ADP18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 433
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ADP18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 433
File number(s): MLG 73 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 26 May 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Protection (subclass 866) visa – where the applicant claims to fear harm from Malaysian money lenders – claims that the Tribunal did not afford procedural fairness – consideration of the meaning of ‘information’ in section 424 of the Migration Act 1958 (Cth) – finding that the Tribunal discharged its procedural fairness obligations under the Act – claims the Tribunal made a finding without supporting evidence and failed to provide supporting evidence – where Tribunal made adverse credibility findings – finding that the Tribunal’s reasoning was comprehensive and conclusions were reasonably open on the evidence before it – further allegation of fraud on the applicant by migration agent – insufficient evidence of fraud where no particulars provided or material filed – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 422B, 424A, 425, 425A Cases cited: Anandaraj Subramaniam v Minister for Immigration and Multicultural Affairs [1998] FCA 305
SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1
WAJS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 240 FCR 261
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of last submission/s: 15 February 2023 Date of hearing: 15 February 2023 Place: Melbourne Counsel for the Applicants: The First Applicant appeared in person on his own behalf and on behalf of the Second Applicant Solicitor for the First Respondent: Ms S Moxey of Sparke Helmore ORDERS
MLG 73 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ADP18
First Applicant
ADQ18
Second ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHief JUDGE MERCURI
DATE OF ORDER:
26 May 2023
THE COURT ORDERS THAT:
1.The applicants’ application filed on 11 January 2018 be dismissed.
2.The applicants pay the first respondent’s costs fixed in the sum of $5,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI
INTRODUCTION
Before the court is an application for judicial review of the decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 21 December 2017. By that decision, the Tribunal affirmed the decision of the delegate of the then Minister for Immigration and Border Protection (‘the Minister’) to refuse the applicants a Protection (subclass 866) visa (‘protection visa’) under section 65 of the Migration Act 1958 (Cth) (‘the Act’).
BACKGROUND
The first and second applicants are citizens of Malaysia.[1] The second applicant is the wife of the first applicant.[2] The applicants’ migration history is set out at page 101 of the court book. Relevantly, the first applicant spent two periods of approximately three months in Australia from October 2009 to April 2010 under an Electronic Travel Authority (‘ETA’), with a brief visit for a number of days to New Zealand in between his time in Australia.[3]
[1] Court book at page 100.
[2] Court book at page 3; Tribunal decision record dated 21 December 2017 at paragraph [29].
[3] Court book at page 101.
On 12 November 2011, the first applicant returned to Australia for a third time under an ETA. The second applicant arrived in Australia in January 2012 on a visitor’s visa.[4] The first applicant’s visa expired on 12 February 2012 and thereafter he remained in Australia without a lawful visa.[5]
[4] Court book at page 45.
[5] Court book at page 101.
Applications for protection visas on 10 June 2015
It was against this background that the first applicant lodged an application for a protection visa on 10 June 2015.[6] The second applicant applied for a protection visa as a member of the first applicant’s family unit.[7] The second applicant has not made any separate claims for protection in her own right.[8]
[6] Court book at pages 2 to 36.
[7] Court book at pages 37 to 61.
[8] Court book at pages 56 to 58.
First applicant’s claims for protection
In his application, the first applicant claims that he left Malaysia, ‘[t]o prevent my family from being harmed and harassed’.[9] He further claims that he had a ‘partner business with my friends who had used the shop get a loan from the loan sharks’, and that creditors came to his shop demanding money after his friend failed to pay the alleged debt.[10]
[9] Court book at page 31.
[10] Court book at page 31.
Upon refusing these loan sharks and denying involvement in any borrowing activity, the applicant claimed to have confronted the debt collectors, following which they took ‘violent means against me … came to my residence and severely harassed and intimidated my family’ and ‘used a car to run down me [sic]’.[11]
[11] Court book at page 31.
The first applicant further claims that his ‘family have been in fear of being harmed’, leading him to close his business and come to Australia to avoid further harm, stating that he will ‘continue to have harm should [he] return to Malaysia’.[12]
[12] Court book at page 31.
