Azk15 v Minister for Immigration

[2015] FCCA 2303

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZK15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2303

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection visa – whether the Tribunal correctly identified the applicant’s receiving country – whether Tribunal erred in finding applicant not a witness of credit – whether Tribunal failed to address an integer of the applicant’s claims – findings open to the Tribunal – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36(3), 425, 427, 476, 499

Applicant: AZK15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1567 of 2015

Judgment of: Judge Street

Hearing date: 25 August 2015

Date of Last Submission: 25 August 2015

Delivered at: Sydney

Delivered on: 25 August 2015

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Solicitors for the Respondents: Mr A Markus
Australian Government Solicitors

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1567 of 2015

AZK15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 4 May 2015 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant filed an amended application which, omitting the particulars, identified the following four grounds.

   Ground 1: Jurisdictional Error of Law - Misapplication of law or failure to ask the correct question.

   1. The second respondent erred by misinterpreting, misunderstanding or misapplying the applicable law, or has otherwise failed to ask the correct question.

   …

   Ground 2: Jurisdictional Error

   20. The second respondent committed jurisdictional error by failing to complete the statutory task required of it to examine and deal with the applicant's claims, or an integer of his claims.

   21. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.

   22. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.

   …

   Ground 3: No Evidence

   30. There was no evidence or other material to justify the making of the decision or the second respondent relied on facts, which did not exist, when making the decision.

   …

   Ground 4: Relevant Considerations

   48. The Second Respondent failed to take into account a relevant consideration in the exercise of power.

3. At the hearing, counsel for the applicant also raised a further ground, being an alleged jurisdictional error by reason of the Tribunal failing to take into account and apply the PAM3 Refugee and Humanitarian Complementary Protection Guidelines.

4. It is necessary in this case to set out some of the history of the application by the applicant who, at the time he first applied for protection, provided a statutory declaration in which he asserted that he was born in Malaysia as well as maintaining that he was of Arabic Shia ethnicity and said that he was a Malaysian national.  It is clear from a fingerprint match report in relation to the applicant that the applicant had a different name to that which he had used in his statutory declaration and was, in fact, born in Yemen.  That information was also consistent with other biometric identity information in relation to the applicant. 

5. The applicant then prepared a further statutory declaration in which he set out in some detail his travel from Yemen to Malaysia in November 2010 and asserted as a fact that he was granted Malaysian citizenship in June 2013.  The applicant identified the basis upon which that citizenship was granted and he made reference to the grounds upon which his former Yemeni citizenship would have been revoked, and he maintained that he was no longer a Yemeni citizen. 

6. In his second declaration, the applicant maintained that his Malaysian passport was genuine and that he is a Malaysian national and he has no other nationality or right to reside in any other country.  The applicant proffered up his Malaysian passport for examination and verification and he explained that the reason why he had been untruthful with the first respondent was because he did not want to lose his citizenship with Malaysia. 

7. It was in those circumstances that the delegate came to identify the applicant’s alleged fears in relation to his application for protection.  The delegate set out from the Constitution of the Republic of Yemen 1994 Yemeni laws in relation to the applicant’s nationality.   The delegate also identified that limited information had been provided relating to the marriage and daughter of the applicant in Malaysia.  The delegate found that the applicant was a citizen of Yemen, and not Malaysia, and therefore approached Yemen as the applicant’s country of reference for the purpose of assessing protection obligations under the Refugee Convention.

8. It was in those circumstances that the delegate found that the applicant had the benefit of protection of a third country, being Yemen, within the meaning of s.36(3). Then the delegate identified the false evidence given by the applicant at the time of his first interview and made findings that the applicant was born in and a citizen of Yemen. The delegate was not satisfied that the applicant had arranged the revocation of his Yemeni citizenship. The delegate further found that the applicant was not a witness of truth and did not believe that he had revoked his citizenship. It was in those circumstances that he found the applicant to be a Yemeni citizen.

9. The delegate found that the applicant did not have a well-founded fear in circumstances where the applicant had the effective protection of a third country under s.36(3) and accordingly found that Australia did not owe the applicant any protection obligation and that it was not necessary to assess the issue of complementary protection.

