AVL17 v Minister for Immigration
[2019] FCCA 3037
•29 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AVL17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3037 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal failed to have regard to the individual circumstances of the case and applied country information in general – whether the Tribunal failed to afford the applicant the opportunity to respond to country information – whether the Tribunal took into account an irrelevant consideration – whether the Tribunal failed to afford the applicant procedural fairness – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 425, 476 |
| Cases cited: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; |
| Applicant: | AVL17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 579 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 18 October 2019 |
| Date of Last Submission: | 18 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 29 October 2019 |
REPRESENTATION
| Applicant: | In person |
| Representative for the Respondents: | Mr J. Pinder |
| Solicitors for the Respondents: | Minster Ellison Lawyers |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application made on 25 February 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 579 of 2017
| AVL17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) made on 25 February 2017 which seeks review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 February 2017 which affirmed the decision of the Minister’s delegate (“the delegate”) not to grant the applicant a protection visa.
The evidence before the Court is contained in a bundle of relevant documents (“the Court book”–“CB”–“RE1”).
Background
The applicant is a citizen of Malaysia, she is of Chinese ethnicity and a Buddhist (CB 13 and CB 127). She arrived in Australia on 21 March 2012 (CB 20). Her application for a protection visa was received by the Minister’s Department on 4 June 2015 (CB 2–CB 39).
The delegate refused to grant the applicant a protection visa on 31 August 2015 (CB 75–CB 85). The delegate was not satisfied that the applicant was owed protection under s.36(2)(a) and s.36(2)(aa) of the Act, as the delegate found the applicant was not credible in her claims (CB 84–CB 85).
The applicant applied to the Tribunal for review on 23 September 2015 (CB 87–CB 88). The applicant was represented by a registered migration agent. The applicant (through her migration agent) was invited by letter dated 1 November 2016 to attend a hearing before the Tribunal (CB 97 –CB 100). The applicant and her migration agent ultimately attended a hearing before the Tribunal on 25 January 2017 (CB 113). On 15 February 2017 the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (CB 125–CB 131).
The applicant’s claims to protection were variously set out in her application form (CB 31–CB 33) and as they were put before the delegate (CB 79–CB 80).
The applicant’s claims to fear harm were said to arise from facing discrimination because of her Chinese ethnicity in Malaysia, and a fear of harm from her sister’s boyfriend.
In relation to this latter claim the applicant claimed to have a “mentally handicapped” sister who was raped by an indigenous Malay, and fell pregnant. This man physically and mentally abused her sister and continued to do so.
The applicant claimed to have sought to intervene, and was physically harmed and threatened as a result. She reported the assault to the police, but they did not interfere because he was an ethnic Malay.
The Minister’s written submissions provide a fair summary of the Tribunal’s reasoning and findings:
“13. Contrary to the findings of the delegate who rejected the entirety of the applicant's claims for credibility reasons, the Tribunal accepted the following claims advanced by the applicant:
(a) the applicant's sister may have been subject to domestic violence by her (ie, the applicant's sister's) boyfriend and that she has given birth to at least one child (CB129 at [29]);
(b) the applicant may have attempted to intervene in the situation before departing Malaysia and the applicant may have been physically mistreated and detained by her sister's boyfriend (CB129 at [29]); and
(c) the applicant's claim that her attempt to report her sister's boyfriend to the police may not have been acted upon (CB129 at [30]).
14. Despite accepting the above factual claims, the Tribunal found that applicant's actions since her departure in March 2012 did not support her claim that she will attempt to help her sister if she returns to Malaysia (CB130 at [32]). The Tribunal considered it 'significant' that the applicant had only contacted her family once since her departure and that her inaction demonstrated that she did not have a genuine interest in her sister's wellbeing. In support of this conclusion, the Tribunal also referred to the applicant's lack of knowledge about her sister's current circumstances and wellbeing detailing the problematic elements of the applicant's evidence (CB127–129 at [19]–[20], CB129 at [28]).
15. On the basis the applicant would not intervene in her sister's affairs, the Tribunal concluded the applicant was not at risk of serious or significant harm if she were to return to Malaysia (CB129–130 at [31]).
16. Regarding the applicant's claim to fear harm by reason of her Chinese ethnicity, the Tribunal found that the applicant's claimed instances of harm did not reach the requisite threshold to give rise to a risk of serious or significant harm (CB130 at [32]). Further, and having regard to the applicant's background, the Tribunal concluded that the country information did not support her claim to fear harm on the basis of her status as a Chinese Malay living in Malaysia (CB130 at [32]–[34]).
17. The Tribunal also considered whether any claims arose on the basis of the applicant's status as a Buddhist or about her sister observing Islamic traditions. Even in the event that these matters did give rise to a claim, the Tribunal concluded that the country information indicated the applicant would not be at risk of harm for those reasons (CB131 at [35]).”