The first applicant claims to have contacted the Malaysian police, who he stated ‘treated it as a debt dispute and … did not want to get involved in providing me a protection’.[13]
[13] Court book at page 32.
The first applicant was interviewed by a delegate of the first respondent on 31 August 2016 during which he made further claims as follows:
·in June or July 2010 he opened a café with four partners;
·one of his partners borrowed money at a high rate and the person who borrowed the money then disappeared. As he had not borrowed the money, the applicant told the money lender that it had nothing to do with him and that the person who had borrowed the money had left;
·the money lender caused trouble and there was a fight;
·in early 2011, there was a flood and the business was closed;
·the money lender went to his family home in April 2011 and told his mother that he owed a lot of money, caused some property damage at the applicant’s home and drove a car into the applicant, as a result of which he required hospitalisation;
·the applicant reported this to the police but they said it was a private matter; and
·in October 2011, the applicant withdrew from the business and travelled to Australia.[14]
[14] Court book at page 102.
Relevantly, the delegate, after referring to the first applicant’s evidence about the response he received from the police when he reported some of the incidents involving the loan sharks, says, ‘… This response raises doubt in my mind as to the reliability and accuracy of the applicant’s claims and he was unable to clarify this seemingly contradictory action’.[15]
[15] Court book at page 104.
The delegate also raised concerns about the first applicant’s failure to produce any evidence to support his claims, namely that he was a joint owner of a business, that he reported the loan shark’s conduct to the police, that he had lodged a claim with an insurance company or that he had been hospitalised as claimed.[16]
[16] Court book at page 105.
Moreover, the delegate raised concerns about the first applicant’s delay in making an application for a protection visa. Relevantly, the delegate said:
Furthermore, despite claiming to have fled Malaysia for his own safety in November 2011, I note the applicant did not attempt to seek protection from the Australian government until June 2015 – more than 3 ½ years after his arrival in Australia – at which point the applicant’s ETA had long expired and he had been living and working in Australia as an unlawful non-citizen. This significant delay in seeking protection raises doubts in my mind as to the genuineness of the applicant’s claim to fear serious harm or death from anyone at the time he left Malaysia.
When questioned about the delay the applicant claimed that he did not know about Protection Visas because he kept changing workplaces. I note however, that the applicant previously travelled to Australia for two periods of three months in 2009 and 2010 to learn ‘coffee culture’ and when his first ETA was due to expire he travelled to New Zealand to obtain a second ETA prior to returning to Australia. That he had the wherewithal to understand the requirements of the ETA system and to arrange his overseas travel leads me to believe that had he genuinely feared harm in his home country he would have had the ability to research his visa options for continued stay in Australia in 2011.[17]
[17] Court book at page 105.
Ultimately, on 6 September 2016, the delegate refused the applicants’ protection visa applications.[18]
[18] Court book at pages 96 to 108.
Application for review in the Tribunal on 27 September 2016
On 27 September 2016, the applicants filed an application in the Tribunal for a review of the delegate’s decision.[19] Annexed to that application was a copy of the delegate’s decision.
[19] Court book at pages 109 to 111.
By letter dated 9 November 2017, the applicants were invited to attend a hearing before the Tribunal which was scheduled for 20 December 2017.[20]
[20] Court book at pages 117 to 120.
In the ‘Response to hearing invitation form’, the applicants indicated that they would require the assistance of a Mandarin interpreter and that both applicants would be taking part in the hearing.[21] Notwithstanding this, the second applicant in fact did not attend that hearing.[22] The first applicant was assisted at the Tribunal hearing by an interpreter in the Mandarin and English languages.[23]
[21] Court book at page 122.
[22] Court book at page 125.
[23] Court book at page 125.
On 22 December 2017, the Tribunal affirmed the decision of the delegate to refuse both applicants’ applications for a protection visa.[24]
[24] Court book at page 130.
TRIBUNAL DECISION
The Tribunal’s decision record dated 21 December 2017 is set out at pages 131 to 136 of the court book.
