BGX16 v Minister for Immigration

[2019] FCCA 515

FEDERAL CIRCUIT COURT OF AUSTRALIA

BGX16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 515

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of a delegate of the Minister for Immigration and Border Protection not to grant to the Applicant a protection visa – contention that Administrative Appeals Tribunal did not consider or overlooked documents relied upon by the applicant – Administrative Appeals Tribunal did so consider but gave them no weight – weight that the Administrative Appeals Tribunal gives to the evidence before it is a matter for the determination of the Administrative Appeals Tribunal – ground not made out – no jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Migration Regulations 1994 (Cth)

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

SZFWB v Minister for Immigration and Citizenship [2007] FCA 167
SZQAU v Minister for Immigration & Citizenship [2011] FCA 1243

Applicant: BGX16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1329 of 2016

Judgment of: Judge Dowdy

Hearing date: 1 May 2018

Delivered at: Sydney

Delivered on: 11 March 2019

REPRESENTATION

The Applicant appeared
in person.

Counsel for the First Respondent: Mr J. McGovern

Solicitors for the First Respondent: Clayton Utz

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 26 May 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1329 of 2016

BGX16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of Malaysia aged 46 years, having been born on 27 January 1973.

2. By Application filed in this Court on 26 May 2016 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 28 April 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 7 October 2014 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa). 

Background

1. The Applicant had arrived in and departed from Australia on a number of occasions since 31 January 2013 prior to applying for the Protection visa on 10 February 2014. The history of his visits is as follows:

   a)he was issued offshore with an Electronic Travel Authority (Class UD) (Subclass 976) visa on 31 January 2013 and arrived in Australia on 12 February 2013;

   b)on 11 May 2013 he departed from Australia;

   c)on 11 June 2013 he re-arrived in Australia and departed again on 12 September 2013; and

   d)on 6 December 2013 he was issued with a further Electronic Travel Authority (Class UD) (Subclass 601) visa (ceasing on 6 March 2014) and entered Australia on the same day.

Claims for Protection

1. In his Protection visa application form the Applicant stated that he could speak, read and write the English and Malay languages and could also speak Tamil. In response to questions 43 to 48 in his Protection visa application form the Applicant advanced the following claims verbatim for protection, amended slightly for ease of understanding:

   a)he left Malaysia because false cases have been foisted against him by the Government of Malaysia and they are still pending as he is an active participant in the Hindu Rights Action Force (HINDRAF) and subsequently he joined the main opposition party Parti Keadilan Ragyeat (PKR). The Government of Malaysia is persecuting him instead of protecting him;

   b)he experienced harm in Malaysia by being kept in police custody on account of a false case;

   c)he feared going back because the Malaysian Government has instituted false cases due to his involvement in HINDRAF and being a member of the main opposition party PKR; as the false case is pending he feared that if we went back to Malaysia he would be apprehended at the airport or at any point of entry in Malaysia and taken into police custody and tortured both physically and mentally. Ultimately he would be killed by the police at the instance of the ruling party;

   d)he believed that he would be harmed or mistreated by authorities belonging to the Government of Malaysia, including the police and members of the Barisan Nasional ruling party;

   e)he believed that he would be harmed or mistreated because he was an active participant in HINDRAF and an active member of the main opposition party, namely PKR; and

   f)the authorities will not protect him because the Malaysian Government, at the instance of the ruling party is foisting false cases against him. In fact they have reopened a case on a false pretext which had been dismissed by the Court. As both the ruling party which is influential and the Malaysian Government which is omnipotent are against him, he will in no way be protected by the Malaysian Government authorities.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of a Protection visa can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]   The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to 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, is 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]   Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia 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; ....

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 1 October 2014.

2. The Delegate in his Decision Record recorded the Applicant’s written claims and evidence given by him at the interview and noted that there was no evidence beyond the assertions of the Applicant to substantiate his claims and that he had provided little information in his Protection visa application form and no real detail at the interview.

3. The Applicant claimed at the interview with the Delegate that the fraud case in 2006 or 2007 involving his then employer was dismissed, but had been re-opened in 2009 due to his involvement in HINDRAF.