The Application to the Court
The grounds of the application to the Court are in the following terms:
“1. The Tribunal committed jurisdictional error by failing to consider the applicant’s individual claims or case, rather to apply the country information in general.
2. The Tribunal failed to afford the applicant’s opportunity to make further submission after the Tribunal raises the Country information upon which the Tribunal has relied.
3. The Tribunal erred in taking irrelevant matters into account, namely, lack of family contact does not ease the applicant’s fear of being persecuted in Malaysia when she returns.
4. The Tribunal failed to provide a procedural fairness to the applicant.”
Before the Court
At the hearing the applicant appeared in person. She was assisted by an interpreter in the Mandarin language.
The applicant submitted that she was fearful of returning to Malaysia as she said that she would face the same harm that she had faced previously. For the reasons set out below this submission, in context, did not rise higher than an expression of grievance with the outcome of the Tribunal’s consideration. For the remainder, when taken specifically to each of the grounds of the application to the Court, the applicant submitted that she had “nothing” to say other than in relation to ground 3 where she stated she was fearful of returning to Malaysia. At best this was a request for impermissible merits review. She explained that someone else had assisted her in drafting the grounds.
Consideration
Ground one of the application asserts jurisdictional error on the basis that the Tribunal is said to have failed to have regard to the individual circumstances of the applicant’s case. Rather, the complaint is, the Tribunal applied country information “in general”.
No particulars have been provided. Nor, despite opportunity to do so, has the applicant provided any amended application, or written submissions, in explanation of her ground.
As set out above the applicant had nothing to say in relation to this ground before the Court.
The contention at the heart of the ground must be rejected. The Tribunal did consider the applicant’s claimed individual circumstances. As set out above, it gave her the benefit of the doubt, and accepted that certain aspects of her claims may have occurred.
Some care must be taken in understanding the relevant reasoning of the Tribunal. As set out above the delegate plainly, and clearly, disbelieved the applicant’s factual claims as they related to past events.
The Tribunal member appears to have been similarly troubled by the identified deficiencies in the applicant’s evidence. As set out at [28] of the decision record the Tribunal found some aspects of the applicant’s evidence to be “problematic”. This involved what was said to be the applicant’s inability to name the person accused of harming her sister, and of beating and locking her up, differing evidence about the number of children her sister has, the length of time she was incarcerated at the hands of her sister’s boyfriend and “a shifting account” to whether she reported this matter to the police (see [28] at CB 129).
Although not satisfactorily explained, the Tribunal said that it gave the applicant “the benefit of the doubt”. It accepted that her sister may have been subject to violence by the boyfriend, that she has borne him at least one child, and that the applicant may have attempted to intervene in the situation before departing Malaysia. Further, that she too may have been physically mistreated and detained by her sister’s boyfriend (see [29] at CB 129).
It is important to note, as was emphasised by the Minister’s submissions orally before the Court, the distinction between past events and the relevant test required of the Tribunal which concerned the foreseeability of future harm (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 at 279). While past events are often of assistance in establishing a well-founded fear of harm in the reasonably foreseeable future they are not “a certain guide to the future” (Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22 at 574).
In the current case, as set out above, the Tribunal was prepared to accept that certain past events had occurred. That is that some time prior to the applicant’s departure from Malaysia in 2012 she had intervened in an attempt to assist her sister ([29]), and that the police did not assist when she reported this matter to them ([30]).
However, and with the appropriate focus on what was reasonably foreseeable if the applicant were to return to Malaysia at some time after February 2017 (the time of the Tribunal’s decision) which was nearly five years after the applicant’s arrival in Australia, the Tribunal had regard to the applicant’s own evidence of what had occurred in the intervening years to find that there was not a real chance or a real risk the applicant would suffer serious or significant harm from her sister’s boyfriend if she were to return to Malaysia ([31]).
In short therefore, while the Tribunal was prepared to accept that her sister had been subjected to violence in the past, and that the applicant had unsuccessfully intervened to assist her in the past, such intervention would not likely occur in the future.
The Tribunal’s reasons for this are set out at [31] (CB 129-CB 130):
“31. Notwithstanding the above, the Tribunal finds it significant that the applicant, who left Malaysia in March 2012, claims to have only contacted her family once, a very long time ago. Given the applicant’s repeated responses that she does not know where her sister is living now or whether she remains living with her boyfriend, that she does not know the names of, or how many children her sister has now and still doesn’t know the name of her sister’s boyfriend, the Tribunal is satisfied the lack of family contact extends to her sister. Despite the applicant’s claims that she will have to help her sister to leave her boyfriend if she returns to Malaysia she has made no effort for almost five years to enquire about her wellbeing or to find out whether she is in fact still living with her boyfriend or whether she wants to leave him. The Tribunal considers the applicant could have at least tried to enquire about her sister from Australia without any risk to her own personal safety yet she has made no effort to do so. The Tribunal considers her actions over the past five years do not support her claim that she will attempt to help her sister if she returns to Malaysia. Given the applicant has been in Australia and her sister’s boyfriend could have no way of knowing where she is, the Tribunal does not find it plausible she has refrained from contacting her sister or offering her support of any kind out of fear for her own safety. The Tribunal is not persuaded the applicant will intervene in her sister’s situation if she returns to Malaysia and nor does the Tribunal accept that this will be to avoid any harm to herself. Therefore, the Tribunal finds there is not a real chance or a real risk the applicant will suffer serious or significant harm from her sister’s boyfriend on return to Malaysia.”