After setting out the criteria for a protection visa, the Tribunal outlined its consideration of the applicants’ claims at paragraphs [10] to [29] of its decision record.
At paragraph [10], the Tribunal outlines the applicant’s claims in his application as follows:
Why did you leave that country?
To prevent my family from being harmed and harassed.
What do you think will happen to you if you return to that country?
I had partner business with my friends who had used the shop to get a loan from the loan sharks. Soon after my friends failed to pay the debt, the creditors came to my shop for demanding the money. I of course refused to make any payment and denied any involvement in the borrowings. I have confronted with the debt collectors who have taken violent means against me. They also came to my residence and severely harassed and intimidated my family. In order to have their money back, they used a car to run down me. My family have been in fear of being harmed. I therefore had to close down the business and came to Australia to avoid further harm I could have had in Malaysia. I will continue to have harm should I return to Malaysia.
Did you experience harm in that country?
Yes. I have been harmed by way of violence, threatening and harassing my family and me.
Did you seek help within the country after the harm?
Yes. I have contacted the police who treated it as debt dispute and they did not want to get involved in providing me a protection.
Did you move, or try to move, to another part of the country to seek safety?
No, the creditors have determined to get their money back. And, I do not have ability to move to somewhere in Malaysia to permanently hide from the creditors pursuit.
Do you think you will be harmed or mistreated if you return to that country?
Yes. My past experience has reflected on that the creditors will take all means to harm me unless I can meet their demand.
Do you think the authorities of that country can and will protect you if you go back?
No. When I was in Malaysia, the authorities did not render a protection to me. I do not think this protection will happen to me when I return from Australia to Malaysia.
Do you think you would be able to relocate within that country?
No. I do not ability to hide away from the creditors within Malaysia. The relocation cannot prevent me from being harmed.
Relevantly, and notwithstanding that the second applicant did not attend the hearing before the Tribunal, the Tribunal inquired as to whether the second applicant had any of her own protection claims. At paragraph [29] of the decision record, the Tribunal noted:
29.At hearing when asked if his wife – the second name applicant – had her own protection claims or was relying upon his, the applicant said he told her about his difficulties and she said she is willing to be on his side and stay in Australia with him. The Tribunal is satisfied that she does not have her own protection claims. …
At paragraph [11], the Tribunal correctly identifies the issues in its review as follows:
(a)whether the first applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in section 5J of the Act; and
(b)if not, whether there are substantial grounds for believing that there is a real risk that he will suffer significant harm as a necessary and reasonable consequence of him being removed from Australia to Malaysia.
At paragraphs [12] to [17], the Tribunal sets out the applicant’s migration history and the further factual background to the matter submitted orally by the applicant at the hearing. Relevantly, at paragraph [18] of the decision record, the Tribunal notes:
18.The applicant said he fears these money lenders on return to Malaysia. He did not take out the loan and the person he suspects did in his name has disappeared. The applicant said he has been working in Australia but has not repaid any of the loan, because it is not his.
At paragraphs [19] to [23], the Tribunal goes on to outline several concerns that it has regarding the first applicant’s credibility. In particular, the Tribunal expressed that:
(a)the first applicant’s oral evidence about his claimed restaurant business and business partners was ‘vague and lacking in details’;
(b)there were inconsistencies between the first applicant’s oral evidence to the Tribunal and written claims in his visa application;
(c)the evidence given by the first applicant outlining details of his and his family’s alleged harassment by money lenders was ‘vague, implausible and muddled’, noting especially that the first applicant was unable to provide dates or sequencing of events and was vague when asked for particular details; and
(d)the first applicant’s oral evidence regarding his attempts at locating the person he suspected had taken out the loan in his name was ‘vague and evasive’.
As was the delegate, the Tribunal was also concerned about the delay in making a protection application.[25] At paragraph [24], the Tribunal notes that in spite of the first applicant claiming to fear serious harm from money lenders in Malaysia from November 2011, he did not seek protection until June 2015. The Tribunal then went on to find that the first applicant’s explanation that he was unaware of the protection visa was an inadequate justification of the delay in applying for asylum, especially given that the first applicant had claimed to have visited Australia between 2009 and 2010 to research cafés in Australia.
