Beo16 v Minister for Immigration
[2020] FCCA 1102
•13 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEO16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1102 |
| Catchwords: MIGRATION – Protection (Class XA) visa – decision of the Administrative Appeals Tribunal – where Tribunal rejected claims on the basis of credibility – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510 |
| Applicant: | BEO16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1027 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 6 December 2018 |
| Date of Last Submission: | 6 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 13 May 2020 |
REPRESENTATION
| The Applicant: | In person with the assistance of an interpreter |
| Solicitors for the Respondents: | Clayton Utz |
| The Second Respondent: | Submitting appearance, save as to costs |
ORDERS
The name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Applicant’s application filed on 18 May 2016 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1027 of 2016
| BEO16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an application filed on 18 May 2016, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 19 April 2016.
The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) to refuse to grant the Applicant a Protection (Class XA) visa (Visa).
These proceedings are brought pursuant to s.476 of the Migration Act 1958 (Cth) (Act). To obtain assistance from this Court, the Applicant must show that the Tribunal has fallen into jurisdictional error.
Background
The Applicant is a Malaysian citizen.
On 6 May 2015, the Applicant lodged an application for the Visa[1]. The Applicant’s claims for protection (as raised in his Visa application) can be summarised as follows[2]:
a)He feared for his life.
b)He had borrowed money from a ‘Malay politic guy’ who charged him high interest that he was unable to afford to repay. When the Applicant questioned him he used his power to bankrupt the Applicant’s business because the Applicant was an Indian. The Applicant was then threatened by the Malay politic guy to do an illegal job for him and he was ‘whacked’ by police officers for going against him.
c)The Applicant fears that if he returns to Malaysia, the Malay politic guy or the authorities will torture him or kill him.
d)The Applicant was unable to seek help because the Malay politic guy would use his power to threaten him and kill him, and the authorities would not be able to help him because ‘politics can cover up with bribes’.
e)The Applicant could not relocate within Malaysia because the politic guy would be able to find him.
[1] Court Book (CB) 1-41.
[2] CB 35-37.
On 25 September 2015, the Delegate notified the Applicant[3] of her decision to refuse to grant the Visa on the basis that the Applicant did not satisfy the criteria for the grant of the Visa under ss.36(2)(a) or 36(2)(aa) of the Act (Delegate’s Decision)[4]. After considering the Applicant’s claims and relevant country information, the Delegate was not satisfied that the Applicant was a person to whom Australia had protection obligations.
[3] CB 54-70.
[4] CB 61-69.
The Applicant sought review of the Delegate’s Decision at the Tribunal on 23 October 2015[5].
[5] CB 71-72.
The Tribunal sent a letter to the Applicant dated 10 March 2016 inviting him to appear before it at a hearing on 18 April 2016[6].
[6] CB 82-91.
On 18 April 2016, the Applicant attended the Tribunal hearing, assisted by an interpreter[7].
[7] CB 92-95.
On 19 April 2016, the Tribunal affirmed the Delegate’s Decision not to grant the Applicant the Visa[8] (Tribunal’s Decision).
[8] CB 120-125.
Tribunal’s Decision
The Tribunal’s Decision appears at pages 120-125 of the Court Book.
The Tribunal set out the relevant law and background at [3]-[8] of its decision[9]. The Tribunal then summarised the Applicant’s claims as follows[10]:
[… The Applicant] was born in […] Malaysia. He arrived in Australia in December 2014 on a visitor visa that allowed a three month stay in Australia. He had his own business but due to some financial issues he borrowed money from a Malay politic guy. When he couldn't afford to pay, this guy used his power to make his business go bankrupt. The guy threatened him to do an illegal job and the applicant was whacked by the police for going against him.
[9] CB 121-122.
[10] CB 122, at [9].
In relation to these claims the Tribunal stated that it did not consider the Applicant a credible witness for the following reasons[11]:
·The applicant told the Tribunal that everything in his protection visa application was true and correct and in the application form and in the hearing he stated he speaks, reads and writes English. However, the applicant gave significantly and fundamentally inconsistent evidence concerning his claims. The applicant told the Tribunal that he had not had any problems with the police; however in his application he stated that he was whacked by police officers for going against the Malay money lender and again stated he "whacked severally by the police officers for going against him". The applicant commented at the hearing that this must have been a mistake and he thought of going to the police but they wouldn't help him because they were Malay. I have considered his explanation but I do not accept it, given he stated twice that he was whacked by the police and that he speaks, reads and writes English. I find this inconsistency significantly detracts from his credibility.
