AKZ17 v Minister for Immigration and ANOR and ALA17 v Minister for Immigration and ANOR

[2020] FCCA 160

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKZ17 v MINISTER FOR IMMIGRATION & ANOR and ALA17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 160

Catchwords:

MIGRATION – Malaysian children – father alleges gang violence directed towards him and his family – whether the Tribunal erred in considering the claims before it.

Legislation:

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

Cases cited:

SZMDS [2010] HCA 16

Applicant: AKZ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 219 of 2017

Applicant: ALA17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 221 of 2017

Judgment of: Judge McNab

Hearing date: 11 October 2019

Date of Last Submission: 11 October 2019

Delivered at: Melbourne

Delivered on: 31 January 2020

REPRESENTATION

The Applicants appearing in person

Counsel for the Respondent in proceedings MLG219/2017 and proceedings MLG221/2017: Ms Ward

Solicitors for the Respondents in proceedings MLG219/2017 and proceedings MLG221/2017: Sparke Helmore Lawyers

ORDERS

1. The application filed 2 February 2019 in MLG219/2017 be dismissed.

2. The application filed 2 February 2019 in MLG221/2017 be dismissed.

3. The First and Second Applicants pay the costs of the First Respondents fixed in the sum of $5,000 in the application filed 2 February 2019 in MLG219/2017.

4. The First and Second Applicants pay the costs of the First Respondents fixed in the sum of $5,000 in the application filed 2 February 2019 in MLG221/2017.

5. The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 219 of 2017

AKZ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

MLG 221 of 2017

ALA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. These matters arise by applications made on 2 February 2019 by AKZ17 (‘the First Applicant’) and ALA17 (‘the Second Applicant’) (collectively, ‘the Applicants’). The Applicants are brothers, and AKZ17 is the elder of the two.

2. The Applicants seek judicial review of two decisions of the Administrative Appeals Tribunal (‘Tribunal’) both of which are dated 10 January 2017. By those decisions, the Tribunal affirmed decisions of a delegate (‘Delegate’) of the First Respondent (‘Minister’) not to grant Protection (Class XA) (Subclass 866) visas (‘a Protection Visa’).

Background

1. The Applicants’ parents (‘the parents’) arrived in Australia in March 2012. The father of the Applicants (‘the father’) applied for a protection visa in March 2013 after his wife (‘the mother’) had arrived. The parents’ visa application was refused on 15 October 2013.[1]

   [1] Court Book, 134.

2. The father and mother have subsequently had three children whilst in Australia. At the time of the Tribunal hearing, there were two children (AKZ17 and ALA17).

3. On 30 January 2014, AKZ17 applied for a Protection Visa.

4. On 10 July 2015, the father made a Statutory Declaration in support of AKZ17’s application, setting out his claims.

5. On 18 August 2015, the Delegate refused to grant a Protection Visa for AKZ17.

6. On 24 October 2016, ALA17 applied for a Protection Visa.

7. On 15 November 2016, the Delegate refused to grant a Protection Visa for ALA17.

8. AKZ17’s matter progressed in the manner as summarised in the Minister’s outline of submission:

   7 On 25 August 2015, [AKZ17] made an application for review of the delegate’s decision to the Tribunal.

   8 On 27 September 2016, the Tribunal wrote to [AKZ17] inviting him to attend a hearing on 14 October 2016 to give evidence and present arguments.

   9 On 3 October 2016, [AKZ17’s] representative requested that the hearing be postponed and the hearing was rescheduled to 14 November 2016.

   10 On 11 November 2016, [AKZ17’s] representative provided further documents in support, including written submissions and a further Statutory Declaration from [AKZ17’s] father in which he confirmed that [AKZ17’s] uncle had been executed on 25 March 2016.

   11 On 14 November 2016, [AKZ17] attended a hearing before the Tribunal with his parents and his representative. [AKZ17’s] parents gave evidence on his behalf and were assisted by an interpreter in the Tamil language. An untranslated version of the uncle’s death certificate was provided to the Tribunal.

   (citations omitted)

9. On 23 November 2016, ALA17 lodged his own application for a review of the Delegate’s decision to the Tribunal. On that day, the Applicants’ representatives advised the Tribunal that ALA17 had sought review of a Delegate’s decision to refuse to grant a Protection Visa and requested that the matters be heard concurrently. The applications for review were joined and dealt with together by the Tribunal as each decision relies on the same factual submissions which were made to the Tribunal.