[25] Tribunal decision record dated 21 December 2017 at paragraph [24].
The Tribunal referred to the decision of Anandaraj Subramaniam v Minister for Immigration and Multicultural Affairs [1998] FCA 305 (‘Anandaraj Subramaniam’) in which the Federal Court found that the period of time elapsing between an applicant’s arrival in Australia and the time when they claim refugee status was a legitimate matter to take into account when assessing the genuineness and depth of an applicant’s fear of persecution.[26]
[26] Tribunal decision record dated 21 December 2017 at paragraph [24].
At paragraph [25], the Tribunal then expressed serious concerns over the first applicant’s credibility regarding his core claims, including whether had been involved in a restaurant business with others in Malaysia and that he had experienced threats, harm and harassment by money lenders upon his failure to repay an alleged debt taken out by a former business partner named ‘Lee’.
Ultimately, the Tribunal did not accept that the first applicant:
(a)was a partner in a restaurant business in Johor;
(b)worked managing the kitchen of that restaurant,
(c)had a former business partner who took out a loan in his name of RM300,000; or
(d)was threatened, harmed or harassed while he was in Malaysia, , nor were his family members, by money lenders resulting from a failure to pay back such a loan.
At paragraph [26], the Tribunal further did not accept the first applicant would face a real chance of persecution from money lenders or associated persons in light of the several concerns it held over the veracity of the applicant’s claims. The Tribunal therefore concluded that the applicant did not face a well-founded fear of persecution under section 5J(1) of the Act, and is therefore not a refugee within the meaning of section 5H(1) of the Act.
At paragraph [27], the Tribunal also found that the applicant did not satisfy the requirements of section 36(2)(aa) of the Act. The Tribunal did not accept that there were grounds for believing that there was a real risk the applicant would suffer significant harm from money lenders or their associates, as a necessary and foreseeable consequence of being returned to Malaysia.
At paragraph [28], the Tribunal further found that the first applicant did not satisfy the criterion under section 36(2) of the Act on the basis that he was a member of the same family unit as a person satisfying the criteria under section 36(2)(a) or (aa) and who holds a protection visa.
At paragraph [29], the Tribunal also found that it was not satisfied that the second applicant had her own protection claims, and therefore concluded that neither of the applicants were persons in respect of whom Australia had protection obligations.
At paragraph [30], the Tribunal consequently found that the applicants could not be granted protection visas and affirmed the decision of the delegate not to grant a visa to either of the applicants.
PROCEEDINGS IN THIS COURT
On 11 January 2018, the applicants filed an application for judicial review in this court accompanied by an affidavit in support. In that application, the applicant raises four grounds of review.
Despite orders by Registrar Carney made on 17 October 2018 permitting the applicants to do so, they did not file any written submissions or further material upon which they sought to rely at the hearing.
At the hearing before me on 15 February 2023, the first applicant appeared in person assisted by an interpreter in the Mandarin and English languages. The first applicant confirmed that the second applicant would not be attending the hearing and that he would be representing both applicants.
GROUNDS OF REVIEW
I will deal with each of the applicants’ grounds of review in turn.
Ground 1
By ground 1, the applicants assert that the Tribunal failed to afford him procedural fairness. For the reasons below, I do not accept this submission.
Without being critical of the first applicant, who represented himself and the second applicant in these proceedings, no particulars were included in the Initiating Application filed on 11 January 2018, and when asked at hearing if he wished to add anything to this ground, the first applicant stated ‘nothing’.
The Tribunal’s procedural fairness obligations are set out in Part 7 of Division 4 of the Act. Section 422B of the Act provides that Division 4 is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Section 422B further provides that the Tribunal must act in a way that is fair and just.
I accept the submissions made on behalf of the Minister, and find that the procedural fairness requirements under Part 7 of Division 4 of the Act have been satisfied.[27] The applicants were invited to a hearing before the Tribunal by email on 9 November 2017, which the first applicant attended on 20 December 2017.[28]
[27] Minister’s Outline of Submissions filed on 1 February 2023 at paragraph [16].