None of the matters relied on by the Tribunal in the paragraph set out directly above, are inconsistent with its findings as to past events. In short, the Tribunal accepted that she had intervened to assist her sister in the past, but was not satisfied for the reasons given, and probative of the applicant’s own evidence before it, that she would do so in the future. No jurisdictional error arises in this regard.
It would appear that the real complaint in ground one is that the Tribunal should not have applied the country information in its analysis in the way that it did.
This country information is referred to in the Tribunal’s decision record. The Tribunal reports that it put this information to the applicant at the hearing ([25] at CB 128 and see [33] at CB 130).
As the Minister submits the choice of country information and the weight to be assigned to it is a matter for the Tribunal to determine in the proper exercise of its jurisdiction (NAHIv Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10).
In any event, the country information referred to by the Tribunal does not appear to have been determinative, in an adverse sense, in the Tribunal’s decision. The Tribunal was prepared to accept, based on country information, that there are some limitations to protection for victims of domestic violence in Malaysia, and that the police would not have acted on her reports of her sister’s abuse, which supported the applicant’s claims as to past events.
However, in the current case, as the Tribunal described it, the “significant” aspects of its analysis in affirming the delegate’s decision are to be found at [31] (see above at [25]).
The reason therefore, that the Tribunal affirmed the delegate’s decision was that the applicant’s conduct, based on her own evidence to the Tribunal, in the succeeding years since she departed Malaysia was such that the Tribunal found she would not seek to assist her sister if she were to return to Malaysia.
Therefore, whatever the police attitude to assisting the applicant may have been in the past, was not relevant to what would likely occur in the future. As set out above the Tribunal’s finding that there was not a real chance of serious or significant harm to the applicant arising from her sister’s boyfriend if she were to return was reasonably open to it for the reasons given. In all ground one is not made out.
Ground two asserts that the Tribunal failed to afford the applicant the opportunity to make further submissions in relation to country information on which it relied. No particulars are provided. Nor did the applicant make any submissions in explanation or support of this ground.
Nonetheless, the country information referred to by the Tribunal refers to law enforcement in Malaysia and the availability of protection for victims of domestic violence, and information concerning the status of ethnic Chinese in Malaysia (see at [25] and [32]–[34]).
This information, on the evidence, was put to the applicant at the hearing ([25] and [33]). In that light no breach of s.425 of the Act is apparent to the extent that such information was relevant to an issue in the review.
Further, as the Minister submits there was no obligation on the Tribunal to give this information to the applicant for the purposes of s.424A(1) of the Act. Country information was exempt from this obligation by operation of s.424A(3)(a) (VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 and QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92). Ground two is not made out.
Ground three asserts that the Tribunal took into account an irrelevant consideration when it found that the applicant’s lack of contact with her family was an indicator of what would likely happen on her return to Malaysia.
As set out above the central part of the applicant’s claim to fear harm if she were to return to Malaysia was a fear of harm from her sister’s boyfriend who had subjected her sister to domestic violence and who had threatened and harmed the applicant when she sought to intervene in the past.
The Tribunal accepted that violence had occurred in the past and that the applicant had (“may have”) intervened to assist her sister.
However, even in this circumstance it was still reasonably open to the Tribunal to consider that her lack of subsequent contact with her sister, over some years, was relevant to whether she would face harm in the future.
As the Minister submits that evidence was not irrelevant in the consideration as to whether the applicant would likely suffer harm on return (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at 40, [15]).
Nor did the Tribunal’s findings as to what the applicant would do on return to Malaysia involve, or impose, any expectation that the applicant take reasonable steps to avoid harm (S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71). In all ground three is not made out.
Ground four is a bare and unparticularised assertion that the Tribunal failed to provide procedural fairness to the applicant. Before the Court the applicant had nothing to say in explanation of this ground.
The Tribunal’s natural justice and procedural fairness obligations are set out at Part 7 of the Act. In this light the applicant was invited to a hearing. On the evidence the applicant was given the opportunity to give her evidence and make her arguments on the issues in the review.
Further, there is no indication that the obligation in s.424A(1) was enlivened. The Tribunal’s views of the evidence before it, its appraisal, and subjective view, of that evidence, is not information for the purposes of s.424A (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26) In all ground four is not made out.
Conclusion
The grounds of the application do not reveal jurisdictional error in the Tribunal’s decision. It is appropriate to dismiss the application to the Court. I will make that order.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 29 October 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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