ALR16 v Minister for Immigration

[2018] FCCA 1368

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALR16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1368

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – oral application for an adjournment of the court hearing – application refused – claim that the applicant is a Malaysian homosexual – whether the Tribunal made a jurisdictional error.

Legislation:
Migration Act 1958, ss.424AA, 424A
Penal Code, ss.377A, 377B (Malaysia)

Cases cited:
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; (2003) 78 ALD 8; (2003) 203 ALR 112; (2003) 78 ALJR 180; [2003] HCA 71

Applicant: ALR16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 405 of 2016

Judgment of: Judge Riley

Hearing date: 1 May 2018

Date of last submission: 1 May 2018

Delivered at: Melbourne

Delivered on: 1 May 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent:	Melanie Montalban
Counsel for the second respondent:	No appearance

Solicitors for the respondents: DLA Piper Australia

ORDERS

1. The oral application for an adjournment be refused.

2. The application filed on 3 March 2016 be dismissed.

3. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,130.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 405 of 2016

ALR16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)[1]

The applicant’s oral application for an adjournment

[1]     Reasons for judgment were given orally on 1 May 2018. The applicant filed notice of appeal on 18 May 2018. The registry advised chambers on 22 May 2018 that the applicant had filed a notice of appeal. Chambers ordered a transcript of the reasons for judgment on 22 May 2018. Auscript provided the transcript of the reasons for judgment on 23 May 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on Monday 28 May 2018.

1. This is an oral application for an adjournment of a hearing in a protection visa matter.  The Minister for Immigration and Border Protection (“the Minister”) provided to the court an email sent to the applicant from Victoria Legal Aid (“VLA”) indicating that the applicant first engaged their assistance on 25 February 2016.  That was about a week before the application to this court was filed on 3 March 2016.  The email from VLA indicated that the lawyer at VLA contacted the applicant on 23 March 2018 to discuss his case and to obtain updated proof of means information from him.

2. The email said that the over two year delay at VLA was the result of staffing and resource constraints.  The email advised that the applicant did not meet the VLA means test and VLA had closed its file. The email also said that, in a letter delivered to him by hand on 26 March 2018, VLA referred the applicant to a private firm of solicitors. 

3. The applicant said that he attended the firm and was told that he would need to provide them with $9,000 to cover their fees.  He told the court today that he is employed and, after tax, earns $450 per week. He said he is paying about $200 per week in rent.  He said that he could save $100 per week and that he already had $3,000 in the bank. To pay for the private lawyer, the applicant would need to save $6,000.  At $100 per week, that would take 60 weeks, which is approximately 14 months of saving at a rate of $100 per week. 

4. The applicant told the court that he rang VLA about a year ago to check on the progress of his application and was told to wait patiently.  It seems that the applicant did not contact VLA again until late March this year.  The applicant said that he had contacted the Salvation Army, who said they could only provide advice and not representation, but advised him to contact the Asylum Seeker Resource Centre (“the ASRC”).  The applicant told the court that the ASRC declined to provide him with any assistance. 

5. The Minister opposed the application for an adjournment.  The Minister said that 14 months is too long for an adjournment in this case.  The Minister said that the applicant could have done more in the last two years to obtain legal representation. In particular, the Minister said that, after the applicant rang VLA about a year ago, the applicant could have contacted them again to try and obtain assistance. 

6. The matter was listed for hearing today by a notice of listing dated 14 October 2016. Therefore, the applicant had about 18 months to organise legal assistance, not to mention the seven months between the filing of the application and the date of the notice of listing.

7. I accept that, to a large extent, the applicant took appropriate steps to obtain legal assistance.  He promptly lodged an application with VLA.  The administrative delays at VLA in processing the applicant’s application were not the applicant’s fault.  He told the court that he failed the means test because he had savings of $3,000. 

