ASS16 v Minister for Immigration

[2020] FCCA 1271

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASS16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1271

Catchwords:
MIGRATION – Protection (class XA) Protection (subclass 866) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal misapplied test – whether the Tribunal did not properly consider claims – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476.

Cases cited:

Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 64 FCR 151; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1

Applicant: ASS16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 723 of 2016

Judgment of: Judge C. E. Kirton QC

Hearing date: 28 August 2018

Date of Last Submission: 28 August 2018

Delivered at: Melbourne

Delivered on: 27 May 2020

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Spake Helmore Lawyers

Second Respondent: Submitting appearance save as to costs

ORDERS

1. The name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The Applicant’s application filed on 11 April 2016 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 723 of 2016

ASS16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 11 April 2016, the Applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal), dated 16 March 2016.  The Tribunal affirmed a decision of a delegate (Delegate) of the then Minister for Immigration and Border Protection (Minister) to not grant the Applicant a Protection (class XA) Protection (subclass 866) visa (Visa).

2. The Applicant seeks judicial review of the Tribunal’s decision pursuant to s.476 of the Migration Act 1958 (Cth) (Act).  The Court has considered the judicial review application, the Court Book numbering 102 pages, an outline of submissions filed by the Minster on 13 August 2018 (Minister’s Submissions) and the transcript of the hearing that took place before the Court.

Background

1. The Applicant is a citizen of Malaysia.  She arrived in Australia on a travel visa on 15 May 2013[1].  Upon the expiry of that visa on 16 August 2013, she became an unlawful non-citizen until she applied for the Visa on 7 April 2015[2].  In her Visa application, the Applicant made the following claims for protection[3]:

   a)There is no racial harmony in the Applicant’s home village and she has always felt insecure.  Security is a problem in the area she lives.

   b)The Applicant is a Roman Catholic.

   c)Religion and race are still barriers in Malaysia.  The Applicant fears “religious suppression” and racial discrimination if she returns to Malaysia.

   d)The Applicant was in a relationship with a Muslim boyfriend.  The boyfriend’s family did not accept her because she is not a Muslim, and when she stayed with them they treated her as a slave and used bad language against her.  She was tortured and humiliated.  The family pressured her to follow Islam however she refused to do so.  The family asked the Applicant to leave their son, and called her a prostitute.

   e)If she returns to Malaysia, the Applicant will be ostracised and pressured to convert to Islam by Muslim fundamentalists.  The Malaysian authorities will not protect her and will refuse to help her because she is not Muslim.

   [1] Court Book (CB) 52.

   [2] CB 1-31 and 52.

   [3] CB 30-31.

2. On 1 September 2015, the Delegate refused to grant the Applicant the Visa[4] (Delegate’s Decision).  The Delegate was not satisfied that the Applicant met the criterion to be granted the Visa.

   [4] CB 48-59.

3. On 2 September 2015, the Applicant sought review of the Delegate’s Decision at the Tribunal[5].  The Applicant attended a hearing before the Tribunal on 16 March 2016[6].  On the same date, the Tribunal made a decision affirming the Delegate’s decision to not grant the Applicant the Visa[7] (Tribunal’s Decision).

   [5] CB 60-61.

   [6] CB 77-80.

   [7] CB 83-93.

Tribunal’s Decision

1. The Tribunal’s Decision is at Court Book pages 83 to 93.  The Minister’s Submissions (at [10]-[14]) accurately summarise the Tribunal’s Decision.  The Court adopts those submissions, with some alterations, as follows.

2. After detailing the background of the application for review[8], the Tribunal summarised in detail the criterion for a protection visa[9]. The Tribunal then summarised the Applicant’s claims[10] and the findings of the Delegate[11].

   [8] CB 84, at [1]-[2].

   [9] CB 84-85, at [3]-[8].

   [10] CB 85, at [9]-[10].

   [11] CB 85-86, at [11]-[15].