10. On 5 December 2016, the Tribunal invited ALA17 to attend the hearing on 22 December 2016.

11. On 16 December 2016, the Applicants’ representatives provided written submissions and stated that their clients (being AKZ17 and ALA17):

    have instructed that they wish to rely on all evidence provided in relation to their son, [AZK17] at his hearing on 14 November [2016]. They do not have anything further to add outside of what is included in our attached submissions. As such, we do not require the hearing on 22 December [2016].

12. On 10 January 2017, the Tribunal affirmed the Delegate’s decision not to grant the Visa. The Tribunal issued separate decisions in both matters, though these decisions are substantively the same.

13. The Court, similarly, heard both matters at the same time as both claims arise from the same factual material (their father’s fear of harm arising from a gang) and contained the same grounds of review. Further, the Applicants were both represented by their parents at the hearing.

Claims of the parties

1. The Applicants’ claims for protection were based upon claims made by their parents, which were set out in the father’s statutory declaration dated 10 July 2015.

2. The father’s claims were, in summary, that he feared harm from an unknown gang on account of an incident involving his brother (the Applicants’ uncle (‘the uncle’)) in August 2005, where the uncle was provoked which resulted in the uncle killing a gang leader. The father claims that the gang members wish to avenge the death of their leader by killing the father and punishing the rest of the family.

3. The father’s statutory declaration says that the uncle, after an investigation, was found guilty of murder. It is said that the uncle appealed this decision to a ‘higher district court, to the national Court of Appeal, then the Federal Court and to the Sultan of the State seeking clemency’.[2] These avenues of appeal were not successful, and the uncle was executed in 2016.

   [2] Administrative Tribunal’s Decision, ALA17, dated 10 January 2017, [12].

4. The father alleged that he had been the subject of attacks by the gang in August 2010 and another in 2011 where he was slashed with a sword.

Tribunal decision

1. On 10 January 2017, the Tribunal affirmed both decisions on review. The Tribunal noted that there was no evidence before it that either of the Applicants had ever left Australia, and proceeded to assess the Applicants’ claims against Malaysia as the country of reference, being the parents’ country of former habitual residence.[3]

   [3] Administrative Tribunal’s Decision, AKZ17, dated 10 January 2017, [22].

2. The Tribunal accepted that the uncle was involved in a melee with a gang that led to the gang leader being killed, that the uncle was convicted of murder, and the death sentence was carried out in March 2016.[4]

   [4] Administrative Tribunal’s Decision, AKZ17, dated 10 January 2017, [24]; Administrative Tribunal’s Decision, ALA17, dated 10 January 2017, [12].

3. The Tribunal also accepted that another brother of the father had been killed in a car accident, although the Tribunal did not accept that this death was as a result of foul play or anything to do with the gang’s retribution against his family.[5]

   [5] Administrative Tribunal’s Decision, AKZ17, dated 10 January 2017, [16]; Administrative Tribunal’s Decision, ALA17, dated 10 January 2017, [14].

4. The Tribunal also accepted that the father had received anonymous phone calls in 2010 from a gang member warning him not to appeal the Court’s decision, threatening him harm if he did so.[6]

   [6] Administrative Tribunal’s Decision, AKZ17, dated 10 January 2017, [27]; Administrative Tribunal’s Decision, ALA17, dated 10 January 2017, [15].

5. At [28] of the Tribunal’s decision record in AKZ17 (and [16] for ALA17), the Tribunal referred to claims that the father had been confronted by a group of 20 or so people and attacked by approximately six people in August 2010. The father made claims that, following that attack, he was taken into custody under section 117 of the Malaysian Criminal Code and detained for a week while an investigation was undertaken into that attack. The father claimed that more would have been done by the police were he Malayan, and also claimed that the detention was a message that he should not pursue the uncle’s case any further. The Tribunal accepted that the father was attacked in 2010, but was not satisfied that the police’s decision to detain him was somehow influenced by the gang. The Tribunal did accept that there was a substantial likelihood that the father was attacked by a gang as a warning against appealing the uncles’ case, but did not accept that members of the gang had any influence on the police’s decision to detain him.

