Arm17 v Minister for Immigration - [2017] FCCA 1877

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARM17 v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 1877

MIGRATION – Decision by Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Whether time should be extended to applicant to file an application for judicial review – whether applicant’s explanation for delay in filing application satisfactory – whether application for judicial review has sufficient prospects of success such that it would be in the interests of justice to extend time – application for extension of time refused.

Legislation:
Migration Act 1958 (Cth), ss.36, 438, 477

Applicant:

ARM17

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 484 of 2017

Judgment of:

Judge Emmett

Hearing date:

9 August 2017

Date of Last Submission:

9 August 2017

Delivered at:

Sydney

Delivered on:

9 August 2017

REPRESENTATION

Applicant appeared in person with the assistance of a Mandarin interpreter

Solicitor for the Respondents:

Ms Bernadette Rayment

FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT SYDNEY

SYG 484 of 2017

ARM17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application for an extension of time pursuant to s.477 of the Migration Act 1958 (Cth) (“the Act”) to seek judicial review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 1 December 2016. The applicant filed the application for judicial review on 20 February 2017, some 6 and a half weeks after the expiration of the 35 day period after the Tribunal’s decision as required by s477(1) of the Act.
Section 477 of the Act is as follows:
“Time limits on applications to the Federal Circuit Court
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Arm17 v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FCCA 1877
Decision Date: 9 August 2017

CaseChat Overview and Summary

This matter concerned an application for judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The applicant, a Malaysian citizen of Chinese ethnicity, had sought a Protection visa, claiming he feared forced conversion to Islam and harassment by religious officers in Malaysia. The delegate of the Minister refused the visa, and the AAT affirmed that decision. The applicant subsequently sought an extension of time to file an application for judicial review of the AAT's decision.

The primary legal issue before the court was whether to grant the applicant an extension of time to file his application for judicial review. This required the court to consider whether the applicant's explanation for the delay was satisfactory and whether the proposed application had sufficient prospects of success to warrant an extension in the interests of justice.

