ACL17 v Minister for Immigration
[2018] FCCA 3191
•21 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACL17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3191 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Malaysia – applicant disbelieved in critical respects – whether the Tribunal erred in its reasoning process, failed to accord procedural fairness, failed to consider relevant information or took into account irrelevant considerations – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.425 |
| Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510 Applicant WAEE vMinister for Immigration (2003) 75 ALD 630 ARG15 v Minister for Immigration [2016] FCAFC 174 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Minister for Immigration v Guo & Anor (1997) 191 CLR 559 Minister for Immigration v Lat (2006) 151 FCR 214 Minister for Immigration v MZYTS (2013) 230 FCR 431 Minister for Immigration v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429 MZYXP v Minister for Immigration [2013] FCA 1352 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 NAHI v Minister for Immigration [2004] FCAFC 10 Prasad v Minister for Immigration (1985) 6 FCR 155 Randhawa v Minister for Immigration (1994) 52 FCR 437 Sidhu v Minister for Immigration [2017] FCA 889 SZMDB v Minister for Immigration (2008) 105 ALD 499 VTAG v Minister for Immigration (2005) 141 FCR 291 VWFW v Minister for Immigration [2006] FCAFC 29 WAJS v Minister for Immigration [2004] FCAFC 139 |
| Applicant: | ACL17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 47 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 5 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms M Bridgett |
| Solicitors for the Applicant: | HIV/AIDS Legal Centre |
| Solicitors for the Respondents: | Ms M Donald of Sparke Helmore |
ORDERS
The application as amended on 1 September 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 47 of 2017
| ACL17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 6 December 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant, a citizen of Malaysia, arrived in Australia on 15 March 2011 holding an Electronic Travel Authority (Class UD) visa, which ceased on 15 June 2011, after which the applicant remained in Australia without a valid visa.[1] On 29 January 2015, the applicant made an application for a protection visa.[2] On 25 August 2015, the delegate refused to grant the applicant a protection visa.[3]
[1] Court Book (CB) 46
[2] CB 1-27
[3] CB 43-56
On 7 September 2015, the applicant applied to the Tribunal for review of the delegate’s decision.[4] On 30 November 2016, the applicant appeared before the Tribunal.[5] On 6 December 2016, the Tribunal affirmed the decision under review.[6]
[4] CB 57-58
[5] CB 72
[6] CB 81-95
Applicant’s claims
The applicant’s claims to fear harm in Malaysia were advanced in his visa application,[7] at an interview with the delegate on 29 May 2015, in a written statement to the Tribunal dated 25 November 2016[8] and at a hearing before the Tribunal on 30 November 2016. The applicant claimed to fear harm on the basis of his race, political opinion, religion and his recent diagnosis with HIV.
[7] CB 19-22
[8] CB 69
In support of his application, the applicant made a number of factual claims, which may be summarised as follows:
a)he had been rejected for a loan in Malaysia by a government official on the basis of his ethnicity and because he had voted against the then current government in the 2005 national election;[9]
b)he had a number of experiences where he was detained by police, suspected of being a drug dealer and of being an Indonesian citizen living illegally in Malaysia;[10]
c)due to his Chinese and Indian ethnicity, he was often identified as a Muslim Malay. He was harmed by local Muslims and discriminated against on the basis of his appearance.[11] He was bullied and beaten by Malay people on a number of occasions during and just after leaving school in around 1999 on the basis of his skin colour and race;[12]
d)he had not yet been baptised as a Catholic but he had attended the Catholic Church at Flemington every Sunday since March 2016. He would be tortured by Muslim extremists for attending church in Malaysia because his skin was dark and he would be perceived to be ethnic Malay of Muslim faith;[13]
e)when he went to a Buddhist temple in Malaysia, people would ask him why he was there and abuse him for going. This was on the basis of his racial appearance;[14]
f)he had been involved in one protest for the Bersih movement in Malaysia and three whilst in Australia;[15] and
g)he was diagnosed with HIV in October 2016 after getting a tattoo in Malaysia.[16] People were afraid of HIV in Malaysia and he would be abandoned and looked down upon. Further, he could not afford the cost of treatment in Malaysia.[17]
