dated 13 October 2014. This letter was said to be in reply to an earlier letter from a Malaysian Member of Parliament. The Tribunal found the Member of Parliament’s letter did not indicate that he took any steps to verify the Applicants’ claims or to obtain documents in addition to the police statements. The Tribunal found that the letter did not support the Applicants’ claims and this finding was open to the Tribunal.

[45]    The Tribunal did not refer in its reasons to an acknowledgement letter from the Australian High Commissioner. The letter is addressed to the Malaysian Member of Parliament and states (omitting irrelevant parts);    

I refer to your letter dated 26 August 2014 in relation to “the case of (names of applicants omitted)”, which has been copied to his Excellency, Rod Smith PSM, the Australian High Commissioner to Malaysia.

The High Commissioner has passed your letter on to me for a response.

I can confirm that your letter, and the accompanying supporting documentation, has been referred to the relevant authorities in Australia for information and appropriate follow-up action.

Thank you for bringing this matter to my attention.

[46]    It is not necessary for the Tribunal to refer to every piece of evidence in every contention made by an applicant in its written reasons. There is nothing in the face of the document that suggests that it is relevant to any issue of substance that the Tribunal was required to determine.

57    The ground of appeal appears to challenge the primary judge’s observation in the first line of [46] that it was “not necessary for the Tribunal to refer to every piece of evidence in every contention made by the applicant in its written reasons”. As the primary judge’s reasons identify, his Honour was referring to the principle in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] (French, Sackville and Hely JJ). The primary judge did not err in placing reliance on that principle.

58    In particular as his Honour’s reasons show, the primary judge was dealing with a challenge made by the appellants based on the Tribunal’s failure to refer in its reasons to a letter from the Office of the Australian High Commission in Kuala Lumpur. The primary judge concluded that there was nothing on the face of that document to suggest that the letter was relevant to any issue of substance that the Tribunal was required to determine.

59    Ground 4(d) suggests that the Tribunal erred in not considering the letter from the Australian High Commission because that consideration might have overturned the Tribunal’s view about the appellants’ credibility. The letter was before the primary judge and the substance of it is set out in [45] of the primary judge’s reasons set out above. How or why the content of that letter was capable of impacting upon the Tribunal’s view of the appellants’ credibility was not explained by the appellants. The letter did little more than confirm the receipt of a letter from the Malaysian member of Parliament. There is no error in the primary judge’s conclusion that the letter was not relevant to any issue of substance before the Tribunal.

60    Ground 4(d) also contends that the Tribunal erred in failing to give weight to the letter of the Malaysian member of Parliament and seems to suggest that the Tribunal erred in not taking further steps to verify that letter and also to find out “what kind of supporting documents” accompanied the letter from the member of Parliament.

61    These challenges seem misconceived. The supporting documentation attached to the letter from the member of Parliament is referred to in that letter as “a police report dated 29 June”. That police report was before the Tribunal. There is no basis for suggesting that the Tribunal should have further inquired about supporting documents.

62    Furthermore, the appellants have not demonstrated that there was any obligation on the Tribunal to make any further inquiries with the Malaysian member of Parliament to “verify MP’s letter” as this ground contends should have been done. Whilst a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertainable could give rise to jurisdictional error in some circumstances (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25], there is nothing to suggest that the Tribunal acted on the basis that the letter required verification or that verification of the letter was a critical fact.

63    The letter from the Malaysian member of Parliament was referred to by the Tribunal at [43] of its reasons. The issue there being dealt with included the authenticity of the police statement of Ms Tee Mee Yoke relied upon by the appellants. The authenticity of the letter from the Malaysian parliamentarian was not in issue. It was not necessary for the Tribunal to have taken any further step “to verify MP’s letter” as ground 4(d) asserts. Nor is it correct to say, as ground 4(d) also says, that the Tribunal “put no weight for MP’s letter”. As is apparent on a fair reading of [43] of the Tribunal’s reasons, the Tribunal did not have a concern about the authenticity of the letter or as to what the letter said. Rather, the Tribunal did not consider that what was said was of much assistance in corroborating the claims made by the appellants about being kidnapped or the claim made by the appellants as to why it was that two different versions of Ms Tee Mee Yoke’s statement to the police were in existence. It was open to the Tribunal to take the approach it did and no jurisdictional error is demonstrated as the appellants asserted.

64    The submission made by the appellants in support of this ground also suggests that the Tribunal should have had no doubt about the genuineness of the police report that was attached by the member of Parliament in the letter copied to the Australian High Commissioner. If and in so far as the appellants contended, that the fact that the police statement was attached to that letter, should have been regarded by the Tribunal as confirming the reliability of its content, the submission is also misconceived. The letter does not indicate that the member of Parliament was personally involved in dealing with the police or that he took any steps to verify the content of the police report. It was open to the Tribunal to conclude, as the Tribunal seems to have done at [43] of its reasons, that the member of Parliament simply attached the police report made by Ms Tee Mee Yoke that was provided to him by her.

65    This ground of appeal must also be dismissed.

Conclusion

66    As the appellants have failed on each of their grounds of appeal their appeal must be dismissed. It follows that orders should be made dismissing the appeal and requiring the appellants to pay the Minister’s legal costs.

Associate:

Dated:    12 August 2019