AYE17 v Minister for Immigration

[2019] FCCA 3018

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYE17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3018

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal (AAT) decision – whether the AAT committed jurisdictional error by failing to comply with s.424A of the Migration Act 1958 (Cth) in relation to country information – whether the AAT misinformed itself of the particular circumstances of the applicant and incorrectly applied the test – whether the non-disclosure to the applicants of documents subject to a s.438 certificate reveals jurisdictional error on the part of the AAT – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 424A, 426A, 438, 441A, 476

Cases cited:

VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82; (2004) 80 ALD 559
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) ALR 609; (2007) 96 ALD 1
MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081; (2016) 243 FCR 1; (2016) 155 ALD 98
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3; (2019) 93 ALJR 252; (2019) 363 ALR 599; (2019) 163 ALD 38

First Applicant: AYE17

Second Applicant: AYF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 657 of 2017

Judgment of: Judge Nicholls

Hearing date: 17 October 2019

Date of Last Submission: 17 October 2019

Delivered at: Sydney

Delivered on: 25 October 2019

REPRESENTATION

First Applicant: In person

Solicitors for the Respondents: HWL Ebsworth Lawyers

Legal Representative for the Respondents: Ms S. Lloyd

ORDERS

1. The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application made on 6 March 2017 is dismissed.

3. The applicants pay the first respondent’s costs set in the amount of $5600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 657 of 2017

AYE17

First Applicant

AYF17

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 6 March 2017, which seeks review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 8 February 2017, which affirmed the decision of the Minister’s delegate (“the delegate”) not to grant the applicants protection visas.

2. In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB” – “RE1”), and the affidavit of Katherine Elizabeth Garaty affirmed on 13 October 2017.

Background

1. The applicants are ethnic Malay and Muslim (item 33 and item 34 at CB 14). They are citizens of Malaysia (item 18 at CB 12). They are a husband (“the first applicant”) and wife (“the second applicant”), who were married in Malaysia on 10 March 2012 (item 36 at CB 14). They arrived in Australia on 27 February 2015 (item 47 at CB 19) as tourists ([3] at CB 129). They each applied for a protection visa on 25 May 2015 (CB 72.3, and CB 1 – CB 66 generally).

2. The first applicant’s claims to protection were that he feared harm from the government and police in Malaysia because of his support of a particular opposition political figure (Abdul Hadi bin Awang) and electoral reform.

3. The first applicant claimed that he had attended anti-government demonstrations on 9 July 2011 and in December 2013, and had been arrested on both occasions. He claimed to have been detained for one and two days respectively ([25] at CB 131). He attended a demonstration in February 2015 ([25] at CB 131). However, he avoided arrest and travelled to Australia.

4. The second applicant applied for the protection visa in her own right.  That is, she did not apply as a member of the first applicant’s family unit (she submitted a “Part C” application form, not a “Part D” which relates to family members). However, she advanced no claims to protection (CB 36 – CB 60).

5. Both applications were refused by the delegate on 24 March 2016 (CB 80 – CB 95). After considering country information, the delegate was not satisfied that a low level supporter of a Malaysian opposition party would likely face harm for that reason on return to Malaysia. The second applicant made no claims for assessment.

The Tribunal

1. The applicants applied for review to the Tribunal on 2 May 2016 (CB 97 – CB 98). They provided a copy of the delegate’s decision record to the Tribunal (CB 99 – CB 110).

2. Both applicants were invited to attend a hearing before the Tribunal on 6 February 2017 (CB 115). The first applicant attended the hearing. He gave evidence with the assistance of an interpreter in the Malay language (CB 120). The second applicant did not attend.  It appears no explanation was ever proffered for her failure to attend.

3. The Tribunal was satisfied that the second applicant was properly invited to a hearing pursuant to s.441A(5) of the Act ([8] at CB 129). It proceeded to make its decision: “…without taking any further action to enable [the second applicant] to appear before the Tribunal” ([9] at CB 129). It was also noted that the second applicant, although included as a “Part C” applicant, was not referred to in the first applicant’s claims and did not lodge: “…substantive claims of her own” ([10] at CB 129).