[9] CB 21 and 54; 84 at [18]
[10] CB 85 at [19]
[11] CB 19; 69
[12] CB 87 at [27]
[13] CB 69; 83 at [14]
[14] CB 85 at [21]
[15] CB 69; 86 at [22]
[16] CB 86 at [23]
[17] CB 86 at [23]
Tribunal decision
The Tribunal set out the relevant law and the matters addressed at the Tribunal hearing in some detail.[18] The Tribunal identified a number of concerns that arose during the course of the hearing, including that:
a)the applicant was unable to name the church at Flemington where he claimed to have been attending services since March 2016 every Sunday;[19]
b)the DFAT[20] country information did not support many of the applicant’s claims to fear harm;[21]
c)the applicant had not raised his claims regarding the Bersih movement or his Catholic faith in his application for a protection visa;[22]
d)there was a four-year delay between the applicant’s arrival in Australia and his claim for protection. The Tribunal did not consider the applicant’s explanation for the delay, namely that he was scared he would be arrested if he applied for a protection visa, to be credible;[23] and
e)the Tribunal considered the applicant to be vague on occasions in discussing his claims to have been beaten and bullied by Malay people.[24]
[18] CB 82 at [3]-[6]; 83-89 at [14]-[38]
[19] CB 94 at [54]
[20] Department of Foreign Affairs and Trade
[21] CB 86 at [21]; 89 at [38]; 92 at [50]; 94 at [55]
[22] CB 86 at [24]
[23] CB 86 at [25]
[24] CB 87 at [26]-[30]
The Tribunal’s overall assessment of the applicant’s claims was that he had exaggerated the claimed incidents with a view to strengthening his visa application.[25] This, coupled with the lack of detail in support of particular claims, led the Tribunal to find that the applicant was not a credible witness.[26]
[25] CB 89 at [38]; 91 at [44]-[45]; 92 at [48]-[49]
[26] CB 93 at [51]
Whilst the Tribunal was prepared to accept aspects of the applicant’s evidence, including that he had participated in Bersih rallies in Malaysia and Australia, the Tribunal did not accept that many of the claimed incidents of past harm had in fact occurred.[27] On this basis, and by reference to DFAT country information, the Tribunal rejected the applicant’s claims to fear harm on the basis of his race or ethnicity, religion, real or imputed political opinion and HIV diagnosis.[28]
[27] CB 91 at [45]; 93 at [53]
[28] CB 86-92 at [22]-[23], [36], [47]; 94 at [55]; 93 at [52]; 94 at [54]; 91 at [45]
On the basis of its credibility findings, as well as its assessment of the available country information, the Tribunal did not accept that the applicant faced a real chance of serious harm if he returned to Malaysia.[29]
[29] CB 94 at [56]
On the basis of its anterior findings, the Tribunal was not satisfied that there was a real risk that the applicant would suffer significant harm if he were to return to Malaysia for the reasons he had claimed. In particular, the Tribunal noted that any risk the applicant may face would be faced by the population generally in Malaysia and not by the applicant personally.[30] Accordingly, the Tribunal affirmed the decision under review.[31]
[30] CB 94 at [58]
[31] CB 95 at [62]
The present proceedings
These proceedings began with a show cause application filed on 9 January 2017. The applicant now relies upon an amended application filed on 1 September 2017. There are six particularised grounds in that application:
1. The Second Respondent fell into jurisdictional error by failing to disclose whether it formed a state of satisfaction in relation to integers of the Applicant's claims.
Particulars
a. The Second Respondent failed to consider the Applicant's claim that he would face persecution and/or torture in Malaysia while practicing Christianity because he would be perceived as an ethnic Malay Muslim practicing Christianity due to his dark skin colour. The Second Respondent accepted that the Applicant may have an interest in Christianity but found that country information suggested that his fears of persecution were not well-founded because Malaysian Christians in general do not face persecution in Malaysia. The Second Respondent did not consider specifically whether ethnic Malays as distinct from Malaysian Christians may suffer persecution in Malaysia when practicing Christianity, or whether the Applicant would be perceived as ethnic Malay because of his dark skin colour and therefore suffer persecution.
b. The Second Respondent generally found that the Applicant would not be subjected to torture ifhe returned to Malaysia, but failed to specifically consider whether the Applicant would be subjected to torture as claimed if he practiced Christianity in Malaysia because of his ethnic Malay appearance and the fact he was Christian.
