BCS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCCA 3125
•31 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BCS18 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR | [2019] FCCA 3125 |
| Catchwords: MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal findings were open to it – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 423A, 424A, 424AA, 425, 474, 476 Treaties: |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | BCS18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 611 of 2018 |
| Judgment of: | Judge Emmett |
| Hearing date: | 31 October 2019 |
| Date of Last Submission: | 31 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 31 October 2019 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Solicitor for the Respondents: | Ms Charlotte Saunders (DLA Piper Australia) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 611 of 2018
| BCS18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 15 February 2018 (“the Tribunal”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 10 March 2017 refusing the applicant a protection visa.
The applicant is a citizen of Malaysia and of Chinese ethnicity, who fears harm from the authorities in Malaysia.
Background
On 1 December 2016, the applicant lodged an application for a protection visa with the Department of Home Affairs (“the Department”).
On 10 March 2017, the Delegate refused the applicant’s application for a protection visa.
On 1 April 2017, the applicant lodged an application for review of the Delegate’s decision with the Tribunal.
On 15 February 2018, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.
On 8 March 2018, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative Framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a protection visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite Applicant to appear
(1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The applicant’s application for a protection visa
The applicant provided a statement in support of his protection visa application which contained the following information:
i)He worked as a taxi driver since 1996.
ii)In September 2016, a police officer asked the applicant to drive him home from work. The applicant drove to his home and the police officer paid him. He asked the applicant to drive him from home to work on the following morning at 8:00am. The applicant did as the police officer asked and this continued for a few days.
iii)The police officer worked day and night shifts. The applicant did not want to continue his service and this made the police officer unhappy. The police officer did not pay the applicant for several trips. The applicant went to the police bureau and reported him to the boss. The boss said they needed to investigate.
iv)A few days later two policemen came to the applicant’s house when he was not at home. They told the applicant’s mother that the applicant must report to the police station within 12 hours, otherwise he would be arrested.
v)The applicant could not stay at home so he stayed at a friend’s home. He then went to Australia as soon as possible. The applicant cannot go back to Malaysia because the police would make trouble from him.
The Delegate’s decision
The Delegate noted that the applicant did not claim to fear harm in Malaysia as a result of his race, religion, nationality, political opinion or as a member of particular social group.
The Delegate discussed claims relating to threats made towards the applicant which were made by unnamed persons or parties. The Delegate found the applicant’s claims to be vague and lacking in detail and his fear of harm was of a criminal nature.
The Delegate considered the applicant’s claim that when he reported the non-payment of taxi fares by the police officer to the police he was then targeted by the police.
The Delegate had regard to country information on policing practises and corruption in Malaysia. Whilst the Delegate accepted that there were inadequacies in the policing practices in Malaysia, the Delegate found there to be no evidence to suggest that the Malaysian government would fail to provide the applicant with the same degree of protection as that afforded to any of its other nationals. The Delegate concluded the applicant would not face a real chance of persecution on account of his dispute with the policeman.
On 10 March 2017, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant was not a person to whom Australia had protection obligations under the Convention and did not meet the alternative complementary protection criterion.
The Tribunal’s decision
The Tribunal’s decision is accurately summarised in the submissions of the first respondent as follows:
“8. The AAT found that the applicant had presented claims and evidence at the AAT hearing which were inconsistent with the claims advanced in his written statement: [19]. The AAT was not satisfied that the applicant had a reasonable explanation for these inconsistencies and drew an inference unfavourable to the credibility of those claims and evidence: [22].
8.1 The AAT did not accept that the applicant did not know what was in his statement and what was missing from it before he submitted the form as the applicant confirmed at the hearing that his migration agent had read this back to him. The AAT also noted that the applicant confirmed at the hearing that everything in the statement was correct, yet his claims and evidence at the hearing contradicted what was in his statement. The AAT was of the view that this undermined the applicant's explanation that things he told his migration agent were not included or that he only left some details out: [21].
8.2 The AAT did not accept that the additional claims and evidence given at the hearing were the result of the applicant's migration agent not putting them in the statement, nor did it consider that the one or two months between the events and the statement to be a long period of time: [22].
9. Based on the above, and an accumulation of concerns with the applicant's evidence, the AAT concluded that the applicant's evidence was not truthful and it could not believe any of the information he had provided in relation to his claims: [23].
10. The AAT found that the inconsistencies between the applicant's statement and the hearing undermined the applicant's credibility generally, particularly in light of its findings that his explanations were not reasonable and the requisite adverse influence it drew about the credibility of the new evidence given at the hearing: [24]. Such inconsistencies included:
10.1 The applicant's statement said that the first time he picked up the police officer, he drove him home from work. At the hearing, the applicant gave two different statements, both that he drove the police officer to a shopping mall and that he drove him home: [25].