4. The Tribunal found that there was “insufficient evidence” before it to find that the second applicant had a: “…well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion…” ([11] at CB 130). Therefore, the outcome for the second applicant’s protection visa application was dependant on the outcome of the first applicant’s protection visa application ([12] at CB 130).

5. The first applicant’s claims to protection were variously set out in his application form (CB 30 – CB 32). These claims, and relevant country information, were outlined by the Tribunal as follows (at CB 131):

   “23. [The first applicant] claimed he left Malaysia because he was at risk of being arrested due to being a supporter of Abdul Hadi bin Awang,¹ a Malaysian politician who has been President of the Pan-Malaysian Islamic Party (PAS), an Islamist political party in Malaysia, since 2002.

24. At the international level, Hadi bin Awang was evidently appointed as the Vice President of the International Union of Muslim Scholars and was featured in a 2016 publication of “The Muslim 500: The World’s 500 Most Influential Muslims” under category of “Preachers and Spiritual Guides”. He has reportedly written several books related to democracy and politics in Islam and also gives lectures every Friday morning at Rusila Mosque in Terengganu.² As at 27 January 2017, he was evidently living at large and still regularly and frequently publishing opinions in Malaysia.³

25. [The first applicant] claimed to have attended an anti-government demonstration on 9 July 2011 at which he was arrested and after which he was detained by police for one day. He claimed he attended a second demonstration in December 2013 and was arrested and detained for two days. He claimed he also attended a demonstration in early February 2015. He claimed that police came to arrest him but he ran away. He claimed he left Malaysia to avoid arrest by the police for being a supporter of Hadi bin Awang.”

[Footnotes Omitted.]

1. Further, the Tribunal made the following observations with regard to the above claims (at CB 131):

   “26. Asked if he had suffered harm in Malaysia, [the first applicant] repeated the above-cited claims about arrest, attempted arrest and detention. He said the authorities will not protect him. He claimed it would be useless to try to move to another part of Malaysia to avoid harm.

27. [The first applicant] did not provide any evidence in support of his claims. I note that he claims to have departed Malaysia legally by air, indicating that the authorities in Malaysia, rather than arresting him, let him depart their jurisdiction.”

1. The evidence provided by the first applicant to the Tribunal was a copy of the delegate’s decision including a summary of his claims: “…along with citations from various independent sources including DFAT [Department of Foreign Affairs and Trading] in relation to the kinds of political behaviour that evidently can and do attract prosecution and detention in Malaysia” ([28] at CB 131 – CB 132).

2. The Tribunal generally found the first applicant to be an “unimpressive witness” ([38] at CB 133) as he was unable to provide further explanation or supporting evidence when questioned about his claims. This can be seen in the following extracts from the Tribunal’s decision (at CB 132):

   “29. I asked [the first applicant] if he had any material to support his claims and he said he had none. He said it was hard to have supporting evidence sent to Australia. I asked him what attempts he had made to obtain supporting evidence and he said it was difficult to obtain such material. I asked him of his family could have posted supporting evidence and he said his family did not know about his political activities. I asked him if his family had not missed him when he was detained and he said they did. I asked him how he had explained his absence to his family if they still did not know about his experiences and he said his family does know but does not care. His evidence on the particular question of his family’s awareness of his problems with the authorities struck me as inconsistent and improvised and, therefore, unreliable.

30. [The first applicant] told me the police came to arrest him at his house on 1 February 2015. He said he was not at home at the time. He proceeded to give me inconsistent evidence as to where he resided from that day on. He also changed his original evidence as to when the 2015 demonstration took place: he now said it was held at the beginning of January 2015. I asked Mr Mohammad where I might find evidence of the January 2015 demonstration and he said he did not know. He said Hadi bin Awang had led the demonstration. He said it involved only about 50 people.