2. The Second Respondent fell into jurisdictional error by not providing procedural fairness to the Applicant in relation to certain findings it made.
Particulars
a. The Applicant contended that he would be abandoned because of his HIV status.
b. The Second Respondent found that the Applicant could reasonably be expected to enjoy some family support in Malaysia based solely on the information that the Applicant stays in touch with his family once a month.
c. At the hearing, the Second Respondent did not inquire from the Applicant:
i. Who he feared would abandon him because of his HIV status; or
ii. Whether his family in Malaysia were aware of his HIV status; or
iii. Whether his family would support him if they discovered he was HIV positive; or
iv. What beliefs his family held about HIV and/or people living with HIV.
d. The Second Respondent did not put to the Applicant any information that it relied on to make the finding that the Applicant would enjoy the support of his family and therefore fell into error.
e. The Second Respondent failed to deal with the claim that the Applicant would be abandoned because of his HIV status by not affording the Applicant the opportunity to be heard on this issue.
f. The Second Respondent made adverse credibility findings against the Applicant for the delay in applying for a protection visa and providing the information in his letter of 25 November 2016 to the Tribunal. At the review hearing, when it was put to the Applicant why this information was not provided by the deadline, the Applicant responded that many things happened to him during that period. The Second Respondent did not inquire from the Applicant what he claimed happened and proceeded with other questions. The Applicant was not given adequate opportunity to respond to the Tribunal's questions in relation to the delay.
3. The Second Respondent fell into jurisdictional error by failing to consider relevant information that was central to the Applicant’s claims.
Particulars
a. The Applicant claimed at the hearing that he would be discriminated against on account of his HIV condition, that people would be scared of him and that he would be looked down upon. The Second Respondent made a general finding that the Applicant would not face discrimination in Malaysia because of his HIV condition based on country information it cited about the Malaysian government's attitude towards HIV sufferers and because the Applicant provided very little evidence of this discrimination. The Second Respondent in its decision referred to information from Malaysia's National Strategic Plan for Dealing with HIV/AIDS for the period of 2011 to 2015 however failed to consider or mention in its decision information in the same plan that stated that stigma and discrimination continues to be an issue for people in Malaysia.
b. The Second Respondent in rejecting the Applicant's claim that he would suffer persecution in Malaysia when attempting to practice Christianity, failed to consider country information squarely before it. The Second Respondent in its decision refers several times to a DFAT Country Information Report for Malaysia dated 19 July 2016 but failed to consider information in the report which stated that Muslims in Malaysia who are primarily ethnic Malay, face high levels of official discrimination if they attempt to convert to Christianity and are compelled to attend religious rehabilitation centres for up to 600 hours. This information was central to the Applicant's claim that he would suffer persecution and/or torture in Malaysia if he practiced Christianity because he would be perceived to be a Muslim Malay and this information was not mentioned in the Second Respondent's decision.
4.4. The Second Respondent fell into jurisdictional error by making findings based on no evidence.
a. The Applicant claimed that he would be subjected to discrimination and abandoned on account of his HIV condition.
b. The Second Respondent in its decision states that the country information it refers to suggested that the Malaysian government actively pursues a policy of attempting to manage and eradicate HIV/AIDS and provides significant assistance to sufferers. The Second Respondent also referred to the DFAT report indicating that Malaysia has well established and extensive health care sector. Based on this country information the Tribunal found the Applicant would not face discrimination if he returned to Malaysia on account of HIV status.
c. While the country information cited by the Second Respondent to make its finding may have been relevant to whether the Applicant would face discrimination from the Malaysian government, the Tribunal had no evidence to make a finding that the Applicant would not suffer discrimination from non-state actors and/or the Malaysian community.
d. The Second Respondent also made the findings in paragraphs 2(a)-(e) above that the Applicant would have support from family available to him based on no evidence.