10. After the delegate’s decision, the applicant put on a further statutory declaration in which he maintained that he was the holder of a Malaysian passport and that he was the former holder of a Yemeni passport.  The applicant acknowledged his true identity in terms of his name and place of birth, but maintained that he was currently married to a Malaysian national and had one independent child who was a citizen of Malaysia.  The applicant also asserted that he was a Shiite Muslim and said that he had fled to Malaysia using his Yemeni passport because of conflict between Shiites and Sunnis and that as a Shiite he feared he would be targeted by the Beit Thawi, who are a hostile Sunni tribe.

11. The applicant set out why he feared being returned to Yemen founded on being a Shiite and being targeted by the Sunni militants and also a fear on the basis of what he described as the “Malaysian passport issue”. The applicant set out fears relating to returning to Malaysia because of his earlier false statements and a fear of being deported to Yemen based on his true identity and the danger he would face in Yemen.

12. The applicant put on a further statutory declaration in which he again identified his true identity and place of birth and said:

    I am a Yemeni citizen.

13. The applicant identified the danger Shiites face in Yemen, and also what he described as his fear based on his false Malaysian identity, and that he would be accused of maintaining that false identity to achieve political ends. 

14. By letter dated 18 March 2015 the applicant was invited to attend a hearing on 14 April 2015 before the Tribunal, which he attended to give evidence and present arguments and was assisted by an interpreter as well as being represented by his registered migration agent.  Before the Tribunal as identified in para.2 of the Tribunal reasons the applicant maintained the claim to be a citizen of Malaysia. The applicant identified reasons why he left Malaysia, and maintained that he is currently married to a Malaysian citizen with whom he has one child.  He maintained, however, that he was a Shiite Muslim. 

15. The applicant identified his fears in relation to Yemen on the basis of his Malaysian passport and being accused of being a Hezbollah or Iranian operative, or imputed with being a Shiite separatist, and claimed that he feared returning to Malaysia on the basis of his previous claims and then being deported to Yemen once the Malaysian authorities discovered his true identity. 

16. The Tribunal identified the applicant’s fears of returning to Yemen at the hearing attended by the applicant, which were based on his being a Shiite.  The Tribunal also explored with the applicant his reasons for leaving Yemen and going to Malaysia.  Materially, the Tribunal recorded:

    24. He was given his identity card and was issued a licence and a passport as normal.  He was married in 2012 in April but couldn’t remember the date.  He claimed he had a poor memory but had no medical evidence to support this.  He met his wife at college where students gathered together.  They had a child born 18 June 2013.  He had been married previously in Yemen but was divorced; he had no documents.

    …

    26. Asked why he couldn’t return to Malaysia given he had a range of legal documents, he claimed he had his own company and the person who gave him his citizenship had been asking for more money.  He was blackmailing him and said he would remove his citizenship.  He was asked why he hadn’t mentioned this before and he claimed he had and it had been written down before. 

    27. He had his own company and his partner didn’t know where the applicant was any more, and after a few months the partner went to the Yemeni Embassy and told them everything about what the applicant had done in getting Malaysian citizenship.  This was around February 2014; he was asked if he had mentioned this to anyone previously.  He claimed he had told this to his lawyer.

    …

    39. He claimed the Malaysian government would know he had fraudulently got Malaysian citizenship because he was known and his business partner had told everyone.  He also claimed that he followed Sayyid Badr al-Din al-Houthi, and it was put to him that al-Houthi was Zaydi and not Twelver.  He claimed that al-Houthi was Twelver and was asked to provide independent country information to support this. 

    40. In Yemen he would face harm because of religion and tribal issues.  He was asked why he would be targeted because the Houthis were in ascendancy at the moment.  He claimed the Saudis were killing everyone.  He was asked the areas where the Shi’a were being targeted in Yemen – he claimed he would be targeted because of his name.   Asked why a sadat was in [Y], he claimed they had moved from [Z] previously.

17. The Tribunal then turned to evaluate the claims and evidence of the applicant and relevantly found:

    42. The applicant arrived in Australia on a visitor’s visa on 11 August 2013.  He applied for a protection visa on 3 September 2013.  His nationality will be discussed below, however the Tribunal considers Malaysia to be the applicant’s country of reference. 

    43. The applicant is a 34 year old Sunni Yemeni who was born and lived in Yemen but had been resident in Malaysia since 2010.  He claimed that if he returned to Malaysia he would be persecuted because he was Shi’a and because he had fraudulently obtained his citizenship.  He also claimed that if he returned to Yemen he would be targeted by Sunni groups because he was Shi’a, and by the Beit Dawi tribe because of a dispute his family had with them.

