AJN16 v Minister for Immigration

[2017] FCCA 2061

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJN16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2061

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection (Class XA) visa – where Applicant seeks merits review – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Cases cited:

Minister for Immigration and Citizenship v MZXPA [2008] FCA 185
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22

Applicant: AJN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 315 of 2016

Judgment of: Judge Hartnett

Hearing date: 14 August 2017

Delivered at: Melbourne

Delivered on: 14 August 2017

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Mr Cunynghame

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 315 of 2016

AJN16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. By application filed on 19 February 2016, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 4 February 2016, which affirmed a decision of a delegate of the First Respondent (‘the Delegate’) not to grant to him a Protection (Class XA) visa (‘the visa’). 

2. The grounds of the application are as follows:-

   “1. The member of the Tribunal failed to consider the provided reports on the situation I am facing in Malaysia.

   2. The member of Tribunal, against all the information I told them also the evidence I have submitted to them.

   3. The member of Tribunal not taken seriously about my claim, even I told him my father-in-law has passed away on 16 Nov 2015 even I can’t attend the funeral due my harmness at Malaysia.

   (errors in original).”

3. The First Respondent seeks dismissal of the proceedings and costs.

Background

1. On 1 March 2014, the Applicant, a citizen of Malaysia, arrived in Australia as a holder of an electronic travel authority visa.  On 30 April 2014, the Applicant applied for the visa.

2. On 18 November 2014, a Delegate of the Minister refused to grant the Applicant the visa.  On 7 December 2014, the Applicant applied to the Tribunal for a review of the Delegate’s decision. Attached to the review application was a submission by the Applicant, a police report, and photos supporting the Applicant’s claims to have been robbed.

3. On 14 December 2015, the Tribunal wrote to the Applicant to invite him to attend a hearing before it. On 21 January 2016, the Applicant attended the Tribunal hearing without the assistance of an interpreter or representative.

4. The Applicant made the following claims with his application as set out in paragraph 19 of the Statement of Decision and Reasons (‘the Decision Record’):-

   “He borrowed 100,000 Malaysian Ringgit from his wife’s brother to support his brother’s business.  His brother disappeared.  The applicant ended up repaying the money.  His brother in law started threatening him to pay or else divorce his wife.  He refused to help. He and his wife tried to run away, the applicant made it to Australia, his wife is with a cousin. He was scared that if he made a police report his brother in law will injure him and force his wife to divorce him. They took his car and bike. He fears his wife’s brother, friends and their gangs. They are powerful and have contacts with the authorities and gangs. If he had reported this to the police they would have harmed him. The applicant came to Australia in March 2014.”

5. The Applicant provided an untranslated police report dated 13 June 2014 in support of a further claim that his house had been broken into as a consequence of the loan issue. He provided photos to the Department of Immigration and Border Protection (‘the Department’) of clothes spilt out, open drawers, and a broken doorhandle/lock, as described by the Tribunal in paragraph 20 of the Decision Record.

6. The Applicant also claimed that his father-in-law was friendly to him and tried to help him.  He claimed his father-in-law had been hit by a car and suspected that this may have been because the father-in-law had tried to help him.  The Applicant also claimed that his father-in-law approached an influential gang leader to help him, and provided to the Tribunal at the hearing a news report that this gang leader was later killed.

7. Also provided at the Tribunal hearing, were photographs and the death certificate of the Applicant’s father-in-law, who passed away in November 2015 due to myocardial infarction.  The photos were of bruising and scrapes to the Applicant’s father-in-law after being hit by a car while riding a bicycle.

The Tribunal Decision

1. The Tribunal noted it had put to the Applicant that it did not appear any of the claims related to a Convention ground. The Applicant had nothing to say in response. The Tribunal found that, on the evidence before it, the Applicant did not disclose any ground as defined under the Refugee Convention, and therefore concluded it was not satisfied the Applicant was a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’). The Tribunal proceeded to consider the Applicant’s claims under the complementary protection criteria.