5.5. The Second Respondent fell into error by failing to take into account the dates of the claims made by the Applicant to explain the delay in applying for a protection visa.
a. The Tribunal made a finding that the applicant's explanation for the delay was not credible and not consistent with the Applicant fearing harm if he returned to Malaysia.
b. The Second Respondent fell into error by failing to take into account when the Applicant began practicing the Catholic religion. Any fear of harm arising from this could only have arisen after this point in time.
c. The Second Respondent fell into error by failing to take into account the date of the Applicant's diagnosis of HIV. Any fear of harm arising from this could only have arisen after this point in time.
d. The Second Respondent fell into error by considering the delay in regards to all the claims for protection made by the Applicant, and by failing to differentiate when the claims were made to the Tribunal.
e. By failing to differentiate when the claims were made by the Applicant, the Tribunal failed to take into account that there was no or only a limited delay in making these claims for protection.
6.6. The Second Respondent fell into error by taking into account irrelevant considerations in relation to central elements of the Applicant's claims and failed to deal with the claim that the Applicant would suffer discrimination on account of his HIV status.
a. In rejecting the Applicant's claim that he would suffer discrimination on account of his HIV status and that he would not be able to access treatment for his condition, the Second Respondent relied upon Malaysia's National Strategic Plan for Dealing with HIV/AIDS for the period of 2011 to 2015.
b. At the date of the decision, this plan was outdated and the relevant plan for the period was the “National Strategic Plan for Ending AIDS 2016-2030.” Given that the Second Respondent was required to apply a forward looking test, the Second Respondent erred in relying on the older irrelevant plan in making its finding where the new relevant plan was publically available.
In addition to the court book filed on 2 June 2017, I have before me as evidence the affidavit of Vikas Parwani made on 1 September 2017, to which is annexed a transcript of the Tribunal hearing conducted on 30 November 2016, and other documents including the Malaysia National Strategic Plan on HIV/AIDS 2011-2015; Malaysia National Strategic Plan Ending AIDS 2016-2030 and DFAT Country Information Report, Malaysia, 19 July 2016. I also received after the trial the affidavit of Mr Parwani made on 12 November 2018 in which he deposes as to when the Malaysia National Strategic Plan Ending AIDS 2016-2030 became publicly available.
Both the applicant and the Minister filed pre-trial written submissions and made oral submissions through their representatives at the trial of this matter on 5 November 2018.
Consideration
Ground 1
By Ground 1, the applicant contends that the Tribunal failed to disclose whether it reached a state of satisfaction on relevant integers in his claims. Particular (a) of Ground 1 frames this allegation as a failure by the Tribunal to specifically consider whether ethnic Malays as distinct from Malaysian Christians may suffer persecution in Malaysia when practising Christianity or whether the applicant would be perceived as an ethnic Malay because of his dark skin colour and therefore suffer persecution. Particular (b) of Ground 1 contends that the Tribunal failed to specifically consider whether he would be subjected to torture as claimed if he practised Christianity because of his ethnic Malay appearance.
I prefer the Minister’s submissions on this ground. Regard must be had to the context in which the applicant’s religious claims were developed in the course of the review process. The first time that this claim was made was by letter to the Tribunal dated 25 November 2016.[32] In that letter, the applicant claimed that he had become interested in Catholicism in March 2016, was currently attending a Catholic church in Flemington every Sunday, and would have difficulties practising his Catholic faith in Malaysia because his skin was dark and he appeared to be an ethnic Malay of Muslim faith. On that basis, he feared that he would be tortured by Muslim extremists when he attended church in Malaysia. The applicant gave oral evidence in support of this claim during the Tribunal hearing.