[28] Court book at page 117 and page 125 and following.
The second applicant did not attend, nor did she seek an adjournment or provide any explanation for her non-attendance. Indeed, as noted, in the response to the invitation to attend a hearing, the applicants indicated that they would both be attending the hearing.[29] In any event, as stated, the second applicant has not made any separate protection claims. Her application relies upon her being a member of a family unit of the first applicant.
[29] Court book at page 122.
Moreover, the first applicant was on notice of the issues before the Tribunal, which were effectively the same as those raised in the delegate’s decision, and which the first applicant annexed to the application for a review filed.
In addition, it is clear from the Tribunal’s questioning during the hearing, summarised in the decision record, that:
(a)the Tribunal was concerned about the applicant’s credibility and the veracity of his claims; and
(b)the first applicant was asked about relevant matters of concern and given an opportunity to respond.
The Tribunal therefore discharged its obligations under sections 425 and 425A of the Act.
In addition, section 424A of the Act requires the Tribunal to give an applicant, in a manner that the Tribunal considers appropriate, ‘clear 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’. However, ‘information’ for the purposes of section 424A(1) does not include information that an applicant provided for the purposes of the review.
The Tribunal’s decision was not based on information other than that provided by the first applicant in writing or orally, or contained in the delegate’s decision, also annexed to the applicant’s review application. There was therefore no ‘information’ that the Tribunal was required to put to the applicant for the purpose of complying with section 424A.
The Tribunal’s assessment of the first applicant’s evidence, as summarised in the decision record, is not information for the purposes of section 424A. In the High Court’s decision of SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said:
15.… Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal’s obligation is limited to the written provision of “particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. What, then, was the “information” that the appellants say the Tribunal should have provided? In their written submissions, the appellants appeared to focus on the requisite “information” as being the “inconsistencies” between their statutory declaration and oral evidence. However, in oral argument they focused on the provision of the relevant passages in the statutory declaration itself, from which the inconsistencies were later said to arise.
…
18.… if the reason why the Tribunal affirmed the decision under review was the Tribunal's disbelief of the appellants' evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants' evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”.
“does not encompass the tribunal's subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.”
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. …
Applying these principles to the present matter, there is no evidence on the face of the Tribunal’s decision record, or otherwise, of a breach of section 424A. The Tribunal’s decision was based on an assessment of the evidence put forward by the applicant himself. There was no ‘information’ other than that which the Tribunal relied upon which led it to reject the applicant’s application.
It is apparent from the Tribunal’s decision that it came to the views it did on the basis of the assessment of the applicant’s evidence, both evidence given in support of the applicant’s application and also oral evidence given in the Tribunal hearing. No breach of section 424A is apparent.
Ground 1 is therefore not made out.
Grounds 2 and 4
By ground 2, the applicants asserts that:
2.The Tribunal made a finding without supporting evidence. Namely, the Tribunal failed to provide the evidences [sic] in support of its findings of that [sic] the applicant’s evidence was vague and evasive at hearing.
Similarly, by ground 4, the applicants assert:
4.The Tribunal failed to provide the evidences that the applicant ‘was a partner in a restaurant business in Johor in the past, or that he worked managing the restaurant kitchen as claimed.’
When invited to make submissions about either of these grounds, the first applicant again stated that he had nothing to add. I understand ground 4 to be a claim that the Tribunal failed to provide evidence upon which it rejected the first applicant’s claim to have been ‘a partner in a restaurant business in Johor in the past, or that he worked managing the restaurant’ as these are the findings made by the Tribunal at paragraph [25] of its decision record.
As stated, the Tribunal correctly identified the issues before it at paragraph [11] of the decision record, namely that it was required to determine:
11.… whether the applicant had a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to her [sic] receiving country of Malaysia, there is a real risk that he will suffer significant harm.