3. Having accepted that the Applicant was a citizen of Malaysia[12] and that there was nothing to suggest that the Applicant could enter or reside in a third country[13], the Tribunal provided an overview of the principles applicable to the assessment of an Applicant’s credibility[14].

   [12] CB 86, at [16].

   [13] CB 86, at [17].

   [14] CB 86, at [18]-[23].

4. The Tribunal then detailed the evidence that the Applicant had provided at the hearing[15].  The Tribunal noted the Applicant’s responses to questions the Tribunal had asked and her account of her claims.

   [15] CB 87-88, at [24]-[29].

5. The Tribunal did not accept that the Applicant would face serious or significant harm because of her past relationship with a Muslim man, or that anyone would seek to force her to convert to Islam or that she would be harmed because of Islam itself[16].  The Tribunal noted that the relationship was over, the Applicant had never been in trouble with any religious authorities at the time of the relationship, that the Applicant had accepted that the religious laws did not apply to her as she was not a Muslim and that Islamic fundamentalists were not going to harm her now that the relationship was over.

   [16] CB 88, at [30]-[32].

6. Having regard to the Applicant’s evidence in relation to her fear of harm because of her religion and ethnic group[17], and country information concerning Malaysian Christians[18], the Tribunal found that the Applicant would be able to practice her religion without limitation in Malaysia and that she did not face a real chance of serious harm or a real risk of significant harm on the basis of her religion[19].

   [17] CB 88, at [33].

   [18] CB 88, at [34].

   [19] CB 88, at [35].

7. On the basis of the Applicant’s evidence about her ethnicity[20] and country information on this topic[21], the Tribunal found that the Applicant would not be harmed, mistreated or discriminated against because of her ethnicity and found that she would not face a real chance of serious harm or a real risk of significant harm for that reason[22].

   [20] CB 89, at [36] and [38].

   [21] CB 89, at [37].

   [22] CB 89, at [39].

8. Noting that the Applicant did not claim at hearing to have suffered any issues arising from the security situation in her home area (rather her evidence was to the contrary), the Tribunal did not consider any claim on this basis was made out[23].  Having regard to the Applicant’s evidence that she was able to work in Malaysia, while the Tribunal commended the Applicant for wanting to provide for her family, it found that she would be able to do so again and would not face destitution that could be described as serious or significant harm on return to Malaysia, nor would she be unable to earn an income[24].

   [23] CB 89, at [40].

   [24] CB 89, at [41]-[42].

9. In light of its antecedent findings, the Tribunal was not satisfied that the Applicant was a person whom Australia owed protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act[25]. The Tribunal affirmed the decision not to grant the Applicant the Visa.

   [25] CB 90, at [43]-[44].

Judicial Review Application

1. In her application to this Court the Applicant raised two grounds of review:

   1. The Refugee Review Tribunal erred in making speculative decision on the real chance of the review applicant being mistreated due to her ethnicity, not muslim and her behaviour toward muslim.

   2. The member has failed to properly consider the chance of being persecuted when the review applicant return to her country of birth.

2. In an affidavit sworn by the Applicant on 11 April 2020, she states as follows:

   I am seeking court proceeding because the AAT made wrong decision on my case.

3. Despite an opportunity to file further documents in support of her application, nothing was filed by the Applicant.

4. At the hearing on 28 August 2018, the Applicant appeared without legal representation.  A Malay interpreter was available to assist the Applicant at the hearing.  The Applicant indicated that she would only require the interpreter if she felt she did not understand.  The Applicant made no submissions to the Court in relation to her judicial review application.  Her only statement was that she was studying at the time of the hearing and hoped this could be taken into account.

Consideration

Ground 1

1. Ground 1 appears to suggest that the Tribunal erred in its application of the real chance test when determining if the Applicant would be harmed on return to Malaysia for the reasons that she claimed.  The Applicant refers to the Tribunal making a “speculative decision”.