[32] CB 69
The Tribunal’s reasons demonstrate that it considered the applicant’s claim to fear harm if returned to Malaysia on the basis of his interest in Catholicism and his ethnic Malay appearance in the context in which they were made, and found that the applicant had exaggerated that claim in an effort to strengthen his protection visa application.[33] In so finding, the Tribunal had regard to the applicant’s oral evidence that he had been a practising Buddhist in Malaysia and had suffered some verbal abuse by ethnic Malays when he regularly attended a Buddhist temple on the basis of his racial appearance, but had not been physically attacked on any occasion in relation to his religious activities.[34] The Tribunal also had regard to DFAT country information which indicated that Malaysian Christians were generally able to practise their religion without interference and did not face official or societal discrimination or violence on a day to day basis.[35]
[33] CB 92 at [48]
[34] CB 92 at [46]
[35] CB 92 at [47]
The Tribunal’s findings on whether the applicant would be subjected to torture for practising Christianity on the basis of his racial appearance were subsumed in its more general findings with respect to his claims to fear harm on the basis of practising Christianity in Malaysia. The Tribunal’s consideration no doubt also reflected the fact that the applicant’s claim that he was taken to be an ethnic Malay was based on nothing except skin colour, which in turn was based on a contestable assumption that ethnic Malays typically are dark skinned. The transcript of the Tribunal hearing reveals that the Tribunal discussed with the applicant the DFAT country report it relied on and indicated that this report did not support his claim that he would be tortured by Muslim extremists.[36] The Tribunal also referred to the applicant’s oral evidence that he feared harm due to his interest in Catholicism because he had read a report that Malay people attacked Christians, and noted the applicant had not provided any further details of this claim.[37]
[36] Transcript, pages 34-35
[37] CB 92, [47]
Given the generality of the applicant’s claim and in circumstances where the country information before the Tribunal indicated that a broad range of ethnicities practised Christianity in Malaysia and Christians were generally free to practise their religion, the Tribunal’s reasons adequately address and dispose of the claim.[38] Ground 1 does not reveal any jurisdictional error on the part of the Tribunal.
[38] See DFAT Country Information Report, page 14, in first affidavit of Mr Parwani, page 88
Ground 2
Ground 2 contends that the Tribunal failed to accord the applicant procedural fairness by failing to put to him any of the information that it relied on in finding that he would enjoy the support of his family. The applicant contended that he would be abandoned because of his HIV status. The Tribunal found that the applicant could reasonably be expected to enjoy some family support in Malaysia based solely on the information that the applicant stays in touch with his family once a month.[39]
[39] CB 93 at [50]; Transcript, page 11:39 to page 12:1
At the hearing, the Tribunal did not enquire from the applicant:
a)who he feared would abandon him because of his HIV status; or
b)whether his family in Malaysia were aware of his HIV status: or
c)whether his family would support him if they discovered he was HIV positive; or
d)what beliefs his family held about HIV and/or people living with HIV.
The applicant contends that the Tribunal did not put to the applicant any information that it relied on to make the finding that the applicant would enjoy the support of his family and therefore fell into error.
The Tribunal is said to have failed to deal with the claim that the applicant would be abandoned because of his HIV status by not affording the applicant the opportunity to be heard on this issue.
The Tribunal made adverse credibility findings against the applicant for the delay in applying for a protection visa and providing the information in his letter of 25 November 2016 to the Tribunal.[40] At the hearing, when it was put to the applicant why this information was not provided by the deadline, the applicant responded that many things happened to him during that period. The Tribunal did not enquire from the applicant what he claimed happened and it proceeded with other questions.[41] The applicant contends that he was not given adequate opportunity to respond to the Tribunal’s questions in relation to the delay.
[40] CB 92 at [49]
[41] Transcript, page 29:6-11
The Minister submits that the applicant’s contention is misconceived. The Tribunal found that the applicant could be reasonably expected to enjoy some family support if he returned to Malaysia in circumstances where the applicant himself gave evidence that he had family in Malaysia and that he contacted them about once a month.[42] The Tribunal was not bound to accept the applicant’s evidence that he would be “abandoned” and was entitled to apply its own reasoning processes to the claims made. The Minister contends that it was not a denial of procedural fairness not to reveal those thought processes to the applicant.[43]
[42] CB 93 at [50]
[43] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591-592
I accept that, to the extent that this ground contends that the Tribunal failed to give the applicant an opportunity to be heard in respect of his HIV claims, the transcript evidence reveals that the applicant was plainly questioned and given an opportunity to articulate his claims to fear harm in respect of his HIV status.[44] In response to the Tribunal’s question as to why he would be discriminated against, the applicant simply responded that, “If you have this disease in Malaysia, people will be afraid of you and you will be abandoned and you will be looked down on”.[45] The applicant did not give any further detail despite being on notice that the “purpose of the hearing” was for the applicant to “give evidence in support of [his] case” and that this was his “opportunity to raise any other matters” that the applicant considered relevant.[46] It is well established that contrary to the assertions raised by this ground, it was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts.[47] The Tribunal was not required to make the applicant’s case for him nor deal with claims which were not articulated or did not clearly arise from the materials before it.[48] The evidence before the Court reveals that the applicant was given a real and meaningful hearing in accordance with s.425 of the Migration Act 1958 (Cth) (Migration Act) and no breach of the procedural fairness requirements in Part 7, Division 4 of the Migration Act has been identified by the applicant.