In determining these issues, the Tribunal was required to consider and weigh the evidence put forward by the applicants, and in doing so, was required to resolve any issues of credit, and to consider the probability or improbability of claims that the applicants made. Relevantly at paragraph [25] of its decision record, the Tribunal, after discussing the first applicant’s evidence, concluded that it:
25.… has serious credibility concerns about the applicant’s core claims to have been involved in a restaurant business with others in the past in Malaysia, and to have experienced threats, harm and harassment from money lenders when he failed to repay a debt taken out in his name (unknowingly) by a former business partner called Lee. The Tribunal does not accept the applicant was a partner in a restaurant business in Johor in the past, or that he worked managing the restaurant kitchen as claimed. It follows that the Tribunal does not accept that his former business partner took out a loan in his name of RM300,000. The Tribunal does not accept the applicant’s claims to have been threatened, harmed or harassed by money lenders as a result, nor his family members whilst he was in Malaysia and after he left as claimed.
These findings were dispositive as the Tribunal then went on to say:
26.Given these findings the Tribunal does not accept that if the applicant returns to Malaysia he will face a real chance of persecution from money lenders or anyone associated with them. The Tribunal finds that the applicant does not face a well-founded fear of persecution as per s 5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s 5H(1). …
27.Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant will suffer significant harm from money lenders or their associates. …
The Tribunal’s reasoning in this regard was comprehensive and its conclusions were reasonably open on the evidence before it. In coming to these conclusions, it was open to the Tribunal to have regard to, not only the evidence the first applicant provided, but also the manner in which it was provided.
For example, at paragraph [20], the Tribunal noted that the first applicant’s evidence about the restaurant business he claims to have been involved in was ‘vague and lacking in details’. The Tribunal then went on to expand on this by giving specific examples of the vagueness of the applicant’s evidence.
Similarly, at paragraph [22] the Tribunal observed that the first applicant’s evidence about the harassment that both he and his family were subjected to by the money lenders was also ‘vague, and implausible and muddled at times’. Again, the Tribunal then gave particular examples of this.
Similar observations were made at paragraph [23] about the first applicant’s evidence regarding the steps taken to try and locate Lee, which the Tribunal also found ‘vague and implausible’, again specifically identifying the concerns that the Tribunal had from the evidence given by the first applicant.
The assessments of the first applicant’s evidence by the Tribunal were in all cases open on the material before it. By grounds 2 and 4, the first applicant is effectively expressing his disagreement with the Tribunal’s assessment and inviting the court to engage in impermissible merits review.
I accept the Minister’s submission that adverse credibility findings do not necessarily require the Tribunal to identify positive evidence upon which those findings are made, but rather can, as in this case, be reflective of the Tribunal’s disbelief of the evidence because of surrounding circumstances.[30]
[30] Minister’s Outline of Submissions filed on 1 February 2023 at paragraph [19]; WAJS v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 240 FCR 261 at [17].
As stated, the Tribunal’s overall findings on the applicant’s credibility were therefore reasonably open to it on the material before it and do not disclose any jurisdictional error.
For these reasons, neither ground 2 nor 4 are made out.
Ground 3
By ground 3, the applicants asserts that:
3.The Tribunal erred in applying for the case law [sic]. Namely, the Tribunal erred on its finding based on the presumption that the applicant should know the existence of a protection visa because the applicant has been twice in Australia.
By this ground, the first applicant takes issue with the Tribunal’s conclusion that the delay in making his application for a protection visa was a factor to which it could have regard in concluding that the applicant’s claims were not genuine. In oral submissions, the applicant reiterated that he was not aware of the existence of the protection visa as a justification for his delay in applying for a protection visa upon arrival in Australia in 2011.
As stated, the issue of delay in making a protection visa application was a matter also considered by the delegate. The applicant was on notice by the delegate’s decision that the delegate was concerned about the delay and the reasons given for that delay by the first applicant. When this matter was raised before the delegate, the first applicant provided the same explanation as given to this court, namely that he had not been aware of the ability to apply for a protection visa sooner.