    …

    45. I found the applicant’s evidence regarding his claims to lack credibility.  For reasons set out below I did not find the applicant to be a reliable, credible or truthful witness, and that he fabricated his entire claim in order to be granted a protection visa.   

    Applicant’s Credibility

    46. The applicant has demonstrated a willingness to fabricate claims and to lie under oath in order to support such claims, which illustrates his lack of credibility.  After submitting a statutory declaration that he had been born in Malaysia and was orphaned, and then denying under oath that he had ever been to Yemen, he subsequently submitted another statutory declaration in which he claimed that he was actually Yemeni and travelled to Malaysia in 2010 and was granted Malaysian citizenship after he paid a government official $100,000. 

    Applicant’s Nationality

    47. I am satisfied that the applicant is a citizen of Malaysia and his application will be assessed as such. In his initial protection visa application he claimed that he was a Malaysian citizen by birth, orphaned and raised by a Pakistani Shi‘a family.  He has admitted that he paid for citizenship, received an identity card and used this to legally obtain a passport and vehicle licence.  This indicates that the Malaysian bureaucratic system recognises him as a legitimate Malaysian citizen.

    48. Country information indicates that a ‘citizenship-for-votes’ project has operated for a number of years in Sabah, where the ruling coalition sought to give Malaysian citizenship to foreigners to bolster the electoral chances of the federal ruling party, as well as to increase the proportion of Muslims in the state. (source omitted) Exactly how and when the applicant received his citizenship cannot be accurately known, however I do not accept that he paid a senior government official USD 100,000 for it. 

18. The Tribunal then went on to find that the applicant was not a Shiite Muslim and relevantly found:

    62.    Although I have found that the applicant is a genuine Malaysian citizen, he has made claims against Yemen and they will be addressed for completeness’ sake.  I do not accept that the applicant would be targeted in Yemen for religious reasons.  He claimed that he would be targeted by the Sunnis because of his Shi’a identity, however I have found that he is not Shi’a but rather Sunni.

    63.    I also do not accept that the applicant would be targeted by the Beit Dawi tribe or that he had been targeted twice for kidnapping.  To begin with his accounts rely entirely on his own testimony and I have found that he lacks credibility.  I also find it lacks credibility that he would have travelled without his identity card and then, having been stopped at a checkpoint by the Beit Dawi tribe, the armed tribesmen would simply accept a paper vehicle registration document in someone else’s name as his true identity.  It is reasonable to expect that they would have subjected him to more detailed questioning and perhaps sought some means to corroborate his alleged identity if they were, as he claims, manning a checkpoint to look for those opposed to them such as the applicant’s family.

    64.    I also do not accept that he would suffer from increased religiously-motivated violence in Malaysia that has resulted from the Syrian conflict.  He provided no information that supported such a claim and, given that I have found the applicant to be a Sunni Muslim in Malaysia he is a member of the overwhelmingly mainstream branch of the religion, further calling into question the validity of such a claim. 

    65.    Having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.

    Complementary Protection

    66.    Because I do not accept that the applicant will have his Malaysian identity questioned or revoked, that he is or would be considered to be Shi’a, that he has ever been kidnapped or is involved in a dispute with the Beit Dawi tribe, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicant will suffer significant harm. 

    67.    As a consequence I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

    CONCLUDING PARAGRAPHS

    68.    For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

    69.    Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    70.    There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

19. In an attachment to the reasons the Tribunal set out the relevant law, and also made reference to the PAM3 Refugee and Humanitarian Complementary Protection Guidelines, to which regard was required under s.499.

20. Mr Williams counsel on behalf of the applicant, asserted in relation to the first ground advanced that there was an inconsistency in relation to the reference in para.3 to the applicant being a Sunni Yemeni, and the finding made that the applicant was a legitimate Malaysian citizen.  The Court was taken to the statutory declarations and the other identification material that was before the Tribunal, and in relation to ground 1 it was advanced that there was no logical basis for the finding that the applicant was a Malaysian citizen.

21. It was a question of fact for the Tribunal to determine the nationality of the applicant, and for the purpose of s.5(1), the receiving country which is defined to mean:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country to nationality – a country of his or her former habitual habitation, regardless of whether it would be possible to return the non-citizen to the country.