6. The Tribunal referred to country information as a basis for finding that it was not satisfied that the police’s decision to detain him was influenced by the gang. The Tribunal also accepted that the father was chased by a gang on motorbikes in relation to his brother’s case.[7]

   [7] Administrative Tribunal’s Decision, AKZ17, dated 10 January 2017, [29]; Administrative Tribunal’s Decision, ALA17, dated 10 January 2017, [17].

7. The Tribunal did not accept that the attack that allegedly occurred in July 2011 was related to the uncle’s case or that a gang would have deferred retribution for nine months following a phone call threatening the entire male lineage of the family.[8] The Tribunal did not accept that the applicant’s father would be the subject of a blood vendetta.

   [8] Administrative Tribunal’s Decision, AKZ17, dated 10 January 2017, [30]; Administrative Tribunal’s Decision, ALA17, dated 10 January 2017, [18].

8. At [42]-[43] of the Tribunal’s decision record in AKZ17 (and [30]-[31] for ALA17), the Tribunal stated:

   As noted earlier, for the fear that the applicant holds to be sustained a series of events would need to occur, each of which has been considered above. In considering the likelihood of them occurring consecutively I have considered both the circumstance of the applicant being targeted for familial reasons as well as under the circumstance of having become an 'adversary to the gang' in the father's own right. The difference being that the latter consideration requires a shorter sequence of events as it does not require an assumption that the death of Gunasegar would have annulled any threat. I have found the chance of each of the elements to be remote or non-existent whereas for the threat to be real it would require them all to occur sequentially. Such an outcome is even unlikelier as the probabilities reduce with each additional component to the sequence. As such I find that because the applicant's father does not face a real chance of serious harm or a real risk of significant harm then the applicant does not face a real chance of serious harm in the reasonably foreseeable future nor a real risk of significant harm as a necessary and foreseeable consequence of returning to Malaysia.

   43. As I have found that the applicant's father does not face a real chance of serious harm or a real risk of significant harm then it follows that the claim that the applicant faces an inability to subsist were his father severely harmed to no longer remain an issue. Similarly, that the applicant would not be able to access adequate protection from the state as claimed because of his ethnicity and religion is no longer pertinent.

9. The Tribunal concluded that because the father does not face a real risk of serious harm or a real risk of significant harm, then it follows that the Applicants’ claims to face an inability to subsist if their father is severely harmed is no longer an issue.[9]

   [9] Administrative Tribunal’s Decision, AKZ17, dated 10 January 2017, [43]; Administrative Tribunal’s Decision, ALA17, dated 10 January 2017, [31].

10. The father’s claims were numerous and were set out in written submissions filed with the Tribunal prior to the hearing. It is apparent that the Tribunal considered each of the claims made in relation to the father and the father’s risk of harm. The Tribunal considered that it was unlikely or remote that the gang would pursue the father. The Tribunal found that the chance that the gang would actively monitor the father through the Malaysian government identity card system to be remote and also considered that the chance of the gang pursuing a vendetta through generations to be remote.[10]

    [10] Administrative Tribunal’s Decision, AKZ17, dated 10 January 2017, [39]-[40]; Administrative Tribunal’s Decision, ALA17, dated 10 January 2017, [27]-[28].

11. The Tribunal found that the applicant did not satisfy the criteria set out in paragraph 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth).

Grounds of review

1. On 2 February 2017, the Applicants lodged their applications and accompanying affidavits in the Federal Circuit Court seeking review of the Tribunal’s decision. The grounds of review in each proceeding were:

   (1) The decision of the Tribunal:

   (a) is affected by error of law; and

   (b) denied the applicant procedural fairness.

   (2) I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

The hearing

1. The Applicants appeared before the Court represented by their parents. In circumstances where there was no one other than the parents to look after them, I gave each parent the opportunity to address the Court.

2. The father addressed the Court first, whilst the mother looked after the Applicants outside Court. The father referred the Court to the fact that, in his application, he said that he had been cut on his arms and legs. He stated that he showed the Tribunal member the cuts on his arms, and, while doing so, he showed the Court wound marks on his arms. He also re-stated that the uncle had been in prison.