It is also clear from the Tribunal decision record at paragraph [24] that this issue was discussed with the applicant at the Tribunal hearing. It was open to the first applicant to provide more information about the delay, why he had not made an earlier protection visa application, what he had told his representative about the reasons for his move to Australia and any fears that he had about returning to Malaysia and so on. No such further information was provided to the Tribunal, nor indeed was it provided to this court.
Importantly, it is noted that the Tribunal did consider the explanation given by the applicant but concluded that it did not ‘adequately’ explain the delay. It is clear from the use of the word ‘adequately’ that the Tribunal gave some weight to the applicant’s explanation but ultimately was not satisfied that it explained the delay in these circumstances. In coming to this view, the Tribunal also had regard to the fact that the applicant had initially come to Australia between 2009 and 2010 to research cafés.
As noted earlier in these reasons, the Tribunal cited the decision of Justice Carr in Anandaraj Subramaniam. In that decision, Justice Carr said:
First, I shall deal with the credibility issue in respect of which two complaints were made. The first was that the Tribunal had misconstrued Heerey J’s decision in Selvadurai v the Minister for Immigration and Ethnic Affairs (1994) 34 ALD 346 at 349. The applicant complained that the Tribunal drew adverse inferences from the matter of delay, i.e. the delay between the applicant's arrival in Australia on 20 September 1995 and his claim for a protection visa made on the eve of the expiry of his visitor’s visa. In his written submission the applicant contended that the passage of three months is not unreasonable. The question is not whether the passage of three months is not unreasonable. That is something for the Tribunal to assess. The question is whether the Tribunal was entitled to have regard to the delay and to draw an adverse inference from that delay.
The applicant sought to distinguish the decision in Selvadurai on the basis that the delay in that case was 20 months. Obviously each case turns on its own facts. However, as a matter of principle I respectfully agree with Heerey J that the period of time which elapses between an applicant’s arrival in Australia and the time when he or she claims refugee status is a legitimate matter to take into account when assessing the genuineness or at least the depth of an applicant's fear of persecution. I would go further and find that such a delay is a legitimate matter which the Tribunal is entitled to take into account when deciding whether to believe an applicant.
In the present case, the applicant did not make an application for protection for a period of some three and a half years after arriving in Australia. This was a legitimate factor for the Tribunal to have regard to in determining whether or not the applicant had a fear of persecution or indeed the extent to which he felt that fear.
The first applicant was given the opportunity to comment on this matter. He said he was unaware of his right to make such an application. The Tribunal had regard to that explanation but ultimately did not accept it and had regard to the extent of the delay in determining whether the applicant had a well-founded fear of persecution. There is no error in this approach. The weight to be given to the delay and to the applicant’s explanation for the delay were matters for the Tribunal. The ultimate conclusion reached on this issue was reasonably open to the Tribunal and does not give rise to any error on its part.
The Tribunal correctly applied the reasoning of Justice Carr in Anandaraj Subramaniam in taking the applicant’s delay in applying for a protection visa into account when considering that application and the credibility of his claims. Accordingly, the Tribunal did not err in applying the law and no jurisdictional error arises.
Ground 3 is therefore not made out.
OTHER RELEVANT MATTERS
In oral submissions, the first applicant said that he was not aware of the ability to lodge a protection visa. To the extent that this submission relates to ground 3, I have addressed it above in my reasons.
In oral submissions, the Minister stated that to the extent that this submission could be taken as a suggestion that there was fraud on the applicant, any such submission ought be rejected. It is not in dispute that the applicants were represented by a migration agent, both at the delegate stage, and at the Tribunal stage. I note, however, that the applicants’ representative did not appear at the Tribunal hearing.[31]
[31] See Court book at page 125.
The applicants have, as stated, not filed any material in this proceeding pursuant to the orders made by Registrar Carney made on 17 October 2018. There is therefore insufficient evidence to support a finding of there being fraud committed on the applicant. In the absence of any submissions by the applicant on this point, or indeed any evidence of fraud, I accept the Minister’s submissions that there is insufficient evidence for such a finding.
For each of these reasons, no jurisdictional error arises in this matter.
CONCLUSION
I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 26 May 2023
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