22. In relation to ground 1 the Tribunal identified that it accepted that the applicant had a legal passport, finding that the applicant had legally obtained a passport in Malaysia.  Mr Williams, counsel for the applicant, sought to argue that the obtaining of the passport was perpetrated by a fraud.  That fraud was alleged to have been founded on an alleged bribe paid to a government official in relation to the Malaysian citizenship.  It is clear that these were matters taken into account by the Tribunal, and in my opinion, it was open to the Tribunal to find that the applicant was a legitimate Malaysian citizen, and it was open to the Tribunal to find that he had legally obtained a passport in Malaysia.  Those findings cannot be said to be ones that lack an evident and intelligible justification.  Further, they are findings for which there was a logical basis, and indeed it was consistent with the claim being advanced by the applicant before the Tribunal. 

23. It is also the case that this was an applicant who had clearly lied to the Department, and the adverse credit findings made to the Tribunal were clearly open.  Further, as the first respondent pointed out, it was a matter for the Tribunal to evaluate what claims of the applicant it accepted or rejected.  In fact, the Tribunal accepted the applicant’s claim that he was a citizen of Malaysia but rejected the claims that he was a Shiite and found that the applicant was a Sunni.  Those adverse credit findings were clearly open on the material before the Tribunal. 

1. The real issue in relation to the adverse findings in respect of Malaysia being the receiving country turn on the argument by Mr Williams that the Tribunal did not determine that the receiving country solely by reference to the law of the relevant country, in this case being Malaysia. Mr Williams also sought to reinforce the alleged error in that regard by reference to the PAM3 guidelines and the distinction between the consideration of nationality and habitual residence that arises under the Convention and the definition of “receiving country” in s.5(1).

2. Where a finding is made that a person has legally obtained a passport, such as made in para.47 and rejection of the alleged fraud as made in para.52, in my opinion, the finding of receiving country complies with s.5(1). It is not necessary for the Tribunal to set out the law under which the passport has been issued. Having come to the finding that the applicant had been issued legally with a passport, it was clearly open to the Tribunal to find that the applicant was a legitimate Malaysian national and that Malaysia is the receiving country and country of reference for the assessment of the applicant’s claims. Indeed this is consistent with what was being propounded by the applicant. That finding cannot be said to lack an evident and intelligible justification and was open on the material before the Tribunal.

3. Mr Williams sought to reinforce the argument of error or jurisdictional error in relation to the Malaysian citizenship by saying that the reference to the applicant being born in Yemen and being a Sunni Yemeni meant that there was a claim or integer that the Tribunal had to assess on the material before the Tribunal relating to whether, as the delegate found, the applicant was in fact a citizen of Yemen. In that regard, Mr Williams again advanced the need to take into account the PAM3 guidelines in relation to the consideration of nationality under the Convention on one hand and the receiving country in relation to s.5(1).

4. It is clear that the risk of being returned to Yemen was a matter in respect of which the Tribunal had identified the applicant’s claims, and it was also clearly the case that the applicant was seeking to maintain that he was a citizen of Malaysia. Whilst there is no principle of estoppel or approbation and reprobation, the function of the Tribunal under s.425 is to conduct a review. That review is to be conducted on the claims made by the applicant or claims that are sufficiently manifest on the material before the Tribunal. The Tribunal properly addressed the claims by the applicant.

5. In this case it is clear that the claim that the Tribunal was required to assess was one where the applicant was maintaining that he was a citizen of Malaysia.  In circumstances where the Tribunal accepted that claim by the applicant and found that the applicant had a legally issued passport and as such was a legitimate Malaysian citizen, there was no requirement for the Tribunal to make findings in relation to the law of Yemen. 

6. Further in my opinion, it was open to the Tribunal upon the findings it had made to accept the applicant’s evidence, as the Tribunal did, that the applicant’s Yemeni citizenship had been revoked (see para.51). There was no suggestion that the applicant had made or wished to make an application to regain citizenship in Yemen under Article 15 of the Law No 6 of 1990 Concerning Yemeni Nationality. That the applicant’s citizenship in Yemen had been revoked and his fear of as a Shiite was the only claim advanced by the applicant in respect of Yemen. The Tribunal was not required to engage in an analysis of Yemeni law in relation to that revocation.  Mr Williams advanced that the revocation was merely an assertion or belief of the applicant and was not a proper basis upon which one could find that the citizenship had been revoked by a minister consistent with the law, as identified in the decision of the delegate.