·The applicant said he did not go to the police because they were Malay and would not help him and that Malays can be bribed and they all work for each other. However, the Australian Department of Foreign Affairs and Trade (DFAT) have stated that whilst the quality of Malaysian police responses varies depending on levels of training, capacity or engagement in corruption, credible local and international sources consider the Malaysian police to be a professional and effective police force. I have given considerable weight to this source as it is authoritative, recent and they have been charged with the provision of advice to the Australian government. Illegal money lending or loan sharking, colloquially known as 'Ah Long' in Malaysia, is also an offense under Section 5(2) of the Moneylenders Act 1951. If prosecuted, a fine of not less than RM20,000 and not exceeding RM100,000 or imprisonment of up to five years can apply. Furthermore, a range of country information indicates that Malaysian police have taken action against loan sharks in recent years. I do not consider it plausible or credible that the applicant would not have sought the assistance of the police given the overall weight of this country information and given the threats that he says experienced and I find this detracts from his credibility.
·The applicant told the Tribunal he arrived in Australia on 7 December 2014 on a three month visa and that he did not have a visa after that until applying for protection. However he did not apply for a protection visa until 7 May 2015 and after a period of being unlawful for three months. The applicant commented that he first went to Queensland and he did not know about these processes until they were later explained to him by Australians who he had rented from. However, the applicant speaks, reads and writes English and I consider this delay further detracts from his credibility.
(Citations removed)
[11] CB 122-124, at [11].
Having outlined its concerns about the Applicant’s credibility the Tribunal stated that it did not accept any of the Applicant’s claims and found that the Applicant was not a person in respect of whom Australia had protection obligations under ss.36(2)(a) or 36(2)(aa) of the Act[12].
[12] CB 124, at [15]-[16].
Judicial Review Application
The Applicant filed his judicial review application on 18 May 2016 (Application). The Application contained three grounds of review, as follows:
1. I could not getting a supporting documents to provide to tribunal.
2. if I go back to Malaysia police will catch me and will revenge me.
3. Tribunal member was not believe that loan shark got relationship with police.
(Without alteration)
The Applicant’s affidavit, which was filed with the Application on 18 May 2016 (Applicant’s Affidavit), also sets out the following:
1. I was not received any supporting documents at the time of my hearing.
2.I need a chance to review my case.
(Without alteration)
At the hearing, the Applicant appeared before the Court without legal representation. He was assisted by an interpreter. The Applicant made only two submissions to the Court. The first was that all of his problems were “verbal problems” so that is why he did not have any documentary proof. His second submission was that he will be in danger if he returns to Malaysia.
Both of these submissions fail to identify any error. They were directed to the merits of the Applicant’s claims for protection. The Court cannot embark on merits review. It is restricted to determining if there is jurisdictional error in the Tribunal’s decision.
Consideration
Ground 1
Ground 1 of the Application and the first paragraph of the Applicant’s Affidavit appear to assert the same thing. They provide as follows:
1. I could not getting a supporting documents to provide to the tribunal[13].
1. I was not received any supporting documents at the time of my hearing[14].
[13] Ground 1, Application, CB 114.
[14] Applicant’s Affidavit, CB 118.
To the extent the Applicant’s oral submission to the Court was that he did not have any documents because his problems were “verbal”, this somewhat contradicts the first paragraph of the Applicant’s Affidavit that he did not “receive” any supporting documents in time for the hearing.
Nevertheless, the basis of the Applicant’s assertion appears to be that he was unable to provide supporting documents to the Tribunal in support of his claim. To the extent that this may be suggesting that the Applicant was not given notice he was required to provide supporting documents, the Court notes as follows:
a)It is for the Applicant to advance evidence and arguments in support of his claims[15].
b)In the Delegate’s Decision, the Delegate noted that it would be expected that if a person “genuinely feared being harmed” they would, at least, submit as much documentary evidence as possible to support their claims[16]. The Applicant can therefore be taken to be on notice that providing supporting documents, or at least an explanation why there were none, was important.
c)The Tribunal indicated to the Applicant as early as 27 October 2015 that if he “wished to provide material or written arguments” he should do so as soon as possible[17]. Therefore, to the extent the Applicant claimed he did not “receive” the documents at the time of the hearing, he had five months to arrange for such documents prior to the hearing.
d)The Tribunal’s invitation for the Applicant to attend the hearing indicated it could not make a positive decision on the “material” before it[18]. This implies that more evidence was needed. The Applicant was sent the invitation to the hearing over one month prior to the hearing. Again this was sufficient notice for him to “receive” any documents.
e)At no time during the hearing does it appear that the Applicant raised with the Tribunal that he had supporting documents (though had not received them). Nor is there any indication that the Applicant indicated to the Tribunal why he could not obtain supporting document (as he suggested in his oral submissions was because his problems were “verbal”). Finally, the Tribunal does not make any reference to the lack of supporting documents or corroborative evidence at all in its decision.