[44] Transcript, pages 39-43
[45] Transcript, page 39.34-35
[46] Transcript, page 3
[47] Minister for Immigration v Lat (2006) 151 FCR 214
[48] Abebe v The Commonwealth (1999) 197 CLR 510 at [187]; Prasad v Minister for Immigration (1985) 6 FCR 155; SZMDB v Minister for Immigration (2008) 105 ALD 499; NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at 19 [60] per Black CJ, French and Selway JJ
In relation to the applicant’s complaint that he was not given an adequate opportunity to respond to the Tribunal’s questions in relation to delay, again, it was for the applicant to make out his case before the Tribunal and the Tribunal was under no obligation to inquire as to the applicant’s claimed reasons for the delay. Further, by virtue of the delegate’s decision, the applicant was on notice that an issue on the review was his credibility and that his delay in seeking protection was relevant to this issue.[49] The applicant might have advanced a case on judicial review that the Tribunal’s finding at [50] that he “could reasonably be expected to enjoy some family support if he returned to Malaysia” was irrational. It was based only upon the applicant’s evidence that he contacted his family about once a month. The finding took no account of the fact that his family apparently are unaware of his HIV status and his evidence of social ostracism of persons with HIV in Malaysia. That, however, was not how the case was put. Ground 2 as put does not establish any jurisdictional error.
[49] CB 54
Ground 3
Ground 3 contends that the Tribunal failed to consider relevant information that was central to the applicant’s claims. Particular (a) to Ground 3 asserts that the Tribunal failed to consider the information from the Malaysia National Strategic Plan on HIV and AIDS 2011 – 2015 that stated that stigma and discrimination continued to be an issue. Particular (b) contends that the Tribunal failed to consider the DFAT country report dated 19 July 2016 that stated that Muslims in Malaysia who were primarily ethnic Malay faced high levels of official discrimination if they attempted to convert to Christianity and were compelled to attend religious rehabilitation centres.
I accept the Minister’s submissions on this ground.
Before the Tribunal, the applicant claimed to fear harm as a result of his HIV status on the basis that he would be discriminated against and would not be able to afford treatment costs. The applicant provided no country information to support his claim that he would be discriminated against on his return to Malaysia. It is trite to recall that the choice and assessment of country information is a factual matter for the Tribunal.[50]
[50] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]
While the Tribunal did not expressly refer to the particular part of the Malaysia National Strategic Plan on HIV and AIDS 2011 – 2015 about social stigma and discrimination, the Tribunal identified the document in its written reasons, and there is no support for the contention that the Tribunal overlooked the particular excerpt to which the applicant now points.[51] On the material before it, including the Malaysia National Strategic Plan, it was reasonably open to the Tribunal to conclude that the applicant did not face a risk of serious harm on return. Further, the applicant has not identified anything in the country information before the Tribunal which, if not considered, would have amounted to jurisdictional error because the Tribunal had failed to consider centrally important evidence which resulted in the Tribunal failing to consider the applicant’s claims.[52]
[51] CB 93, [50]. Applicant WAEE vMinister for Immigration (2003) 75 ALD 630 at [47]
[52] Minister for Immigration v SZRKT (2013) 212 FCR 99; Sidhu v Minister for Immigration [2017] FCA 889 at [33]
It is true that the Tribunal at [50] dealt with the claim of discrimination and abandonment by reference to assumed family support. As noted above, the applicant might have challenged that finding on the basis of asserted irrationality but he has not done so. If he had done so, that issue would have impacted also on the Court’s consideration of this ground.
With respect to the reference in the DFAT country report to official discrimination of Muslims/ethnic Malays, this information had no relevance to the applicant’s individual circumstances. The DFAT country report stated that ethnic Malays were Muslims at birth and their Muslim status was recorded on their birth certificate and national identification card.[53] As such, the information about the government compelling individuals attempting to convert from Islam to attend rehabilitation programs simply did not apply to the applicant.