31. I asked [the first applicant] to describe Hadi bin Awang’s current status in Malaysia. [The first applicant] then confirmed that Hadi bin Awang is a free man in Malaysia who remains a leader of the PAS and a respected teacher. He did not suggest that Hadi was living under any restrictions such as bail or anything else. I asked [the first applicant] why the police wanted to arrest him for attending a demonstration led by Hadi bin Awang if Hadi himself was still a free man, teaching and preaching, and all he said in reply was, “I was thinking about it.”

32. [The first applicant] told me the police have put him on a “black list”. I asked him how this claim might sit with the fact that his passport was not cancelled and the fact that the authorities allowed him to depart their jurisdiction o 27 February 2015, so soon after trying and failing to arrest him. He was unable to provide a satisfactory explanation. I asked him how he came to know that he had been placed on a “black list” and he said, in effect, that he inferred that he was because the police were looking for him.

33. I asked [the first applicant] for details as to how he became involved with the PAS and he provided no detail at all: he said he just joined the party.

34. When I put to [the first applicant] examples of inconsistency in his evidence, he merely said, “I want to stay.”

35. I put to [the first applicant] that he gave inconsistent evidence as to when the 2015 demonstration occurred and invited him to comment. He indicated that he did not wish to comment.”

[Errors in the Original.]

1. Ultimately, the Tribunal found that the first applicant did not face: “…a real chance of persecution in Malaysia in the reasonably foreseeable future for any reason provided in the Act (s.5J(1)(a)…)…” ([43] at CB 133). This was due to the Tribunal’s findings that (at CB 133):

   “38. …[the first applicant] was not able to explain why he would be pursued for arrest by the police over such a small demonstration as he described whilst the alleged leader was still living at large in the community continuing to disseminate his opinions.

39. [The first applicant]’s oral evidence about the “black list”, about going into hiding away from his house and about his family’s lack of awareness of his claimed experiences struck me as improvised and ultimately unreliable. I have considered this problem cumulatively, alongside my concerns as to why he would face arrest whereas Hadi bin Awang remains free.

40. [The first applicant] was not able to provide a satisfactory explanation as to why he was able to leave Malaysia legally in the cla[i]med circumstances. I have given cumulative weight to this failure on his part. I give weight in the claimed circumstances to the fact that he was allowed by Malaysian authorities to leave their jurisdiction in 2015.

41. I do not believe on the evidence before me that [the first applicant] was sought by the police in 2015 or that he went into hiding as claimed.

42. On the evidence before me, I am not satisfied that [the first applicant] was ever arrested for attending any demonstrations or rallies in Malaysia. I am not satisfied on the inconsistent evidence about the alleged 2015 rally that [the first applicant] ever attended any demonstration against the Malaysian government, either in that year or in years before. I do not accept on the evidence before me that [the first applicant] has ever joined the PAS or any other political party in Malaysia.”

[Error in the Original.]

1. The Tribunal affirmed the decision under review and refused the grant of the protection visas to the applicants on 8 February 2017. The Tribunal was not satisfied that the first applicant, and by default, the second applicant, were persons to whom Australia owed protection obligations, and therefore did not satisfy the criterion as set out in s.36(2)(a) and s.36(2)(aa) of the Act ([44] at CB 133 and [47] at CB 134). Following from this, the applicants were unable to satisfy the criterion set out in s.36(2)(b) or (c) of the Act ([48] at CB 134).

The Grounds of the Application

1. The grounds of the application to the Court are in the following terms:

   “1. The Administrative Appeals Tribunal committed jurisdictional error by failing to comply with the compulsory requirement of S424A Migration Act, with regard to country information used by the Tribunal.

   2. The Tribunal misinformed itself of the particular circumstances of the applicant and incorrectly applied the test.”

[Error in the Original.]