2. The Applicant claimed at the Tribunal hearing that his brother-in-law had a partner in his business whom the Applicant identified as a person who had significant political connections who could use those connections to find the Applicant through his identity card throughout Malaysia.  The Tribunal was concerned the Applicant only raised the claim that his brother-in-law had a business partner with significant political connections at the Tribunal hearing.  It considered the Applicant would have raised this aspect of his claim before the Tribunal hearing if the business partner, in fact, existed.  It found the Applicant concocted the business partner in order to explain the deficiencies in his overall claims.  It found the Applicant’s brother-in-law did not use political friends or gangs to threaten the Applicant.

3. The Tribunal also found the Applicant’s claim that his father-in-law approached a significant gang leader to help him was a concoction.  The Tribunal noted the Applicant could not address the Tribunal’s concern as to how the gang leader’s death had any relevance to his circumstances, given he was killed at a place which was a significant distance from his home region and given he was killed six months after the Applicant left for Australia.

4. The Tribunal considered the Applicant’s claim that this person was involved in the Applicant’s case to be “a concoction and not a true claim”.[1]  The Tribunal said at paragraph 41 of the Decision Record:-

   “The Tribunal does not accept that there is any political or gang involvement in this matter. The Tribunal considers that the applicant has contrived this claim to seek to strengthen his arguments to remain in Australia.  The Tribunal finds that the applicant does not face a real risk of significant harm due to any political or gang issues in Malaysia.”

   [1] Decision Record dated 4 February 2016 at paragraph [40].

5. The Tribunal did not accept that the Applicant was assaulted at his home, or that he had his car and bike stolen in relation to money owed. Further, the Tribunal noted the Applicant’s contradictory evidence and said at paragraph 44 of the Decision Record:-

   “Given the discrepancies of the applicant’s evidence in this regard, the concern with the applicant’s willingness to fabricate evidence and the implausibility of the inaction of the police, the Tribunal does not accept this event of November 2013 occurred and that it is a contrivance of the applicant.  The Tribunal does not accept that the applicant was beaten or had his bike and car taken.”

6. The Tribunal did not accept that the Applicant’s home was broken into.  It said, at paragraphs 45 to 47 of the Decision Record, the following:-

   “…45.  The Tribunal has considered the issue of the break-in at the family home. The applicant provided photos of disturbed furniture and strewn personal belongings and a broken door.  Actual damage to the property is limited, the door being the only significant item.  The applicant claimed that it was a break in to try to find the applicant.  The applicant stated that his wife went to the police and informed them that her brother has caused the break-in.  The applicant then claimed that the police then called his brother-in-law and spoke to him and then chose not to put his name in the report. 

   46. The Tribunal again expressed its significant concern regarding this evidence.  The Tribunal expressed its significant concern that prior to the drafting of the police report the police would call the person who had been named as the suspect by his wife, and choose not to include his name in the report at all.  The Tribunal stated that it did not believe that the police would draft the report in this way.  The Tribunal stated that the police may choose not to pursue the applicant’s brother-in-law in relation to the alleged crime, as they went about their inquiries, but that it found it very difficult to accept that the police would contact the alleged perpetrator at the time it was first being recorded.  The Tribunal considers this implausible.

   47.  The Tribunal further expressed its concern that the break in was related to the applicant.  He had been out of the country for 3 months, and the person who he feared was his brother-in-law, who could have known about his departure.  His brother-in-law could have at the least, asked his sister as to the applicant’s whereabouts without seeking to break into the place where she was residing.  The Tribunal considers that the claim that the break-in occurred to find information about the applicant to be false.  The Tribunal considers that there may have been a break in at the home of the applicant, as per the photographs, but that it was not related to the applicant’s circumstances, but is more plausibly a random criminal act.” 

