Adi17 v Minister for Immigration

[2019] FCCA 3127

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADI17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3127

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Protection (Class XA) visas – whether the standard of interpretation gives rise to the applicants suffering any practical injustice of unfairness in the hearing before the Tribunal – whether the Tribunal failed to consider any relevant information or document – whether the applicants had a real and meaningful hearing before the Tribunal – whether the Tribunal’s adverse findings were open – no evidence to support the allegation of bias – no jurisdictional error made out – application dismissed

Legislation:

Migration Act 1958 (Cth), ss.5AAA, 5J, 36, 476

First Applicant: ADI17

Second Applicant: ADJ17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 82 of 2017

Judgment of: Judge Street

Hearing date: 31 October 2019

Date of Last Submission: 31 October 2019

Delivered at: Sydney

Delivered on: 31 October 2019

REPRESENTATION

The Applicants appeared in person.

Solicitors for the Respondents: Ms D Stone
Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed.

3. The applicants pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 31 October 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 82 of 2017

ADI17

First Applicant

ADJ17

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 December 2016 affirming the decision of a delegate not to grant the applicants Protection (Class XA) visas.

2. The applicants were found to be citizens of Malaysia and their claims were assessed against that country. The applicants arrived in Australia on 4 June 2015. The applicants claimed to fear harm by reason of their religion, being Christianity, and also by reason of their Chinese ethnicity. On 27 January 2016, a delegate found the applicants failed to meet the criteria for the grant of a protection visa.

3. On 17 February 2016, the applicants applied to the Tribunal for review. By letter dated 30 September 2016, the applicants were invited to attend a hearing on 18 November 2016. Both applicants appeared on that date to give evidence and present arguments.

4. The Tribunal, in its reasons, identified the background for the review and set out the relevant law. The Tribunal set out the applicants’ claims and evidence in Annexure A incorporated into the Tribunal’s reasons. Annexure A identifies that the applicants were both given the opportunity to stay in the room while the first applicant gave evidence; however, the applicants chose to give their evidence separately.

5. The Tribunal summarised the first applicant’s claim and her alleged fear in going back to Malaysia and identified the Tribunal raising with the first applicant DFAT country information to the effect that Christians occasionally faced low-level official discrimination or societal discrimination or violence in Malaysia, however, generally they are able to practice their religion without interference.

6. The Tribunal, in its annexure A, identifies then raising with the second applicant why he fears harm returning to Malaysia and referred to his claims that Malays and Muslims would harass him and that he did not want to go back to Malaysia because of his Chinese ethnicity and being a Christian. The Tribunal recorded putting to the applicants the DFAT country information in relation to low-level discrimination. The Tribunal also summarised the substance of the DFAT country information in annexure A. The Tribunal set out the relevant law in an attachment to the reasons.

7. The Tribunal accepted the applicants are Christian but did not accept that the law in Malaysia has prohibited Christianity from being preached in Malaysia or that there is a real chance the second named applicant will be stopped from reading his Malaysian bible.

8. The Tribunal referred to the applicants’ claims in relation to police maliciously arresting Chinese and raiding and searching the church. The Tribunal noted that the first named applicant provided no country information in support of these claims despite their alleged regularity. The Tribunal found the applicants’ evidence at the hearing was vague and unconvincing. The Tribunal also asked at the hearing if the first applicant would like additional time to provide further country information in support of her claims, and the first applicant declined.

9. The Tribunal did not accept the assertion that the police’s action was malicious or was deliberately targeting Christians. The Tribunal did not accept the applicants had been stopped by the authorities from practicing their Christianity. The Tribunal did not accept that, given the vague accounts and lack of country information, police raids and searches occur with any regularity or are widespread or that authorities attempt to stop Christians from practicing their Christianity. The Tribunal found that, according to DFAT country information, Malaysian Christians are generally able to practice their religion without interference.