7. I accept the first respondent’s submission that, having found that the applicant was a citizen of Malaysia, it was not necessary for the Tribunal to address Yemeni law. It is clear that the Tribunal took into account the applicant’s claims relating to a fear of revocation of the Malaysian citizenship and being refouled to Yemen.  Those are claims that the Tribunal rejected. 

8. The applicant contended that the question of whether there had been a withdrawal of that citizenship of Yemen should have been addressed and required a step by the Minister. Mr Williams submitted that there was no evidence as to the Minister taking any step in that regard. It is clear that s.5(1) in relation to the receiving country has application or is to be applied in the context of the facts as found by the Tribunal. It is clear in this case the Tribunal found that the applicant had Malaysian citizenship and it was not necessary for the Tribunal to further deliberate in relation to the issue of nationality or receiving country in relation to Yemen.

9. I should also note to the extent relevant that in relation to the finding in respect of the applicant being a Malaysian citizen there was also an identification of Malaysian law in para.57 of the Tribunal’s reasons.  In relation to the PAM3 guidelines I accept that the Tribunal had regard to those guidelines consistent with attachment A forming part of the Tribunal’s reasons. There is no jurisdictional error in relation to ground 1 set out relating to those guidelines.  I reject ground 1 as identifying any jurisdictional error. 

10. In relation to ground 2, it is clear the Tribunal dealt with the applicant’s claims.  I do not accept that there was a claim advanced by the applicant that was not dealt with by the Tribunal.  Counsel for the applicant accepted that the Beit Dawi tribe is in Yemen, and in light of the applicant’s alleged religion being of a Shiite being rejected by the Tribunal it was open to the Tribunal to make the finding that there was no well-founded fear of persecution in relation to Yemen as well as Malaysia.  Further, it is clear that the Tribunal rejected the applicant’s claims in relation to the fraudulent obtaining of citizenship at para.52. 

11. In relation to ground 3, I reject the proposition there is no evidence in relation to the adverse findings.  For the reasons I have given, the adverse findings in relation to the country of reference, nationality or habitual residence were open.  Insofar as ground 3 advances a criticism in relation to the adverse findings of credit those adverse findings of credit were open to the Tribunal on the material before the Tribunal.  Ground 3 is not made out. 

12. In relation to ground 4, I am not satisfied that there was relevant material that was not taken into account by the Tribunal, and ground 4 is not made out. Insofar as the applicant argued that the Tribunal was required to take further steps under s.427 in relation to either Yemen or Malaysia I do not accept that the Tribunal was required to do so. Nor was it unreasonable for the Tribunal, or in any way a denial of procedural fairness to take no further steps to contact Malaysian or Yemen authorities. There is no substance in the contention of a breach of s.427 of the Act.

13. For the reasons I have given I accept that the Tribunal took into account PAM3 guidelines and that there was no jurisdictional error relating to the PAM3 guidelines. I should note that even if contrary to the findings I have made there was a jurisdictional error in relation to the application of s.5(1) and/or the receiving country, nationality or habitual residence, that is not an error in the present case that could have had an impact in respect of the applicant because of the adverse findings by the Tribunal. Mr Williams suggested that there are other claims that might have been dealt with including the finding of citizenship and how he might have been treated in Malaysia and/or exposure to punishment.

14. In this case the applicant lied to the Department at the outset.  Whilst it is true that he partially admitted his lies in further material, he was found not to be a witness of truth, and the claims that he advanced were assessed not just in relation to Malaysia by the Tribunal, but were also addressed in relation to Yemen.  If in fact it was Yemen that was the receiving country the proposition of an erroneous finding of citizenship in relation to Malaysia does not give rise to a basis upon which it could be said that any jurisdictional error in this regard could have an impact on the applicant.  This is because the applicant was, in fact, found to be a Sunni not a Shiite. 

15. In these circumstances even if the applicant had made out a jurisdictional error of the kind alleged in the amended application this is a case where the Court is satisfied the alleged error could not have had any impact on the outcome for the applicant in the present case. This is because the Tribunal clearly assessing the applicant’s alleged fear in relation to Yemen as a country of reference or receiving country given that in fact the applicant was a Sunni and because of the comprehensive adverse credit findings by the applicant. Accordingly even if such a jurisdictional error was made out, in the present case I am satisfied that the alleged jurisdictional error could not have made any difference to the outcome and as a matter of discretion writs should not issue. The amended application is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  31 August 2015