Emmett J refused the application for an extension of time. His Honour noted that the AAT had carefully considered the applicant's claims, including his account of alleged detention, bribery, and harassment by religious officers. The AAT found the applicant's oral evidence to be lacking in detail, internally inconsistent, and unsupported by documentary evidence. The Tribunal also noted that the applicant could not recall crucial details such as his former girlfriend's full name or the name of a politician who allegedly assisted him. Consequently, the AAT was not satisfied that the applicant's claims were true, nor that there was a real chance of him suffering significant harm upon return to Malaysia. Emmett J found that the AAT's factual findings were open to it and that the court could not review the merits of the decision. Given the AAT's adverse credibility findings and the lack of any arguable error of law identified in the proposed grounds of review, the court concluded that it would not be in the interests of justice to extend the time for filing the application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The background of this matter, the applicant’s claims, the Tribunal proceeding and the Tribunal’s decision are accurately summarised in written submissions of the first respondent as follows:“Background and the applicant’s claims9. The applicant is a citizen of Malaysia of Chinese ethnicity and a Buddhist. The applicant was granted a Tourist visa on 5 January 2016 and arrived in Australia on 15 February 2016 (CB 23). He lodged a Protection visa application (PVA) on 28 April 2016 (CB 1-39) as he feared being forcibly converted to Islam (CB 34). The applicant claimed that his girlfriend, who was Malay and Christian, had her religion wrongly identified as Muslim on her identification card. Whilst on holidays on Pangkor Island, officers from the Islamic Religious Department asked for the applicant’s and his girlfriend’s identity cards and marriage certificate. The applicant told them they were not married and the officers accused his girlfriend of “khalwat”, which was an offence under Islamic law for staying with a man to whom you were not married. They were taken to the Islamic Religious Office and his girlfriend was charged. The applicant was not charged as he was not Muslim. An officer asked the applicant for money to settle the case and they were released after paying a bribe. A week after the incident, two religious officers came to his house and he was detained for a week. A religious teacher tried to brainwash him and forced him to attend Islamic classes each day. The applicant wanted to make a police report but was told that it was an Islamic matter. The applicant felt helpless and fled Malaysia as he feared being forced to convert to Islam. 10. On 31 May 2016, a delegate of the first respondent made a decision refusing to grant the applicant a Protection visa (CB 59-71). The Tribunal’s proceedings11. On 15 June 2016, the applicant lodged with the Tribunal an application for review of the delegate’s decision (CB 72-73). 12. On 12 September 2016, the Tribunal wrote to the applicant inviting him to a case conference. On 21 October 2016, the Tribunal invited the applicant to attend a hearing before it scheduled on 2 December 2016 (CB 83-84). The hearing was rescheduled to 1 December 2016 (CB 92-93) and the applicant attended (CB 94-96).The applicant provided copies of pages of his passport at the hearing (CB 98-101).13. On 16 July 2007, the Tribunal wrote to the applicant confirming receipt of his letter of 5 July 2007 and notified him that a decision would be handed down on 24 July 2007 (CB 84).The Tribunal’s decision14. In its decision dated 1 December 2016, the Tribunal affirmed the decision under review (CB 104-115). 15. At the hearing the applicant told the Tribunal that he was no longer in a relationship with his former girlfriend and was unable to remember her full name or provide any evidence of their relationship such as photographs, emails or phone records (CB 107, [21]-[22]). The Tribunal discussed the night that religious officers allegedly detained him as well as the second detention and provided the applicant with an opportunity to respond to its questions (CB 107-108, [23]-[28]). The Tribunal also questioned the applicant about when and how he obtained his passport (CB 108, [29]). 16. The Tribunal noted that the applicant did not leave Malaysia for almost two months after his passport was issued. In response to the Tribunal’s questions about this delay, the applicant claimed that he was seeking help from religious groups in order to sue the religious department. The applicant claimed he approached a local politician whose name he could not recall, who assisted him with filing a lawsuit against the religious department but the case “was prevented” as there was insufficient evidence (CB 109, [31]). The applicant was not able to produce any documents in relation to the court application as he claimed he had discarded them (CB 109, [32]). The applicant also claimed that he was continually harassed by the religious department who told him he had to join their religion or pay money (CB 109, [33]). When asked why he had not mentioned these claims earlier, the applicant responded he was fearful at the time he lodged his PVA and so forgot to mention some details (CB 109, [34]). 17. The Tribunal discussed relevant country information with the applicant that indicated freedom of religion was guaranteed under the Malaysian Constitution and that Sharia law only applied to Muslims. As the applicant was no longer in a relationship with his girlfriend, the Tribunal found there would not be a real chance risk of the applicant being harmed, particularly if he returned to a different part of Malaysia (CB 109, [36]).18. The Tribunal had regard to the applicant’s claim that corruption was prevalent in Malaysia and that the religious officials were corrupt and simply trying to get money out of him (CB 110, [37]). The Tribunal relied on the 2016 DFAT Country Report for Malaysia that indicated Sharia-based law only applied to Muslims but its enforcement sometimes affected non-Muslims, particularly on matters of religious conversion and that despite guaranteed freedom of religion under the Constitution, civil courts had ruled they had no power to intervene in apostasy cases. It also had regard to a US Department of State Report on Religious Freedom for Malaysia in 2015 that indicated those who “differed from the official interpretation of Islam” continued to face adverse government action including mandatory rehabilitation and that State Islamic religious enforcement officers had the authority to accompany police on raids and to enforce Sharia law (CB 111, [41]).19. The Tribunal was not satisfied that the applicant provided truthful evidence regarding his past experiences or his reasons for leaving Malaysia. Specifically, the Tribunal found his oral description of his detention on Pangkor Island and subsequent detention, was brief and lacking in detail and that on several occasions the applicant failed to respond to the Tribunal’s specific questions and instead simply restated information set out in his written statement. It also found it unusual that the applicant could not recall his girlfriend’s full name or the name of the hotel in which they stayed on Pangkor Island or the name of the politician who assisted him. For these reasons, the Tribunal concluded that the applicant was repeating the contents of a memorised statement rather than talking about his actual personal experiences (CB 111, [43]).20. The Tribunal found the applicant’s oral evidence was unsupported by any documentary evidence and that it was unusual that after being in a relationship with his former girlfriend for almost a year, the applicant was not able to provide any documentary evidence of their relationship or evidence of their travel to Pangkor Island, his hotel stay, detention or the court proceedings which followed. The Tribunal also found his claim that he disposed of such evidence because of the painful memories was inconsistent with his attempts to seek justice through the court system and lodging his PVA in Australia (CB 111, [44]). 21. The Tribunal also found aspects of the applicant's evidence were internally inconsistent. For example, his evidence in relation to whether he applied for a passport before or after his week-long detention was confused and conflicting (CB 111, [45]). It also noted that the applicant raised for the first time highly significant claims in the course of his oral evidence. The Tribunal noted these claims were only made after it expressed concerns about the applicant's two-month delay in leaving Malaysia (CB 112, [46]). The applicant could not explain the anomalies in his evidence and while the Tribunal accepted that the “tenor of the applicant’s claim” was generally consistent with country information. The Tribunal was not satisfied that any of the applicant’s claims were true, including that: he was in a relationship with a Malay woman whose identity card listed her as Muslim; the applicant and/or his girlfriend were detained by religious enforcement officers in either Pangkor Island or on return; the applicant was asked for bribes by enforcement officers; the applicant sought assistance to commence legal proceedings; or he was harassed by the religious department in Malaysia (CB 112, [47]-[48]). 22. Accordingly, the Tribunal was not satisfied that there was a real chance or risk of the applicant being forced to convert to Islam, being forced to pay bribes, harassed or suffering from any other form of serious or significant harm arising from his claimed experiences (CB 112, [48]-[49]) and concluded that he did not meet the refugee criterion in s 36(2)(a) of the Act (CB 112, [50]-[51]).23. Having rejected the entirety of the applicant’s claims, the Tribunal was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a real risk that he would suffer significant harm (CB 112, [51]).24. The Tribunal’s factual findings were open to it for the reasons that it gave and the Court cannot review the merits of the decision. The Tribunal was under no obligation to uncritically accept any and all allegations made by the applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437). Also, given its credibility concerns it was entitled to rely upon the applicant’s lack of corroborative evidence. This is not a case where the Tribunal erroneously required the applicant to corroborate his claims before they could be accepted (see SZSHU v Minister for Immigration & Anor [2013] FCCA 2258; cf., Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041).”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.