8. It seems to me that adjourning the matter for 14 months to obtain legal assistance is excessive, even taking account of the fact that there are long delays in this court in migration matters in any event. The applicant could have done somewhat more to follow up with VLA when he received the hearing date on 14 October 2016.  That would have been an opportune time to contact VLA and seek to progress his matter, although I accept that VLA told him to wait patiently.  The applicant was perhaps a little too patient, given that the matter was listed for hearing today.

9. All in all, I do not consider that it would be appropriate to grant an adjournment in the circumstances of this case.  The prospects of the applicant saving enough money on his relatively limited income are perhaps not quite as rosy as the applicant submitted.  But, even if he were able to save the necessary amount of money, it seems to me that adjourning the matter for at least 14 months is not in the interests of the administration of justice.  Therefore, the application for an adjournment will be refused. 

The applicant’s substantive application

1. This is an application to review a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The applicant applied for a protection visa on 14 November 2013.  A delegate of the Minister refused to grant the protection visa on 9 October 2014.  The applicant then applied for review by the Tribunal.  The Tribunal made a decision dated 10 February 2016, which affirmed the delegate’s decision. 

2. The applicant is a male citizen of Malaysia.  He first came to Australia on 25 April 2003.  At that point, he held an electronic travel authority visitor visa. He was here for five days and then returned to Malaysia.  The applicant again travelled to Australia on 30 November 2011 on an electronic travel authority visitor visa. 

3. The applicant, about three months later, lodged an application for a student visa.  That application was lodged on 24 February 2012.  The application for the student visa was refused on 4 April 2012.  About 19 months later, the applicant applied for the protection visa that is the subject of this review.  The protection visa application was made on 14 November 2013.

4. In the applicant’s protection visa application, he claimed that he is a homosexual citizen of Malaysia.  He said that his family and friends in Malaysia were not aware of his sexuality.  However, he said that people had queried his sexual orientation because he had never been married and had never had girlfriends.  He said that he left Malaysia to avoid persecution.  He said that homosexuals in Malaysia are discriminated against and the Malaysian government and society are generally intolerant of homosexuals.

5. The applicant attended an interview before the delegate.  The delegate considered that the applicant was evasive and untruthful in relation to his travel history.  The delegate noted that the applicant told the delegate that he had lived in the United Kingdom for five months in 2010 on a tourist visa. However, the delegate noted a Five Country Conference (“FCC”) report which indicated that the applicant had been refused entry into the United Kingdom in 2009 at the airport, detained for a few days and then returned to Malaysia. The applicant also told the delegate that he had not applied for any other kind of visa for the United Kingdom. However, the delegate noted that the FCC report indicated that the applicant had applied for a United Kingdom partner visa in 2011, which appears to have been withdrawn.

6. The delegate noted that the applicant conceded that he first became aware of his sexual identity at the age of 23 and that he first came to Australia in 2003 when he was 34 years old.  The delegate considered that the applicant’s travel to Australia, Singapore, Europe and the United Kingdom created some doubt about the immediacy and gravity of the applicant’s claimed fears in Malaysia.  The delegate was also particularly mindful that the applicant did not seek protection until almost two years after his most recent arrival in Australia.

7. The delegate noted that s.377A and s.377B of the Malaysian Penal Code criminalise what is described as carnal intercourse against the order of nature, but that homosexuality in itself was not illegal in Malaysia.  The delegate noted a United States Department of State report to the effect that s.377A and s.377B of the Malaysian Penal Code had only been enforced seven times in the last 70 years, and on four of those occasions the alleged offender was Anwar Ibrahim.

8. The delegate did not accept that homosexuals would be the subject of persecution in Malaysia, or that the applicant had well-founded fear of persecution for reasons of his membership of a particular social group consisting of homosexual men in Malaysia. 

9. The Tribunal also had some concerns about the applicant’s credibility, particularly in relation to his account of his travel prior to coming to Australia.  The Tribunal particularly noted that the applicant said that he had never lodged a visa to remain in the United Kingdom.  However, the Tribunal reminded the applicant that he had indicated that he had applied for a de facto partner visa in the United Kingdom in 2011.  The applicant then conceded to the Tribunal that he had applied for a United Kingdom partner visa in 2011.  The applicant also conceded to the Tribunal that he had paid some money to a person called Andrew for his visa application in the United Kingdom.  The Tribunal considered that that circumstance raised concerns about the applicant’s honesty in relation to his migration dealings.