3. His submission was to the effect that, ‘if somebody has a vengeance, they will always have a vengeance. If they are going to do something to me, they will do it to my children’. Otherwise, he made submissions about more recent events involving returnees to Malaysia, The father also raised issues in relation to the treatment of Indian and Tamil people in Malaysia. He stated that if the Applicants were to return to Malaysia, they would be treated as inferior citizens and their identity card would identify them as second-class citizens.

4. The mother also addressed the Court and raised issues in relation to the father’s injuries and otherwise related to the Court her concerns in relation to reprisals from the gang and the treatment of Tamils in Malaysia and the affect this would have on the family.

5. No particular claims were made by the Applicants in the written submissions that were filed in relation to the Applicants’ status upon their return to Malaysia as to whether they would be accorded citizenship.

Consideration

1. This is not a straight forward case given the circumstances where the Tribunal has found that the applicants’ father was subject to attacks by criminal gangs as a result of actions of the uncle. The applicants’ father bore the scars of those attacks which were found to have occurred in 2010 (see [16] of ALA17’s Tribunal’s decision record). Given that the Applicants are not represented, notwithstanding that the grounds of review are unparticularised, I have read the decision closely and considered the submissions for the purpose of discerning whether there is a ground for review.

2. There is an example in the fact finding of the Tribunal that reasonable minds could differ on. At [18] to [24] of ALA17’s Tribunal decision record, the finding that an attack on the father by a gang wielding swords in July 2011 was not related to the uncle’s case (notwithstanding that no other explanation was raised for the attack and that the attack occurred during the appeal process relating to the uncle) is open to question. However, it is not a decision that no reasonable decision-maker could make and the Tribunal explains its reasons for making this finding. See SZMDS [2010] HCA 16 [130]-[131]. Further, that finding is subsumed in the other findings of fact and is not dispositive of the matter.

3. Central to the Tribunal’s finding is that fact that the uncle was hanged in March 2016 at the end of an appeal process and that the violence directed towards the father was directed at preventing an appeal being lodged. The Tribunal noted at [26] of ALA17’s decision record that there was no evidence that intergenerational vendettas appeared to be a feature of Malaysian gang culture.

4. The Tribunal’s findings in relation to a risk arising from an ongoing vendetta must be read as a whole. For instance, the findings in relation to risks of reprisal against the children, the Tribunal’s reasons set out at [30] of the decision record (extracted above at [27]) must be read with paragraphs [22] and following of the decision record. The Tribunal has engaged with the claims and has made findings that were reasonably open to it.

5. The Tribunal in each decision identified the applicant’s claims in relation to the gang pursuing a vendetta against the father and then against the applicants. The Tribunal also considered claims of institutionalised discrimination directed to non-Malay persons at [32] of the Tribunal’s decision record. The Tribunal (at [32] of the decision record) made reference to Department of Foreign Affairs and Trade country information that pertains to discrimination of non-Malay persons which states that:

   DFAT assess that while Indian Malaysians generally have a lower socio-economic position than bumiputera or Chinese Malaysians, they generally do not experience discrimination or violence on a day-to-day basis. However, they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service.

   The Tribunal also noted that that the applicants were not claiming to face harm related to their ethnicity ‘other than what is related to [their] uncle’s case’. The Tribunal thereby concluded that the applicants would not face discrimination that amounts to persecution in the form of serious harm.

6. The Tribunal addressed the question of whether the Applicants would face a real chance of serious harm in the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of returning to Malaysia.[11] The decisions of the Tribunal in each of the matters shows that the Tribunal has considered each of the claims made by the Applicants and dealt with those claims in a comprehensive and clear way. There is no apparent illogicality or unreasonable thinking in the manner that the Tribunal has approached its task. At the hearing, I was at pains to try to explain to the Applicants’ parents that the Court was not in a position to substitute its own decision for the decision of the Tribunal or to make findings of fact.

   [11] Administrative Tribunal’s Decision, AKZ17, dated 10 January 2017, [42]; Administrative Tribunal’s Decision, ALA17, dated 10 January 2017, [30].

1. In my view, there is no jurisdictional error apparent in the manner in which the Tribunal considered the claims, whether in relation to the claims to fear harm on account of gangs wanting to avenge the death of their leader, in relation to institutionalised discrimination or otherwise.

2. Therefore, the Court is of the view that the applications in each of the cases must be dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 31 January 2020