[53] DFAT Country Information report at [3.20] in first affidavit of Mr Parwani, page 85
Ground 4
Ground 4 contends that there was no evidence for the Tribunal’s findings that the applicant would not suffer discrimination from non-state actors and would have his family’s support. Again, this ground as put is misconceived, although my comments above in relation to irrationality apply equally here.
First, the Tribunal did not make a positive finding that the applicant would not suffer discrimination from non-state actors. Rather the Tribunal’s reasons, read fairly, reveal that the Tribunal could not be satisfied of the applicant’s claims to fear serious harm on the basis of the material before it. The Tribunal was not required to accept uncritically any claims made by an applicant[54] nor was the Tribunal obliged to provide evidence in support of its conclusions in this regard.[55]
[54] Randhawa v Minister for Immigration (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J
[55] WAJS v Minister for Immigration [2004] FCAFC 139 at [17]
Secondly, it was the applicant’s own evidence at the hearing that he was in regular contact with his family in Malaysia that led the Tribunal to conclude that he could reasonably be expected to enjoy some family support if he returned to Malaysia. Accordingly, the applicant has not shown that there was no evidence at all upon which the finding could have been based.[56]
[56] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.
Ground 5
Ground 5 contends that the Tribunal erred in taking into account the applicant’s delay in seeking protection in circumstances where the applicant’s claims to fear harm as a Catholic and by reason of his HIV status, could not have been raised by the applicant at the time he made a protection visa application. I accept the Minister’s submission that the applicant’s contentions in this regard misread the Tribunal’s findings.
It was open to the Tribunal to take into account the applicant’s delay in seeking to apply for protection in assessing the applicant’s credibility. However, the adverse credibility finding had no bearing on the Tribunal’s reasons regarding the applicant’s claim to be a practising Catholic or his claimed HIV status.
The Tribunal was “prepared to accept that the applicant may have developed an interest in the Catholic religion since March 2016 and [was] prepared to accept that the applicant [had] developed that interest for reasons other than strengthening his protection visa application”.[57] However, it was the absence of evidence from the applicant in relation to this claim and the country information before the Tribunal which led it to reject that the applicant faced a real risk of harm as a Catholic.[58]
[57] CB 94, [54]
[58] CB 94, [54]
Further, the Tribunal accepted that the applicant was HIV positive but concluded that the applicant would not face harm as the country information before the Tribunal did not support the applicant’s claims.[59] Neither of the applicant’s claims to fear harm as a Catholic or by reason of his HIV status were rejected by the Tribunal as a result of the applicant’s delay in seeking protection.
[59] CB 94, [55]
Ground 6
Ground 6 contends that the Tribunal erred by taking into account the Malaysia National Strategic Plan on HIV and AIDS 2011 – 2015 and not the National Strategic Plan for Ending AIDS 2016-2030. The choice and assessment of country information was a factual matter for the Tribunal to determine.[60] It cannot be said that, as a matter of law, the 2011-2015 National Plan was irrelevant to the Tribunal’s consideration. I accept from the later affidavit of Mr Parwani that the more recent Plan was available at the time of the Tribunal hearing. It follows that the applicant could have made use of it if he had wished to do so. Further (absent a Ministerial direction), the Tribunal was not obliged to inquire into more recent country information than was before it.[61]
[60] NAHI at [11]-[13]
[61] VTAG v Minister for Immigration (2005) 141 FCR 291 at [41]; VWFW v Minister for Immigration [2006] FCAFC 29
I accept from Minister for Immigration v MZYTS,[62] ARG15 v Minister for Immigration[63] and MZYXP v Minister for Immigration,[64] that where the Tribunal has various pieces of country information before it, it may fall into error by not considering the most recent or cogent information. That does not mean, however, that the Tribunal has to go hunting for information it does not have. There is no general duty to inquire and nothing in this case triggered an obligation to inquire.[65]
[62] (2013) 230 FCR 431 at [72]-[75]
[63] [2016] FCAFC 174 at [71]
[64] [2013] FCA 1352 at [98]
[65] Minister for Immigration v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429
Conclusion
I conclude that the applicant is unable to establish that the Tribunal decision is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 21 December 2018
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