Before the Court

1. The matter was first before the Court on 22 June 2017. On that occasion, orders were made, by consent, setting out a timetable for the filing of documents. Relevantly, those orders provided that the applicants were to file and serve any affidavit containing additional evidence to be relied upon (including any transcript of a Tribunal hearing), and any amended application, by 7 September 2017.

2. Further, that the first respondent was to file and serve any affidavit evidence by 13 October 2017. Various other timetabling orders were made, by consent, on 19 October 2017 and 10 May 2018, regarding the filing of documents, and setting the matter down for final hearing. No further documents have been filed by the applicants.

3. At the hearing before the Court, the first applicant appeared in person.  He was assisted by an interpreter in the Malay language. He confirmed that he had nothing further to put to the Court beyond what was set out in his application. I ultimately understood from the first applicant that he had come to Court to, in effect, put forward his claims to protection (see further below).

4. The second applicant did not appear. The first applicant ultimately explained that she knew he had come to Court, and that he would speak for her. The hearing proceeded on that basis.

5. The first applicant stated that he wanted to tell the Court his “story”. That is, about the events in Malaysia, and why he wanted a protection visa, and that he should be granted such a visa.

6. I explained to the applicant that the Court has no power to grant him and his wife protection visas. The role of the Court was to review the Tribunal’s decision for any legal error. Even if the Court were of the view, after hearing his “story”, that he should be granted the visa, the Court could still not intervene to grant him the protection visa, or to return his case to the Tribunal on that basis. In short, unless jurisdictional error could be found in the Tribunal’s decision, the Court could not intervene to assist him.

7. It appeared that the first applicant understood this until, when given the opportunity to respond to the Minister’s oral submissions, he said he wanted to appeal from this Court, because he wanted protection visas.

8. For current purposes, there was nothing from the first applicant to indicate that the “story” he wished to tell contained anything other than what he had ultimately put before the Tribunal. Nor was there any indication that he wanted to tell his “story” as a basis to argue jurisdictional error in the Tribunal’s decision. In that sense, the first applicant’s request to tell his “story” could only be properly understood as a request for impermissible merits review.

Consideration

1. Ground one is a mere assertion that the Tribunal failed to comply with s.424A of the Act in relation to country information. The ground does not identify what country information this may be. Nor did the first applicant provide any explanation to the Court. When his attention was specifically drawn to ground one, the first applicant stated that this ground (and for that matter, ground two), were drafted by a friend, and he had no understanding of what had been written. He was unable, therefore, to assist in explaining the grounds of the application.

2. It is the case that s.424A(1) of the Act does oblige the Tribunal to give to an applicant clear particulars of information it considers to be the reason, or a part of the reason, for affirming the delegate’s decision.

3. However, country information, to the extent where it is information that is not specifically about the applicant or another person, and is just about a class of persons of which such persons are members, is excluded from this obligation by operation of s.424A(3)(a) (see VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [14]).

4. On the evidence before the Court, the Tribunal made reference to two media reports available on the internet (see footnotes in [23] – [24] at CB 131).  The reports were used by the Tribunal to refer to information about the political figure that the first applicant claimed to support. It appears that this information was consistent with information given by the first applicant himself about this political opposition party leader in Malaysia.

5. As the Minister submits, these references appear in the Tribunal’s outline of the first applicant’s claims as they were put to the Minister’s department. It is clear on any fair reading of the Tribunal’s decision that this information is set out to provide explanation of the status, role, and work of the political figure.

6. I agree with the Minister that when regard is had to the actual reasons given by the Tribunal for refusing the grant of the protection visas, this information was not the reason, or a part of the reasons, for affirming the delegate’s decision ([36] – [47] at CB 132 to CB 134).

7. The Tribunal’s relevant analysis reveals that such reasons were the Tribunal’s findings that the first applicant was an unimpressive witness, and that his claims were lacking in credibility. The information referred to by the Tribunal at [23] – [24] (at CB 131) played no part in this assessment.

