Atr17 v Minister for Immigration

[2020] FCCA 709

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATR17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 709

Catchwords:
MIGRATION – Persecution – review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Migration Act 1958, ss.36, 375A, 474

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZQFR v Minister for Immigration & Citizenship [2013] FCA 574
NABE v Minister for Immigration & Indigenous Affairs (No.2) (2004) 144 FCR 1
Minister for Immigration & Border Protection v Singh (2016) 244 FCR 30
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Applicant: ATR17

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 534 of 2017

Judgment of: Judge Cameron

Hearing date: 10 March 2020

Date of Last Submission: 10 March 2020

Delivered at: Sydney

Delivered on: 30 March 2020

REPRESENTATION

The applicant appeared in person

Solicitor for the Respondents: Ms K Evans of Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 534 of 2017

ATR17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Malaysia.  On 20 March 2015 her father lodged an application for a protection visa with what is now the Department of Home Affairs (“Department”).  The applicant, her siblings and her mother were included in that application as members of the one family unit and made no claims of their own.  The applicant’s father alleged that he feared persecution in Malaysia because of his political opinion.

2. On 27 April 2016 the applicant’s father’s application was refused by a delegate of the first respondent (“Minister”).  The applicant’s father then applied to the Administrative Appeals Tribunal (“Tribunal”) for a review of that departmental decision.  The applicant then made her own individual claims to the Tribunal in which she alleged that she feared harm in Malaysia in the form of sexual molestation and that if she returned there she might do something to harm herself because she had suffered mental health issues as a result of past molestation. 

3. Both the applicant and her father were unsuccessful before the Tribunal and the applicant has applied to this Court for judicial review of the Tribunal’s decision in her case.

4. In this judicial review proceeding the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

5. For the reasons which follow, the application will be dismissed.

BACKGROUND FACTS

1. The facts alleged in support of the applicant’s claim for a protection visa were summarised by the Minister in his written submissions as follows:

   The applicant, a citizen of Malaysia, was included as a member of the family unit on her father’s protection visa application lodged on 20 March 201. The applicant initially relied solely on her father’s protection claims but subsequently also advanced claims of her own.

   The protection claims of the applicant’s father, upon which the applicant relied before the delegate, can be summarised as follows:

   (a)He was a Malaysian citizen and supporter of the opposition leader Anwar Ibrahim.

   (b)He was involved in “the youth Islamic organisation” and when Ibrahim was sacked in 1998, he protested in the streets. The ruling government ordered the authorities to arrest whoever supported Ibrahim and subject them to caning and torture.

   (c)He was involved in politics and expressed support for Ibrahim.

   (d)In 1996, he and his wife opened a restaurant. The restaurant was eventually destroyed by the authorities because he supported Ibrahim and had pamphlets in the restaurant in support of Ibrahim.

   (e)The police came in search of him in 2001, so he fled to New Zealand. In 2002, he travelled to Australia briefly before returning to Malaysia where he was arrested by the police.

   (f)He had been arrested and subjected to torture. Each time, he was released and warned to stay away from politics. He was severely tortured, starved and kept in a dark room until he agreed to stop supporting Ibrahim.

   (g)In 2007, he fled to the UK when the police came to his house looking for him and beat his wife and children.

   (h)If he returned to Malaysia, he would be arrested at the airport and charged for supporting Ibrahim.

   On 27 April 2016, the delegate refused to grant the protection visas. On 12 May 2016, the applicant’s father applied to the Tribunal for review of the delegate’s decision. On 8 December 2016, the applicant and her father appeared before the Tribunal with the assistance of a Malay interpreter to give evidence and present arguments.

   On 21 December 2016, the Tribunal sent a letter to the applicant’s father, inviting him to comment on information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. The applicant’s father provided a response to the letter on 2 January 2017 and the applicant provided an additional, undated statement advancing her own protection claims for the first time with respect to her experiences of sexual assault.

   The applicant elaborated on her protection claims at the hearing as follows:

   (a)She had been sexually assaulted by friends, teachers and her uncle, referring to specific incidents when she was four, six, nine, eleven and twelve years old.

   (b)She had been bullied, both in Australia and upon return to Malaysia in 2003 after being in Australia because she could only speak English.

   (c)She had mental health issues, including anxiety, PTSD, stress and depression, binge eating, anorexia and low self-esteem, and was developing bipolar disorder.

   (d)She did not want to return to Malaysia because of her experiences. She had previously self-harmed.