7. The Tribunal expressed concern the Applicant was unable to provide any record relating to the loan. The Tribunal found it was not plausible that all of the financial transactions were based on cash cheque or cash, as claimed by the Applicant. The Tribunal also found it was curious that the brother-in-law would first demand the repayment of the money and then demand that the Applicant divorce his wife. This did not seem consistent with the brother-in-law being willing to provide the loan without collateral in the first place. Further, the Tribunal did not accept that the Applicant’s wife’s family was opposed to their marriage in circumstances where they were willing to provide the loan as well as make the payments for him.

8. The Tribunal did not accept that the financial dispute led to any threats or harm against the Applicant. It did not accept there was a demand for the Applicant and his wife to separate. It found the Applicant did not have a real risk of significant harm from his brother-in-law, friends or gangs of the brother-in-law. 

9. The Tribunal noted that, as stated in paragraph 61 of the Decision Record, the Applicant’s wife has joined the Applicant in Australia. The Applicant stated she had arrived first in November 2014. She returned to Malaysia and then came back to Australia. She went back to Malaysia in February 2015 because her father was sick. She returned to Australia in April 2015 and in May or June 2015, lodged her own protection visa application. As the Applicant had already had his application determined by the Department by that stage, she could not be included in the Applicant’s application. She did not attend the Tribunal hearing to give evidence.

10. The Tribunal asked if the Applicant’s wife had any claims of her own.  The Applicant stated she was relying on his circumstances as to why she could not return to Malaysia. Given the evidence of the Applicant, the Tribunal did not consider that the Applicant’s wife’s circumstances gave rise to any protection claims for the Applicant.

11. The Tribunal found the Applicant did not meet the criteria for the visa under ss.36(2)(a) and 36(2)(aa) of the Act and affirmed the decision under review.

Consideration

Ground 1

1. The Tribunal clearly considered the material put before it by the Applicant which included the police report provided in support of his claim of a break-in at his family home and the news reports he provided to the Tribunal regarding the killing of a gang member. 

2. The difficulty for the Applicant is that the Tribunal found on the evidence before it that the Applicant was not credible. The factual findings made by the Tribunal in respect of the claims of the Applicant and the material put before it by the Applicant were findings reasonably open to the Tribunal on the material before it.

3. It is not for this Court to engage in a merits review in these circumstances. 

Ground 2

1. The Applicant’s ground does nothing more than ask the Court to undertake a review of the merits of the Tribunal decision and its assessment of the Applicant’s claims. 

2. As submitted by the First Respondent, the Tribunal was entitled to test the veracity of the Applicant’s claims for protection by questioning him at the hearing and was not required to uncritically accept those claims.[2] The Tribunal was ultimately not satisfied that the Applicant’s claims disclosed a Convention nexus or that he faced a real risk of significant harm based on identified, and supported by the evidence, credibility concerns. 

   [2] Minister for Immigration and Citizenship v MZXPA [2008] FCA 185, 14 per Sundberg J; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22, 596.

Ground 3

1. It is not apparent on the face of the Decision Record that the Applicant claimed he could not return to Malaysia to attend his father-in-law’s funeral on account of facing harm. 

2. In any event, the Tribunal comprehensively dealt with the Applicant’s claim to fear harm upon returning to Malaysia. It did not accept that the Applicant would be harmed as a result of financial issues surrounding the brother-in-law’s loan, nor that the Applicant and his wife were unable to return to Malaysia because of family issues. 

3. The Tribunal did consider that the Applicant claimed his wife would not return to Malaysia because her brother would be at the funeral.

4. The Tribunal decision was comprehensive in its consideration of the Applicant’s claims. The Tribunal put matters to the Applicant, with which it had difficulty, and invited his response. Each of the findings it made, were open to the Tribunal on the evidence before it.

5. None of those findings were illogical or unreasonable and nowhere in the Tribunal decision could there be described an element of jurisdictional error. The application will be dismissed and costs shall follow that event.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  30 August 2017