4. The Delegate accepted that the Applicant had been employed in a marketing company in Malaysia which had been investigated for fraud in either 2006 or 2007 and that he may have been caught up in an investigation for fraud by reasons of employment. However the Delegate was of the view that there was no evidence from which it could be concluded that he was at risk of persecution in 2014 and that he had been working and living in Kuala Lumpur since 2008 with there being no evidence to suggest that he was of interest to the Malaysian authorities for any reason between 2008 and 2014.

5. The Delegate noted that on the basis of his own evidence the extent of the Applicant’s involvement in HINDRAF would appear to have been his attendance at a rally in November 2007, which he claimed had resulted in him being detained for 40 hours. However, the Delegate considered country information which indicated that whilst HINDRAF was a banned organisation for a period, such ban had been lifted in January 2013 and there was no evidence to indicate that membership of the PKR would draw the adverse attention of the Malaysian authorities.

6. The Delegate was also not satisfied that the Applicant’s fear of arrest amounted to a fear of harm that was serious enough to amount to significant harm for the purposes of the complementary protection criterion and accordingly the Delegate found that he was not satisfied that Australia had protection obligations to the Applicant under s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) and refused to grant the Protection visa to the Applicant.

Tribunal Decision

1. The Applicant lodged an application for merits review with the Tribunal on 27 October 2014 and gave a copy of the Decision Record of the Delegate to the Tribunal at that time. The Applicant appeared at a hearing before the Tribunal on 18 March 2016 to give evidence and present arguments.

2. At the hearing the Applicant submitted a statutory declaration declared by him on 17 March 2016, various medical reports and an untranslated Malaysian document dated 24 August 2005. The statutory declaration stated that he was a member of HINDRAF and participated in HINDRAF agitation in late 2007 and was apprehended by the police and later released after about 40 hours of detention, during which period he was manhandled, assaulted by the police, hit, punched and suffered severe pain in his arms and torso. He also stated that he wanted to put an end to the Malaysian Government’s sponsored discrimination against Tamils / Indian Hindus.

3. From [12] – [17] of its Decision Record the Tribunal recorded the Applicant’s background, visits to Australia and written claims.

4. At [17] of its Decision Record the Tribunal recorded that it had listened to the Applicant’s interview with the Delegate on 1 October 2014 and from [18] – [23] recorded the claims made by the Applicant in the interview with the Delegate. At [22] the Tribunal recorded that the Applicant had made a claim of discrimination based on his ethnicity.

5. From [24] – [36] of its Decision Record the Tribunal recorded its questioning of the Applicant at the Tribunal hearing and the claims made by the Applicant at the Tribunal hearing. At [26] the Tribunal recorded the documentary evidence which the Applicant had provided at the Tribunal hearing on 18 March 2016, including a copy of a largely untranslated Malaysian document dated 24 August 2005 stating that the Applicant “was wanted” by the Bureau of Serious Commercial Crime in Malaysia.

6. At [36] of its Decision Record the Tribunal put to the Applicant that there had been considerable delay between his first entering Australia and lodging his  Protection visa application.

7. At [37] of its Decision Record the Tribunal recorded that subsequent to the Tribunal hearing the Applicant had provided the Tribunal with the original and a translation of an Information Criminal Record Report printed out on 6 April 2016 from Kampong Tawas Police Station that referred to the Applicant as wanted in Malaysia in relation to an incident which had happened on 17 May 2004 and was reported on 8 April 2005. The Tribunal noted that this document included the Applicant’s name, ID number, race and then current age, but did not contain any description of the offence for which the Applicant claimed he was wanted.

8. The Tribunal set out its findings and reasoning from [38] – [66] of its Decision Record. It foreshadowed at [44] that it considered that the Applicant had deliberately embellished his evidence to create an impression that the Malaysian authorities had an adverse interest in him.

9. At [45] of its Decision Record the Tribunal placed weight on the length of time between the Applicant first entering Australia and the time he had lodged his Protection visa application and found that he had only applied for protection after he failed to find sponsorship for a work visa.