   (e)She feared her father would be jailed and she would have to support her family.

   …(references omitted)

The Tribunal’s decision and reasons

1. On 1 February 2017 the Tribunal found, in its decision on the claim brought by the applicant’s father, that it was not satisfied that he and the members of his family unit were persons to whom Australia owes protection obligations under s.36(2)(a) or (aa) of the Act.

2. On the same day, in its decision on the applicant’s individual claim, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protections obligations under s.36(2)(a) or (aa) of the Act. The Tribunal’s findings and reasons concerning the applicant were summarised by the Minister in his written submissions in the following terms which I also adopt:

   … Based on his vague, evolving and inconsistent evidence, the Tribunal found that the applicant’s father was not credible. The Tribunal was not satisfied that in September 2014, he feared returning to Malaysia because of his fear of the Malaysian government.

   The Tribunal considered the applicant’s father’s submission that the inconsistencies could be explained by interpreting issues at the interview. However, having listened to the interview, the Tribunal found that the interview flowed in a manner that indicated that the applicant did not experience interpreting issues. Furthermore, it found that the applicant did not raise any interpreting issues at the interview and his evidence had been inconsistent and vague. The Tribunal therefore rejected the applicant’s father’s claims in their entirety and concluded that he did not satisfy s 36(2)(a) or (aa).

   The Tribunal then proceeded to consider the applicant’s own claims. It accepted that on a number of occasions, the applicant had been sexually molested, had self-harmed, was undergoing counselling and may have had a number of mood disorders. However, the Tribunal noted that the existence of past abuse did not necessarily mean that the applicant was a refugee and the Tribunal’s task was to determine whether the harm that she feared was for a Convention reason and was well-founded.

   Having regard to DFAT’s 2014 country information report on Malaysia and taking into account that women in Malaysia faced a high risk of societal and official discrimination and violence, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution that was relevant to the refugee criterion. The Tribunal noted that the applicant’s evidence did not suggest that she feared domestic or intimate partner violence, “but rather something more speculative and random”.

   While the Tribunal accepted that the applicant had a number of mental health issues and stated that she may self-harm, the Tribunal did not accept that any future self-harm due to her mental health issues was for a Convention reason. Turning to the complementary protection criterion, the Tribunal was not satisfied that, given the speculative nature of the applicant’s fear, there was a real risk that she would suffer significant harm. As for her mental health issues and risk of self-harm, the Tribunal found that significant harm as relevant to the Act contemplated harm that was inflicted by a third party. As such, the Tribunal was not satisfied that the applicant faced a real risk of significant harm in Malaysia and affirmed the delegate’s decision. (references omitted)

THE PROCEEDING IN THIS COURT

1. In her application commencing this proceeding the applicant alleged:

   1.The Administrative Appeal Tribunal (AAT) erred in its judgment that the applicant father evidence regarding demolition of restaurant.

   2.The Administrative Appeal Tribunal did not follow procedural fairness in not considering demolition of applicant father restaurant, political activity and his return to Malaysia.

   3.The Administrative Appeal Tribunal (AAT) erred in its judgment not accepting applicant father explanation that he returned to Malaysia in 2014 for short time for the safety of his family particularly his pregnant wife.

   4.The Administrative Appeal Tribunal (AAT) erred in its judgment not giving enough consideration on interpreter issued raise by the applicant father has interpreter problem.

   5.The Administrative Appeal Tribunal (AAT) erred in its judgment without properly applying relevant law even after applicant stated that she was sexually molested.

   6.The Administrative Appeal Tribunal (AAT) erred in its judgment not considering applicant interest in political party as many meetings were held in restaurant.

   7.The Administrative Appeal Tribunal made legal error even after accepting that the applicant may face persecution if decision be affirmed.

   8.The Administrative Appeal Tribunal (AAT) in its judgment failed to use its reasoning in applying relevant act, rules and ministerial guidelines in consideration of provided facts and made legal error.

Grounds 1 and 3

1. The first and third grounds of the application challenged the Tribunal’s findings on certain factual matters.  The Court has no jurisdiction to substitute its view of the facts for that of the Tribunal, its role being limited to determining whether the Tribunal’s decision is affected by jurisdictional error.