10.2 The applicant's statement said that the first time he drove the police officer, he asked the applicant to pick him up at 8:00 am the next day. At the hearing, the applicant claimed the police officer never told him what time to pick him up, he just called when he was ready: [26].
10.3 The applicant's statement said that the first time he drove the police officer was in September 2016 whereas, at the hearing, he claimed it was January 2016. The AAT was of the view that this difference, between a nine month ordeal and everything happening in the space of one month, was so substantial that it could not be explained by his being scared once he was safely in Australia: [27].
10.4 The applicant's statement said he picked up the police man for 'quite a few days' but at the hearing he told the AAT that it continued for seven to eight months: [28].
10.5 The applicant's statement said that he did not want to continue driving the police officer because he worked shift work. At the hearing, the applicant claimed that he did not continue working for the police officer because he would not pay, and the police officer became angry when he asked for the money and went to his boss. The AAT noted that the applicant did not mention shift work until prompted and later stated that when he made the payment, everything was good: [29].
10.6 The applicant's statement said that the police officer's boss told him he needed to investigate but, at the hearing, the applicant said his superior told him he would tell the police officer to pay: [30].
10.7 The applicant's statement said that it was only a few days from when he spoke to the police officer's boss that the incident causing him to flee occurred. At the hearing, the applicant at first stated that he could not remember when it had occurred, but later said it was within the month: [31].
11. The AAT found that the omissions from the applicant's statement and evidence given at the hearing undermined his credibility, particularly in light of its findings that his explanations were not reasonable and the requisite adverse influence it drew about the credibility of the new evidence given at the hearing, [32]. The omissions included:
11.1 The applicant's statement did not mention that he was threatened by the police officer at his house until the hearing. The AAT was of the view that such a pivotal claim would have been made at the first opportunity if it were true: [33].
11.2 At the hearing, the applicant did not mention his written claim that two police officers visited his house when he was not home and told his mother he was required to report to the police station within 12 hours or he would be arrested: [34].
11.3 At the hearing the applicant did not mention hiding at his friend's house until this was raised by the AAT, instead claiming he went straight from his home to the airport: [35].
12. The AAT also noted some minor inconsistencies and unlikely evidence provided by the applicant at the hearing, which it did not give a great deal of weight but which, in light of the other more noteworthy failings in his evidence, led to the AAT finding that the evidence was unlikely to be true and, hence, supported its adverse credibility finding, [36]-[40].
13. When the AAT's concerns were considered cumulatively, the AAT found that the applicant was not a credible witness and it did not believe he had been truthful about any of his claims regarding the police officer. The AAT therefore rejected all of his claims and found that the applicant did not have a real chance of any harm, let alone serious or significant harm, as required by s 5J(4)(b) and s 36(2A) in relation to any of his claims about the policeman: [41].
14. The AAT found that the applicant might face low level of discrimination in Malaysia for reasons of his race but did not accept that the government was depriving Chinese people of their rights and businesses. The AAT noted that there was no information before it which indicated that Chinese people suffered serious or significant harm in Malaysia merely because they are Chinese: [44].
15. The AAT found that the applicant had not suffered, and there was no real chance he would suffer, any serious or significant harm as a Chinese Malaysian: [45] and [48].
16. The AAT concluded that there was not a real chance that the applicant will suffer serious harm or persecution if returned to Malaysia, and that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed to Malaysia, there was a real risk the applicant would suffer significant harm: [48] and [51].”
The proceeding before this Court
The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.
On 29 March 2018, the applicant attended a directions hearing before a Registrar of this Court. The applicant was also given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support. The matter was stood over for callover on 13 June 2019. On that occasion, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
On 13 June 2019, the applicant was directed to file and serve written submissions in support of his application and the matter was set down for hearing today.
At the commencement of today’s hearing, the applicant confirmed that he has not filed any documents in support of his application and that he has no further documents to present to the Court this morning.
I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
The applicant confirmed that he relied on the ground contained in the Application, filed on 8 March 2018, as follows:
“1. The Tribunal finds some inconsistencies at the hearing then made its conclusion that I am not credible witness. Further, the Tribunal did not believe the claim both in the visa application and at the Tribunal’s hearing. This was wrong. At the hearing I was bit nervous and could not remember at the details happened a few year ago, such as the first time I picked up the policeman was from his work or not. And also I could not remember the time (date) of I drove him for the first time.”
(Errors in original)
The ground was interpreted for the applicant and he was invited to say whatever he wished in support of the ground or in support of his application generally.
The applicant said no more than could he appeal the decision of this Court, to which I answered, “Yes”.
The solicitor for the first respondent largely relied on written submissions, filed on 24 October 2019, which the applicant acknowledged he had received and seen.
The first respondent's solicitor contended that at the heart of the ground was a disagreement with the adverse credibility findings of the Tribunal, thereby inviting merits review which this Court cannot undertake. In short, I agree with that submission.