[15] Abebe v The Commonwealth (1999) 197 CLR 510 at 187
[16] CB 66.
[17] CB 75.
[18] CB 83.
The Applicant was provided a number of opportunities to provide supporting documents (if he had them). He also had the opportunity to explain why he did not have any supporting documents (if that was the case). It was the Applicant’s responsibility to advance his claims and evidence. That he was unable to provide supporting documents does not amount to any jurisdictional error on the Tribunal’s part. This is particularly in circumstances where supporting documents does not appear to have been a consideration of the Tribunal or to have been raised at any time by the Applicant.
Ground 1 is dismissed, and to the extent paragraph [1] of the Applicant’s Affidavit constitutes a ground of review it is also dismissed.
Ground 2
Ground 2 is no more than a plea for impermissible merits review[19]. It is not for this Court to consider whether if the Applicant goes back to Malaysia, the Police will catch him and take revenge.
[19] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Ground 2 is dismissed.
Ground 3
On one view, ground 3 is the Applicant expressing disagreement with the Tribunal disbelieving his claim.
On a beneficial reading, the Applicant may be suggesting that the Tribunal’s disbelief, based on its assessment of his credibility, was erroneous. It is true that the Tribunal entirely rejected the Applicant’s claims on the basis of its significant concerns about the Applicant’s credibility.
While credibility findings are generally a matter for the Tribunal, they are not immune from scrutiny on judicial review. For example, where the credibility of an applicant is diminished on the basis of a minor fact, and this then founds the entire rejection of a claim, the Tribunal may have fallen into error[20].
[20] SZSHV v Minister for Immigration & Border Protection [2014] FCA 253.
Here, the Tribunal’s credibility concerns were based on:
a)The Applicant’s significant and fundamentally inconsistent evidence concerning his claim[21].
b)The inconsistency between the Applicant’s claims and what was reflected in the country information[22].
c)The delay in the Applicant seeking protection[23].
d)The explanations for the inconsistency and the delay, in light of the Applicant’s evidence he speaks, reads and writes English, were not accepted[24].
[21] CB122-123, at [11].
[22] CB 122, at [11].
[23] CB 123, at [11].
[24] CB 123, at [11].
It is evident that the Tribunal’s credibility concerns were not based on “objectively minor facts”. Rather, it was based on a number of discrete concerns all of which had the effect of undermining the Applicant’s evidence and claims when considered as a whole. Further, the credibility concerns were logical and reasonable. They were based on clear discrepancies in the Applicant’s evidence that he could not adequately explain. There was nothing in the credibility findings that was illogical or unreasonable.
Finally, to the extent “supporting documents” may be relevant to this ground. Again, it was for the Applicant to advance such documents or explain why he could not obtain any. He does not appear to have done so. The Tribunal did not rely on the absence of supporting documents in any event. The concerns were entirely derived from the Applicant’s own evidence and the inconsistencies between that evidence.
There is no error in the Tribunal not “believing” the Applicant.
Ground 3 is dismissed.
Applicant’s Affidavit
The Court has already addressed the first paragraph of the Applicant’s Affidavit when addressing ground 1. As for the second paragraph of the Applicant’s Affidavit, the Applicant had a chance to “review” his case at the Tribunal. He was unsuccessful at that review.
If the Applicant is suggesting he wants a chance for judicial “review”, the Court has considered the grounds of his application and is not satisfied that there is any identifiable jurisdictional error. The Court has reviewed the Tribunal’s Decision itself and cannot identify any jurisdictional error on its face.
The Court notes that the Minister’s submissions dated 22 November 2018 make broad submissions (noting the Applicant’s grounds of review were difficult to address) relating to the Tribunal’s application of the law, consideration of the Applicant’s claims and procedural fairness. The Court agrees with those submissions.
Conclusion
The Court is not satisfied that the Applicant has identified any jurisdictional error. The Court has reviewed the materials and is not satisfied that any jurisdictional error arises on the face of the Tribunal’s Decision.
The Minister sought the sum of $7,467 for costs. This is in accordance with the costs allowed in Part 3, Division 1 of Schedule 1 of the Federal Circuit Court Rules 2001 (Cth), applicable at the time of the hearing. An Order will accordingly be made that the Applicant pay the Minister’s costs fixed in the sum of $7,647.
The Applicant’s application is dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 13 May 2020
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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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