10. The Tribunal noted that the applicant called a witness who said in his statutory declaration that his relationship with the applicant would be described as intimate. However, the witness told the Tribunal that they were just friends.  The Tribunal concluded that the applicant and the witness were not in an ongoing relationship. 

11. The Tribunal also noted that the applicant withdrew his review application to the Tribunal regarding a student visa application in October 2013.  The Tribunal noted that the applicant’s letter to the Tribunal at that time said that he was not able to study due to being blocked from my study intention.  He also said that he decided to return home to fix his personal affairs before deciding whether to return to study or not.

12. The Tribunal noted that the applicant, in fact, did not return to Malaysia but instead applied for a protection visa.  The Tribunal noted that the applicant had stated in the letter withdrawing his student visa review application that he intended to return to Malaysia, notwithstanding that he now claims to fear harm because of his sexual identity.  The applicant told the Tribunal that he had not drafted that letter, that it had been drafted by the migration agent and that the applicant was not aware of its contents.  However, the Tribunal noted that the applicant had signed the letter. The Tribunal did not accept that the applicant had not prepared it himself.

13. The Tribunal was concerned about the delay in the applicant lodging his protection visa application.  The Tribunal noted that the application was not lodged for two years after the applicant’s arrival in Australia.  The Tribunal discussed various items of country information with the applicant during the Tribunal hearing.  The Tribunal noted the information the delegate had recorded to the effect that there were only seven recorded instances in the past 70 years of the application of s.377A and s.377B of the Malaysian Penal Code and four of those incidents were in regard to Anwar Ibrahim.

14. The Tribunal discussed with the applicant at the hearing that the application of the Malaysian Penal Code against homosexuals appeared to be for political purposes rather than as a matter of ordinary course.  The Tribunal noted information from the Department of Foreign Affairs and Trade that LGBTI individuals, particularly Muslims, in Malaysia face a moderate risk of official discrimination on a day-to-day basis.  The Tribunal also noted that many middle and upper class, educated and urban Malaysians are open about their sexuality within their family and community circles, but that many LGBTI individuals, particularly Muslims, continued to hide their identity to avoid harassment.

15. The Tribunal cited country information from May 2012 consisting of the Gay Star News, which said that a retired secondary school teacher in Malaysia reported that LGBTI people are becoming more open.  The Tribunal noted that the Hindustan Times in February 2012 reported that the gay and lesbian community in Malaysia was slowly gaining a higher profile and transsexuals live openly in cities, though many said they continue to live in fear of persecution, especially amid a perceived growing Islamisation of the country.  The Tribunal noted a website that advised homosexuals in regard to travelling around Asia indicated that Malaysia had a thriving gay scene (perhaps Southeast Asia’s most exciting) and there was a general live-and-let-live attitude amongst the people. The website went on to say that:

    Malaysia is thriving under the fresh air of tolerance and democracy. Straight-owned venues openly cultivate custom from the gay community, while homosexual entrepreneurs launch trendy businesses and mini-utopias of their own. 

    The Tribunal noted that the website provided details about gay-friendly sites in Sandakan, which is the applicant’s home city.  It named various venues, which were said to be meeting places for gay local and foreign people.

16. The Tribunal distinguished between those people in Malaysia who are Muslims and who are perhaps subject to Sharia law and those such as the applicant, who is a Chinese Buddhist, who are not subject to the same restrictions.  The Tribunal considered that there are some anti-homosexual attitudes in Malaysia but the Tribunal did not accept that the difficulties the applicant would face would amount to serious or significant harm.

17. The Tribunal specifically noted that the applicant had not led an openly gay life in Australia but had only come out to close friends.  The Tribunal considered that the applicant is a private person who has remained private in Australia, even where the risks of being openly gay are not great.  The Tribunal considered that the applicant would probably continue, on return to Malaysia, to be a private and not openly gay person.  However, the Tribunal considered that, even if the applicant were more open, the applicant would not face serious or significant harm. The Tribunal, on that basis, affirmed the delegate’s decision. 

