BFP17 v Minister for Immigration

[2018] FCCA 1178

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFP17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1178

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant a protection visa – whether it was reasonably open to the Tribunal to take into account as relevant to the credibility of the applicant’s claim that he omitted to state in oral evidence given before the Tribunal a claim the applicant made in his application for a Protection visa – whether it was reasonably open to the Tribunal to rely on the applicant’s delay in applying for a Protection visa as a reason for not accepting the credibility of the applicant’s claims for protection – whether it was reasonably open to the Tribunal to rely on country information as a reason for not accepting the credibility of the applicant’s claims – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.36(2)

Applicant: BFP17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 858 of 2017

Judgment of: Judge Manousaridis

Hearing date: 24 April 2018

Date of Last Submission: 24 April 2018

Delivered at: Sydney

Delivered on: 11 May 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitor for the First Respondent: Ms A Zinn of Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 858 of 2017

BFP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Malaysia, seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Protection (Class XA)(subclass 866) visa (Protection visa).

Claims for Protection

1. In a personal statement accompanying his application for a Protection visa, the applicant claimed he was concerned about Malaysia’s future. He and many of his friends had been unsatisfied with the Malaysian government. Because they “made advice” to the government, they were persecuted. Many opponents were arrested and killed. At the beginning of 2013 the applicant and a few of his friends were concerned about the political situation in Malaysia. On 2 September 2014 the applicant and his friends organised a protest. The applicant spoke “in front of the Government” during which he made statements critical of the Prime Minister of Malaysia, and many onlookers expressed their support. The Government “got angry” and, on 8 September 2014, began to arrest protesters. The applicant went into hiding immediately after he became aware of this.

2. The applicant further claimed that a fellow protester was arrested, sent to a detention centre, struck in the face by police, placed in solitary confinement, and was later beaten. The police went to the applicant’s house several times looking for him. The applicant had regular contact with his friends, and advised them to put pressure on the government. In early 2016 many protesters were followed, monitored, and harassed. They were unable to live a normal life. The applicant referred to a young couple whom the police had tried to arrest.

3. Before the Tribunal the applicant said that the protest he and his friends organised involved 20 to 30 people protesting outside the front of a government building, but he did not know the name of that building.[1]

   [1] CB91, [7]

The Tribunal’s Reasons

1. The Tribunal did not accept any of the applicant’s claims other than that he is a citizen of Malaysia:

   a)The Tribunal considered that the applicant’s oral evidence was vague, unpersuasive, and inconsistent with his written claims. The applicant was able to give only limited details of the demonstration, including about the government building in front of which he claims to have protested. 

   b)The Tribunal found the applicant’s evidence regarding the actions of the demonstrators to be limited, and formed the view that the applicant was not speaking from his own experiences, but was instead attempting to recall the claims he had made in his statement.

   c)In his written statement the applicant indicated that he and his friends organised the demonstration. During the hearing, on the other hand, the applicant indicated that his friend was the main organiser.

   d)The applicant failed to mention in his oral evidence before the Tribunal the claim he made in his written statement that he spoke “in front of the government” about the Prime Minister of Malaysia and his perceptions regarding corruption and the inadequacies of the Malaysian political system.

   e)The Tribunal did not accept the applicant’s explanation for the inconsistencies or limited nature of his evidence regarding the demonstration. It considered this indicated the applicant fabricated his claims to have been involved in a demonstration which resulted in him going into hiding from the police and fleeing Malaysia.

   f)The Tribunal found that other aspects of the applicant’s claims are not consistent with the independent evidence regarding the treatment of protestors in Malaysia. The Tribunal was not satisfied that independent evidence supported the applicant’s claims that a small, peaceful political protest in which he had a minor role resulted in the applicant’s friend being arrested and detained for over two years and also resulted in the police seeking the applicant. The Tribunal found this also indicated the applicant fabricated his claims.

   g)The Tribunal found the applicant’s delay in applying for a Protection visa also indicated the applicant fabricated his claims. The Tribunal did not accept the applicant’s explanation for the delay.

2. The Tribunal, therefore, was not satisfied the applicant has a well-founded fear of persecution for reasons of his race, religion, nationality, membership of a particular social group, or his political opinion, if he returns to Malaysia now or in the reasonably foreseeable future, and therefore was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Migration Act 1958 (Cth) (Act). The Tribunal was also not satisfied that there are substantial grounds for believing as a necessary and foreseeable consequence of him being removed from Australia to Malaysia that there is a real risk the applicant will suffer significant harm; and, for that reason, the applicant did not satisfy the criterion prescribed by s.36(2)(aa) of Act.

Grounds of application

1. The grounds of application are as follows (errors in original):

   1. AAT asked me what we shouted in front of the government building, I had wrote the part that I remembered most clearly and complete in my statement, but he still asked me what else we shouted, I replied that I did not remember it clearly for a long time. But the Tribunal regarded that my explanation was inconsistent, they even doubted the reliability of what I said as well as I did not join in the demonstration. It totally makes no sense, how many people in the world could remember clearly what they said two years ago?

   2. It is impenetrable that AAT doubts the reliability of what I said. AAT asked me the reason that I came to Sydney in December 2014, but lodged the application in March 2016. I replied that I did not realized that my three month visa expired, I really found out about protection visas through a tenant of my landlord, then I started to apply for protection. Since I was still negatively affected by my friend’s persecution, at the same time, I learned to adapt to live normally here since I came to Australia shortly. I really did not know how much effect the visa could have on me. After all, I just wanted to find ways to protect me, I thought I would be safe once I came to Australia. However, AAT did not believe what I said, he has never considered questions standing on the position on a persecution.