2. Consequently, these allegations disclose no basis upon which the Court might set the Tribunal’s decision aside.

Ground 2

1. The second ground of the application alleged that the Tribunal had not considered particular issues raised by the applicant’s father in his claim for protection, in respect of which the present applicant had a practical interest as a member of his family unit and so a sort of subsidiary claimant.  However, the allegation is not well-founded in fact.  The matters which the applicant alleged were not considered by the Tribunal were in fact discussed in some detail in paras.11 to 24 of its reasons. 

Ground 4

1. The burden of the fourth ground of the application was that the Tribunal had not thought sufficiently on an issue to arrive at a conclusion favourable to the applicant and her father.  In substance this allegation is no different from the first and the third grounds of the application and challenges the Tribunal’s fact finding.  It therefore identifies no jurisdictional error.

Grounds 5 and 8

1. The principal implication of the fifth and the eighth grounds of the application was that the Tribunal had not correctly applied the Act’s statutory tests and associated instruments when considering her claims for protection. Those allegations were not particularised and the applicant did not advance any meaningful argument in their support.

2. Moreover, the evidence does not support them. First, in paras.2 to 7 of its decision record the Tribunal set out the Act’s criteria for the grant of a protection visa and referred to the applicable Ministerial Direction and relevant departmental policy guidelines and Department of Foreign Affairs and Trade country information assessments. The relevant statutory provisions were an attachment to the decision record. From this it is apparent that the Tribunal knew the tests it had to apply and the matters it had to take into account.

3. Secondly, the Tribunal applied those tests, first in relation to the applicant’s father, at paras.23 and 24 of its reasons, and then in relation to the applicant, at paras.28 to 32 of its reasons. Those reasons do not disclose an error in approach, noting that the applicant’s father’s material claims were comprehensively disbelieved and that the applicant’s claim to be at risk of self-harm could not amount to “significant harm” as defined by s.36(2A) of the Act. One consequence of those findings is that there was no call for the Tribunal to consider the department’s procedures manual PAM 3, which had been referred to in para.7 of the Tribunal’s reasons.

4. The secondary implication in the fifth and eighth grounds of the application was that the Tribunal “failed to use its reasoning”.  To the extent that this is not an allegation that a relevant test was not applied correctly, it is a challenge to the findings that the Tribunal made after applying the relevant tests.  However, the Tribunal’s not unreasonable disbelief of the applicant’s father’s material claims meant that there was no factual basis for a finding that he was entitled to a protection visa on the bases advanced.  In relation to the applicant, the Tribunal gave cogent reasons for concluding that the harm she claimed to fear did not satisfy the test of “significant harm”.  Its reasoning was unexceptionable in both cases.

Ground 6

1. In the sixth ground of the application the applicant alleged that the Tribunal failed to consider her interest in politics, which it might be inferred was supportive of the party and interest her father favoured.  However, the applicant did not claim to fear persecution because of her political opinion.  Given that she specifically made her own separate, express claims in relation to sexual molestation, the Tribunal might reasonably have understood that if she had wanted to make any other claims she would have done so in the same express manner.  She not having done so, the Tribunal did not err in not perceiving a claim which she did not express:  SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57]. Further in that regard, no unarticulated claim to fear persecution on political grounds otherwise arose sufficiently clearly on the materials that the Tribunal had to consider it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1.

Ground 7

1. The allegation in the seventh ground of the application, that the Tribunal erred “after accepting that the applicant may face persecution”, is based on a false premise, namely what appears in that quotation.  The Tribunal did not find that the applicant might face persecution. 

Other matters

1. In discharge of his duty as a model litigant the Minister disclosed that the Department had sent to the Tribunal a certificate under s.375A of the Act, the effect of which was to prevent the Tribunal from discussing with the applicant the information referred to in that certificate.

2. Failure to notify an applicant of a s.357A certificate would ostensibly amount to a denial of procedural fairness:  Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305 at 315 [40]. However, whether there was a denial of procedural fairness in fact depends on whether the Tribunal’s conduct in not advising of the certificate was material to the outcome of its review. The issue is whether there is a realistic possibility that the Tribunal’s decision could have been different if the notification had been disclosed so as to allow the applicant a full opportunity to make submissions on it: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 445-446 [49]. The information in question, to which I have had regard, was annexed to an affidavit filed by the Minister. In my view, it could not have had any relevance to the outcome of the review, being only the content of relevantly immaterial departmental business records. It is not apparent to me that there was a realistic possibility that the Tribunal’s decision would have different were it to have advised the applicant of the existence of the s.375A certificate.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  30 March 2020