2. The Tribunal did not make a “speculative decision”. The Tribunal made a detailed and analytical decision that took into account the Applicant’s claims, her evidence and the country information to make rational, reasonable and logical findings.  There is nothing in the Tribunal’s decision to suggest that it speculated, or had any doubt in, the findings that it made or the basis of those findings.

3. It is apparent that the Tribunal addressed each of the Applicant’s claims and when considered in light of the Applicant’s own evidence and the country information, the Tribunal was not satisfied that there was a real chance of harm.  For example, when finding that the Applicant did not face a real chance of harm arising from her previous relationship with a Muslim man and her attitude toward Islam, the Tribunal referred to the Applicant’s own evidence that the relationship was over and that she would no longer be harmed by Islamic fundamentalists in light of this.  In considering the Applicant’s claims about her religion, the Tribunal relied on the country information and the Applicant’s evidence that she had not been inhibited form practising her religion in the past.

4. Hence, the Tribunal’s decision was not based on speculation, rather, it was based on facts and materials, most of which were from the Applicant herself.

5. As to any suggestion that the Tribunal erred in the application of the real chance test, the Court disagrees.  A fair reading of the Tribunal’s decision indicates that the Tribunal was satisfied there was no reasonable degree of likelihood, a real and substantial risk or reasonable possibility of the Applicant facing any harm.  The Tribunal referred to the Applicant giving evidence that she had previously not faced any difficulty practising her religion or living working and studying in her area without concern.  It is well-recognised that a consideration of what has occurred in the past is relevant to the assessment of whether there is a chance of something occurring in the future[26].

   [26] Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 64 FCR 151; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481, at 574-575; Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510; (1999) 73 ALJR 584; (1999) 162 ALR 1; (1999) 55 ALD 1, at [82] (Abebe)

6. There is no error in the Tribunal’s application of the “real chance” test, its assessment of the Applicant’s claims or the nature of the Tribunal’s decision generally.

7. Ground 1 is dismissed.

Ground 2

1. Ground 2 is an allegation that the Tribunal failed to properly consider the Applicant’s claims for protection.  The Court does not accept that the Tribunal failed to properly consider the Applicant’s chance of harm on return to Malaysia.

2. First, the Tribunal accurately identified each of the Applicant’s claims for protection.  Further, notwithstanding that the Applicant did not provide any specific evidence or submissions on certain claims (such as the security situation in her area), the Tribunal nevertheless considered this.  It is also the case that while the Applicant never advanced such a claim, on the basis of the Applicant’s evidence to the Tribunal it considered the Applicant’s ability to obtain employment and earn an income and whether this could amount to serious or significant harm.

3. Second, the Tribunal referred to country information that was specific to the Applicant’s claims.  In particular, it quoted country information in relation to Christianity in Malaysia and the Applicant’s ethnic group.

4. Third, the Tribunal referred in great detail to the evidence that the Applicant had provided in the hearing and it is apparent that it properly engaged with this in circumstances where it addressed an additional claim that arose from the evidence (namely, the Applicant’s ability to obtain employment and financial support for her family).  In making its findings, the Tribunal referred to, and assessed the chance of harm in light of the Applicant’s evidence on the particular claims.

5. It is apparent that the Tribunal properly considered each of the Applicant’s claims.  Its reasons actively engaged with the Applicant’s evidence and the country information to make findings that were formed on a reasonable basis.  There is nothing that the Court can identify that was not “properly considered”.

6. Ground 2 is dismissed.

Applicant’s Affidavit

1. The Applicant’s affidavit makes a bald assertion that the Tribunal’s decision was wrong.  Without any assistance from the Applicant about why the decision was “wrong”, at its highest this can simply be taken as the Applicant expressing disagreement with the outcome.

2. Disagreement with the Tribunal’s decision does not establish jurisdictional error[27].

   [27] Abebe, at [53]-[54].

3. Accordingly, Ground 3 is dismissed.

Conclusion

1. The Applicant’s judicial review application has failed to identify any jurisdictional error in the Tribunal’s decision.

2. The application must be dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC

Associate: 

Date: 27 May 2020