   3. AAT considered our demonstration were permitted in Malaysia and my friends and I were not persecuted by the Malaysian government only because there are only 20 to 30 people involved in our demonstration. The Tribunal does not notice that there are numerous demonstrations in Malaysia, not all demonstrations are permitted by the government, not all government officials work according to the law. It is well known that the Malaysian government is extremely corrupt, even a mere officer could do whatever he want in front of common people. AAT does not understand national conditions of Malaysia and claimed that my friends were not arrest, which is out of all reason.

2. The applicant, who is not legally represented, made two statements. The first is that he wished to apply for a tax file number. The second related to the Tribunal’s findings that the applicant had fabricated his claims. The applicant said it has been a long time since what he experienced had occurred.

3. The first ground stated in the application appears to be directed to the Tribunal’s relying on the applicant’s not mentioning in his oral evidence the claim he made in his written statement that he spoke “in front of the government”, the Tribunal’s not accepting the explanation the applicant gave to the Tribunal when asked why he had omitted to refer to that in his oral evidence before the Tribunal, and the Tribunal’s relying on the applicant’s not remembering what he and his fellow protesters had shouted to the government other than shouting about corruption.[2] Ground 1 claims it made no sense for the Tribunal to have relied on these matters for not accepting the credibility of the applicant’s claims.

   [2] CB91, [9]

4. I take ground 1 to be a claim that it was not reasonably open to the Tribunal to rely on these matters for not accepting the credibility of the applicant’s claims. In my opinion it was reasonably open for the Tribunal to take into account these matters. The claim the applicant made in his written statement that he “spoke in front of the Government” could reasonably be considered to be an important element of the applicant’s claim for protection; and that the failure by the applicant to mention such claim in his oral evidence was a reason on the basis of which it was reasonably open to the Tribunal to conclude the claim was not credible. It was also reasonably open to the Tribunal not to accept as credible the explanation the applicant gave for not having mentioned this part of his written claims, namely, that “the had all shouted all together about corruption” and the applicant could not remember what was shouted.[3]

   [3] CB91, [9]

5. Ground 1 may also be taken to claim that the Tribunal assumed the applicant would be expected to recall events years after the event occurred, and the Tribunal acted unreasonably by relying on that assumption. In the circumstances of this case, it was reasonably open to the Tribunal to expect that, had the event the applicant claimed occurred did occur, the applicant would have been in a position to give evidence about the event that was not vague and inconsistent.[4]

   [4] CB91, [9]

6. Ground 1, therefore, fails.

7. Ground 2 appears to be directed to the Tribunal’s relying on the applicant’s delay in lodging his application for a Protection visa and its not accepting the applicant’s explanation for the delay. This ground goes no further than expressing disagreement with the Tribunal’s relying on the applicant’s delay and discloses no jurisdictional error. It was reasonably open to the Tribunal to rely on the applicant’s delay in applying for a Protection visa as a reason for not considering the applicant’s claim for protection to be credible; and for it not to accept the applicant’s explanation for the delay. Further, ground 2 relies on matters that explain the applicant’s delay in applying for a Protection visa which, on the basis of the Tribunal’s reasons for decision, it appears the applicant did not raise before the Tribunal.[5] That the Tribunal did not take into account matters that were not before it does not disclose any jurisdictional error by the Tribunal.

   [5] CB92, [13]

8. Ground 2, therefore, also fails.

9. Ground 3 is directed to the Tribunal’s conclusion that, based on “independent information referred to by the delegate”, it is not satisfied that a small, peaceful political protest in which the applicant claimed he had only a minor role, resulted in the applicant’s friend being arrested and detained for over two years and also resulted in the police seeking the applicant by coming to his home looking for him.[6] Ground 3 goes no further than expressing disagreement with the Tribunal’s conclusion by asserting that the Tribunal did not notice that not all demonstrations in Malaysia are permitted by the government; that not all government officials work according to the law; that it is well known that the Malaysian government is extremely corrupt; that even a mere officer could do whatever he wants to do in front of common people; and that the Tribunal does not understand national conditions of Malaysia.

   [6] CB92, [12]

10. The applicant’s expression of disagreement with this part of the Tribunal’s decision does not disclose any jurisdictional error. The “independent information referred to by the delegate” on which the Tribunal relied included a report from the Department of Foreign Affairs report on Malaysia, which states that the political environment in Malaysia is robust and “many political rallies are held in Malaysia without incident or interference”.[7] It was reasonably open to the Tribunal to refer to this report and, in particular, the conclusion of the report which it set out in its reasons, as a reason for not being satisfied that the applicant’s claims are credible.

    [7] CB92, [11]

11. Ground 3 also fails.

12. Finally, I refer to the statement the applicant made at the hearing before me relating to the Tribunal’s findings that the applicant had fabricated his claims, namely, that it had been a long time since the applicant experienced what had occurred. This does not disclose any jurisdictional error by the Tribunal because it is an attempt to explain aspects of the evidence the applicant gave on which the Tribunal relied for not accepting the applicant’s evidence to be credible.

Conclusion and disposition

1. The applicant has failed on each of the grounds on which he relies. I propose, therefore, to order that the application be dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  11 May 2018