1. Further, and separately, there is nothing in what the Tribunal has reported about these articles that can be said to be, in its terms: “…a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations.” (SZBYRv Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) at [17]). This is not information for the purposes of s.424A(1). If anything, the information would tend to support the first applicant’s claims of the role of the political figure in the Malaysian opposition.

2. No other possible relevant information in relation to s.424A(1) is indicated on the evidence before the Court. In all, ground one does not reveal jurisdictional error in the Tribunal’s decision.

3. Ground two asserts that the Tribunal misinformed itself of the first applicant’s particular circumstances and “incorrectly applied the test”.  No further particulars, or explanation, were provided.

4. In any event, the evidence before the Court provides no basis for these general assertions.

5. The first applicant’s claims and circumstances were set out in his application for the visa. When regard is had to the Tribunal’s summary of these claims, and its consideration of them, I cannot see that the allegation in the ground has any substance. At best, this is an expression of grievance with the Tribunal’s findings.

6. As to “the test”, it can only be properly assumed this is an attempt to refer to the relevant legal principles and criteria for the grant of the protection visa.

7. If that is the case, then there is no error in the Tribunal’s expression of the relevant law and the criteria ([13] – [17] at CB 130) or their application to the facts as found ([43] – [48] at CB 133 to CB 134).

8. I note further in this regard that the second applicant did not attend the hearing before the Tribunal. The Tribunal turned its mind to whether it should continue the hearing in her absence.

9. There is nothing in the evidence before the Court now to raise doubt about the Tribunal’s finding that she had been properly invited to the hearing (see [8] at CB 129 and CB 115 – CB 116).

10. The Tribunal proceeded to make a decision on her application pursuant to s.426A of the Act ([9] at CB 129). The Tribunal’s reasons to proceed in this way were that she had been properly invited to the hearing, but even with her husband in attendance, no request was made for a further opportunity for her to attend the hearing. In any event, as set out above, although the second applicant applied for a protection visa in her own right, and not as a member of the first applicant’s family, she advanced no claims whatsoever on her own behalf.

11. The Tribunal’s exercise of its discretion in this regard cannot be said to be unreasonable. Ground two, in all, is not made out.

12. The Minister also raised the following matter. At CB 96 is reproduced a certificate said to have been made pursuant to s.438 of the Act by an officer of the Minister’s department.

13. The certificate (on its face) is said to relate to folios 68 and 79 on the relevant departmental file. These documents are before the Court as exhibits to the affidavit of Ms Garaty.  They are:

    1    An internal departmental document headed “Identification Test: Protection Visa Applicants”.

    2    An internal departmental document headed: “Disclosure Decision Checklist”.

14. The certificate asserts that the disclosure of the information contained in these documents: “…would be contrary to the public interest because the aforementioned folios contain information relating to an internal working document and business affairs” (at CB 96.6).

15. The Minister accepted that the statutory preconditions set out in s.438(1)(a) of the Act were not met in relation to both these documents (see MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 at [36] – [37]). The Minister also accepted that, in short, the certificate is not valid.

16. However, the Minister argued that jurisdictional error is only revealed where any failure by the Tribunal to take these documents into account (because of the invalid certificate) is material to the Tribunal’s decision. That is, such an action, and the non-disclosure of the documents to the applicants, operates to deprive them of the possibility of a successful outcome (Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 (“SZMTA”) at [3], [44] and [48]).

17. I agree with the Minister that neither document, which is the subject of the certificate, could have resulted in a different outcome for the applicants.

18. The document at folio 68 concerned the applicants’ identity. This was never in issue before the Tribunal. The document at folio 79 could not be said to relate to the first applicant’s claims to protection. In all, therefore, no jurisdictional error is revealed in relation to the certificate, and the documents to which it was said to relate.

Conclusion

1. In the circumstances, there is no jurisdictional error in the Tribunal’s decision. It is appropriate to dismiss the application. I will make the appropriate order. 

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 25 October 2019