18. The application to this court filed on 3 Match 2016 lists the following grounds: 

    1. The decision of the Tribunal:

    (a)is affected by an error of law; and

    (b)denied the applicant procedural fairness. 

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

19. The point about VLA is not a ground of review. 

20. In relation to the alleged error of law, the applicant was not able to articulate what the error of law was.  The Minister submitted that there was no error of law in this case.  In particular, the Minister said that this case was distinguishable from Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; (2003) 78 ALD 8; (2003) 203 ALR 112; (2003) 78 ALJR 180; [2003] HCA 71. The Minister submitted, accurately, that the Tribunal had found that the applicant, by his nature, would choose to conduct himself in a private manner and that this was a choice that was not influenced by a fear of harm if the applicant did not live discreetly. That is, there was no suggestion that the applicant would live discreetly for reasons of fear. The Tribunal noted that the applicant had lived discreetly in Australia where the risk of harm from being openly gay is not great.

21. The Tribunal, however, separately and additionally, concluded that the applicant could live openly in Malaysia as a homosexual without facing a real chance of serious or significant harm. The Tribunal based that conclusion on country information.  In the light of that country information, the Tribunal concluded that, while homosexual Muslims in Malaysia may face difficulties, they would not affect the applicant as a Chinese Buddhist living in Malaysia.  The Tribunal particularly noted that s.377A and s.377B of Malaysian Penal Code have only been enforced seven times in the last 70 years and on four of those occasions the defendant was Anwar Ibrahim. It seems to me that there was not an error of law in this case of the Appellant S395/2002 type.  I have been unable to detect any other basis upon which it could be said that there was an error of law in this case. 

22. In relation to procedural fairness, the Tribunal’s decision was largely consistent with the delegate’s decision.  As such, the applicant was on notice about the critical issues on which the decision would turn. 

23. The Tribunal’s reasons for decision set out the various matters that it discussed with the applicant during the course of the hearing. Some of those matters did not need to be discussed pursuant to s.424A of the Migration Act 1958 (“the Act”), as they arose from country information. However, the Tribunal discussed them anyway. The Tribunal also discussed with the applicant information under s.424AA of the Act.

24. I have been unable to detect any denial of procedural fairness in this matter. The applicant was afforded the opportunity to have a hearing before the Tribunal. He was able to call a witness of his choosing who the Tribunal interviewed.  There seems to be no basis upon which it could be said that there was a denial of procedural fairness in this case.

25. The applicant, in oral submissions, to a large extent, challenged the merits of the Tribunal’s decision.  He asked rhetorically, How can I go out in the open?  However, that is something that the Tribunal dealt with.  The Tribunal considered that the applicant, as a Christian Buddhist in Malaysia, would be able to be openly homosexual.  The applicant also asked rhetorically, Who can guarantee my safety?  The Refugees Convention does not provide guarantees of safety.  It only seeks to protect people from a real risk of persecution. Similarly, the complementary protection regime protects against real risks of significant harm. It does not guarantee that a person will suffer no harm. The Tribunal correctly considered the relevant tests and came to conclusions that were open to it.

1. The applicant also referred to information that he had found on the internet about the situation of homosexuals in Malaysia.  However, he conceded to the court that he had not given that information to the Tribunal.  Consequently, there was no jurisdictional error in the Tribunal not taking it into account.  The applicant emphasised that it is illegal to be homosexual in Malaysia.  However, the Tribunal took into account the relevant Malaysian law, and its application, and concluded that the applicant did not face a real chance of persecution or significant harm in Malaysia. 

2. It seems to me that the Tribunal’s conclusions were reasonably open to it.  All in all, I have been unable to discern any error in the Tribunal’s decision or decision-making process.  Consequently, the application filed on 3 March 2016 must be dismissed.  

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:              28 May 2018