10. The Tribunal referred to the applicants’ family that may be upset by the applicants Christianity but was not satisfied their inability to work in the family business means that they will have difficulty getting a job and raising their children or that there is a real chance of serious harm. The Tribunal found the applicants’ family’s dislike of Christianity is not condoned by the authorities and that country information assesses that they do not face societal discrimination or violence on a day-to-day basis. The Tribunal did not accept that without their family’s help, that the applicants may have difficulty in pursuing their religious faith.

11. The Tribunal accepted the applicants may face low level discrimination only and did not accept that there is a real chance they will face serious harm in education and political opportunity.

12. The Tribunal was not satisfied on the evidence that there is a real chance the applicants will face serious harm as defined by s 5J(4) and s 5J(5) of the Act because they are Chinese Malay and/or because they are Christians. The Tribunal was not satisfied the applicants are persons in respect to whom Australia has protection obligations under s 36(2)(a) of the Act.

13. The Tribunal found there were not substantial grounds for the believing that, as a necessary and foreseeable consequence of the applicants being returned from Australia to Malaysia, there is a real risk the applicants will suffer significant harm. The Tribunal found the applicants did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 11 January 2017. On 25 May 2017, a Registrar of the Court made orders giving the applicants an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, this Court explained to the applicants the nature of the hearing and both applicants confirmed they understood the nature of the hearing as explained by the Court.

3. From the bar table, the first applicant asserted that there had been a problem with the Malaysian interpreter at the hearing before the Tribunal. The Court sought to explore with the first applicant why no evidence had been put on to support the alleged interpreter errors and no satisfactory reply was given.

4. The Court then asked the first applicant to identify the alleged errors in relation to interpretation. The applicant referred to page 192 of the Court Book and suggested that the interpreter had used the word “Google” rather than “brother”. There is no reference to either word on page 192 and on no view could the said alleged error have been material, given the absence of reference to same in the Tribunal’s reasons. There were two other alleged errors identified by the first applicant said to appear on other pages, and no such error was identified in the actual reasoning of the Tribunal.

5. There is no basis to find that there is any material error in the conduct and standard of interpretation in the hearing before the Tribunal. Indeed, the Tribunal’s summary of the hearing, as identified in annexure A to the Tribunal’s reasons, is inconsistent with there being any difficulty with the interpreter. The summary of what occurred in respect of the hearing identified in annexure A is consistent with the applicants having a real and meaningful hearing before the Tribunal.

6. The Court finds that there is no evidence to support any material interpretation error by the applicants and that, on the face of the material before the Court, the standard of interpretation did not give rise to the applicants suffering any practical injustice or unfairness in the conduct of the review by the Tribunal. No jurisdictional error arises by reason of the applicants’ alleged problem with the Malaysian interpreter at the hearing before the Tribunal.

7. The first applicant also asserted that the Tribunal member was in a bad mood, as was the interpreter. There was no evidence to support either allegation. The Tribunal’s reasons and annexure A are inconsistent with the assertion that the Tribunal did other than approach the review with an open mind reasonably capable of persuasion as to the merits. Exploring with the applicants the issues of credibility and/or repeating questions and/or the adverse findings are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

8. The first applicant also asserted from the bar table that the Tribunal member indicated at one stage that if the applicants walked out the door, the Tribunal could make a decision at any time. No evidence has been adduced to support that proposition. The Court does not accept that there was any such indication. It would be correct that the Tribunal could proceed to make a decision of the applicant to walk out the door. It is apparent from the Tribunal’s reasons that the Tribunal did raise whether the applicants wished to both be present during the evidence of the other. Even if such a proposition had been raised it would be irrelevant error. The conduct is not such that a reasonably informed layperson might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

9. Nothing said by the applicants identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. The First and the Second Respondents did not take all the relevant information and document into consideration, the applicants have not been given the chance to provide more document in relation to their claim of protection visa.