The Tribunal did not find the applicant to be a believable witness and rejected all his claims, including the applicant's claim of past harm or that he fears harm in relation to the policeman whom he said he drove for a short period in Malaysia.
The Tribunal did not accept that the applicant would be discriminated against as a Chinese Malay if returned based on country information before it. The Tribunal summarised the applicant's claims in his protection visa and also summarised various exchanges it had with the applicant at the Tribunal hearing.
The Tribunal had regard to s.423A of the Act in relation to late claims made by the applicant. However, ultimately the Tribunal was not satisfied that the explanations given by the applicant were reasonable, and, that in those circumstances, the Tribunal drew an inference unfavourable to the credibility of those claims and that evidence.
The Tribunal identified with great particularity the inconsistencies between the applicant's statement in support of his protection visa and his evidence to the Tribunal at the hearing. The Tribunal found that those inconsistencies undermined the applicant's credibility generally, particularly in light of its findings that his explanations were not reasonable.
The Tribunal acknowledged that some instances were minor and that the Tribunal did not give those concerns a great deal of weight in finding that the applicant was not credible. However, when viewed together, and in light of the more significant adverse credibility findings in the applicant's evidence found by the Tribunal, the Tribunal did not accept that the evidence was true and found, therefore, that it supported its adverse credibility findings.
The Tribunal, for example, found that the applicant gave very vague evidence about the threats from the policeman, gave inconsistent evidence about where he drove the policeman, gave unlikely evidence about whether he knew his customer was a policeman and gave vague and unlikely evidence about going to see the policeman’s superior.
Ultimately, the Tribunal concluded as follows:
“41. When all the Tribunal's concerns set out above are looked at cumulatively, the Tribunal finds that [the applicant] is not a credible witness. It does not believe he has been truthful about any of his claims regarding the policeman. As such it rejects that he had a regular customer who was a policeman and did not pay him for his services. It rejects that [the applicant] went to the policeman's supervisor about any debt. It rejects that the policeman threatened him or that two policemen came to his house. It rejects that he hid at his friend's house to avoid harm or that another taxi driver had his legs broken after going to a soldier's superior about an unpaid bill. It rejects the policeman has been to see [the applicant’s] wife. Further, the Tribunal rejects all [the applicant’s] claims of harm in the future that flow from any of his claims about the policeman and a debt. The Tribunal finds that [the applicant] does not have a real chance of any harm, let alone serious or significant harm as required by s.5J(4)(b) and s.36(2A), in relation to any of his claims about the policeman.”
In relation to the applicant's claim about racial discrimination generally, the Tribunal put to the applicant country information that indicated that while Chinese may be subjected to low-grade discrimination, such discrimination did not amount to serious or significant harm. The Tribunal again identified with specificity the country information upon which it relied. The Tribunal was prepared to accept that the applicant may feel discriminated against as a Chinese Malay and believe that he has suffered serious or significant harm in the past. It also accepted that he may have been subjected to low-level discrimination and may well suffer such similar discrimination in the future.
However, the Tribunal considered whether that discrimination would reach the level of extreme humiliation or other serious or significant harm, and, for the reasons that the Tribunal had already given, it found that the applicant had not suffered, and, that there was no real chance he will suffer any serious or significant harm as a Chinese Malay.
The Tribunal also considered whether the applicant met the complementary protection criterion and found that for the same reasons that he did not satisfy the Convention criteria in s.36(2)(a) of the Act, he did not satisfy the complementary protection criteria in s.36(2)(aa) of the Act.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. The Tribunal's findings were based on rational grounds and arrived at after considering factors that were logically probative of the issues of credibility. They were not tainted by any failure to afford procedural fairness and were not without an intelligible justification (see ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, 130-131 [83] per Griffiths, Perry, Bromwich JJ).
The applicant's complaints in the ground, as stated above, do not identify any jurisdictional error on the part of the Tribunal and appears more to be a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
There is no evidence before this Court or in the Tribunal's decision record of the applicant stating that he was nervous at the hearing or had any other difficulty. In the circumstances, the Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
Ultimately, the ground does not identify any jurisdictional error on the part of the Tribunal and none is evident on the face of the Tribunal's decision record.
Accordingly, the ground is not made out.
Conclusion
A fair reading of the Tribunal's decision record makes clear that the Tribunal understood the claims being made by the applicant and explored those claims with the applicant at a hearing. The Tribunal identified independent country information to which it had regard and put that information before the applicant.
The Tribunal then made findings based on the evidence and material before it, which, as stated above, were open to it for the reasons it gave. The Tribunal's decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal's decision is not affected by jurisdictional error and is, therefore, a privative clause decision. Accordingly, pursuant to section 474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Deputy Associate:
Date: 5 November 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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Natural Justice
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Procedural Fairness
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Jurisdiction
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