   2. The First respondent and the second respondent did not treat the applicants fairly, there were many personal assumptions involved in the assessment, for example: in the decision letter from the second respondent, paragraph 16:" the Tribunal finds the applicants may face low levels of discrimination only and do not accept that there is a real chance they will face serious harm education and political opportunity." It was underestimated the risk which the applicants will face when they return to their country.

   3. It is obvious bias against the applicants, the First and the Second Respondents did not investigate the claim made by the applicants, and they have focused on the statement submitted by the applicants. The real harm has not been reviewed by them.

   4. The Second respondent has stated that in the paragraph 12,:"the tribunal does not accept that the law has prohibited Christianity from being preached in Malaysia or that there is a real chance the second named applicant will be stopped from reading his Malaysian Bible." The second respondent predicted that if the law does not clearly prohibit, the applicant would not been put into the risk, or they would be ok to read the Bible. The risk is existed and the serious consequence will be taken by the applicants regardless the law says or not. The second respondent should look into this matter and find out the fact in Malaysia.

Ground 1

1. In relation to ground 1, there is no relevant information or relevant document that has been identified by the applicants that was not taken into consideration by the Tribunal. Further, it is apparent from the invitation letter sent to the applicants that the applicants were on notice that the Tribunal was unable to make a favourable decision on the information alone.

2. The letter inviting the applicants to attend the hearing also invited the applicants to bring any further material they wished to submit in support of their claims. Under s 5AAA of the Act, it is for the applicants to provide sufficient evidence to establish their claim. It is clear from the Tribunal’s reasons and Annexure A that the Tribunal did raise with the applicants whether they wanted an opportunity to put on further information and that that opportunity was declined. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, there is an assertion that the applicants were not treated fairly. The adverse findings by the Tribunal in respect of complementary protection was open on the material before the Tribunal. The adverse finding was supported by country information and is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. The applicants’ disagreement with the adverse finding and assessment of the risk is otherwise an invitation to this Court to engage in merits review.

2. It is a matter for the Tribunal to determine what weight to give country information. On the face of the material before the Court, the applicants had a real and meaningful hearing before the Tribunal and the adverse findings made by the Tribunal were open for the reasons given by the Tribunal as summarised above.

3. The disagreement with the Tribunal’s findings in respect of the criteria under the Refugees Convention and/or in relation to complementary protection does not identify any jurisdictional error. On the face of the Tribunal’s reasons, including the attachment that sets out the relevant law, the Tribunal correctly identified the relevant law. There is no basis to find that the Tribunal failed to properly apply or misunderstood the relevant law. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, this is an allegation of bias. For reasons already given, there is no evidence to support the allegation for bias, be it apprehended or actual bias.

2. Further, there is no obligation upon the Tribunal to investigate the applicants’ claims, given the obligation under s 5AAA of the Act. There has not been identified any material fact that was easily ascertainable from an identified source in respect of the applicants’ claims. There is no duty in these circumstances upon the Tribunal to investigate the applicants’ claims. The assertion that the Tribunal would not consider the applicants’ claims is inconsistent with the face of the Tribunal’s reasons. The reference to real harm is an invitation to engage in impermissible merits review. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, it is apparent that the applicants disagree with the adverse finding by the Tribunal in relation to Malaysian country information and that the law does not prohibit Christianity from being preached in Malaysia or that there is a real chance that the second applicant will be stopped from reading his Malaysian bible.

2. The adverse findings in this regard were open to the Tribunal for the reasons given by the Tribunal as summarised above. To the extent that the ground asserts that the Tribunal should have conducted a further investigation for the reasons already given by reference to s 5AAA of the Act, it was for the applicants to provide sufficient evidence to establish their claims. Further, this is not a case where there has been identified any easily ascertainable source in respect of a material fact that could give rise to a duty to investigate. The disagreement with the assessment of risk by the Tribunal is an invitation to engage in impermissible merits review. No jurisdictional error is made out by ground 4.

3. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 31 October 2019 and the parties were provided sealed copies of the Court’s orders.

Associate:

Date: 28 November 2019