10. At [46] the Tribunal accepted that the Applicant had participated in HINDRAF protests in 2007, causing him to be arrested, detained and beaten while in police custody and then released. The Tribunal also noted that it accepted the Applicant’s evidence that he had never been arrested since 2007, nor had he suffered any physical mistreatment at the hands of the authorities since that time. At [49] the Tribunal also accepted that the Applicant had been arrested, detained and then released with charges dismissed in respect of fraud occurring at his workplace in either 2006 or 2007 and that the owner of his employer company had been successfully prosecuted and no one else in the company had been found guilty.

11. At [52] of its Decision Record the Tribunal recorded putting country information to the Applicant which indicated that even past active and high profile members of HINDRAF were no longer at risk of persecution, and noted at [54] that the Applicant had not provided any supporting  evidence that he was or is an active member of the PKR.

12. At [59] the Tribunal recorded that it placed no weight on the Information Criminal Record Report due to its lack of detail, including that there was no reference to the reason for which the Applicant was “wanted” and there was no indication that the case had been “re-opened”.

13. The ultimate findings of the Tribunal were recorded at [60] and [61], as follows:

    [60] The Tribunal is not satisfied that the applicant is of any adverse interest to the authorities for any actual or imputed activities of a political nature. The Tribunal is not satisfied that the applicant has provided credible supporting evidence that the arrest warrant issued for him in 2005 is current. The applicant himself told the Tribunal that the arrest warrant was issued due to involvement in fraud by the company for which he was employed at the time and that he was questioned and then released and told the case had been dismissed and he was no longer of interest in respect of that matter. The Tribunal had regard to the fact that the applicant remained in Malaysia for four years after he claims the arrest warrant was re-opened, at the same address. Furthermore, according to his own evidence the applicant sought (unsuccessfully) to open a business in his own name in 2009 or 2010 which indicates he did not fear discovery by the police at that time. The Tribunal considers that if the applicant genuinely feared he was at real risk of serious or significant harm from 2009 he would have sought to leave Malaysia earlier.

    [61]  The Tribunal finds the applicant’s evidence unpersuasive that he is known by authorities for working “behind the scenes" raising money to support the HINDRAF leaders arrested in 2007 and providing a meeting place for political activists. The applicant has not provided any supporting evidence which indicates that he has ever been an active member of HINDRAF or the PKR. The Tribunal is not satisfied that the applicant has had any profile in HINDRAF either at the time of the protests or since that time. Even if the Tribunal accepts that the applicant had some minor roles raising money or facilitating meetings after the protests, the Tribunal places more weight on country information as cited above that individuals with particular political affiliations are not at risk of persecution. The Tribunal is not satisfied that the applicant is known to have, or imputed to have political opinions that are of concern to the authorities in Malaysia or that he will engage in any political activities in the foreseeable future in Malaysia. The Tribunal is therefore not satisfied that there is a real risk or a real chance that the applicant would be arrested, killed or subject to torture if he returns to Malaysia now or in the foreseeable future.

14. At [64] of its Decision Record, under the heading Claims Related to Discrimination Against People of Indian Ethnicity / Hindu Religion in Malaysia, the Tribunal recorded that it had put to the Applicant that country information regarding Malaysia indicated that ethnic Indians constituted the third largest ethnic group in Malaysia, and there were no laws or constitutional provisions that directly discriminated against them, and that generally they do not experience discrimination or violence on a day to day basis.

15. In the result the Tribunal was not satisfied that the Applicant satisfied either the Refugees Convention criterion or the complementary protection criterion and affirmed the decision of the Delegate not to grant the Protection visa to the Applicant.

Grounds of Attack on Tribunal Decision in this Court

1. The Applicant relied upon the following verbatim Ground:

   1. The Tribunal failed to consider the evidence on record and has overlooked the evidence adduced and this resulted in miscarriage of justice and has vitiated the procedural fairness.

   Particulars

   The Tribunal in para 49 accepts that the applicant was arrested, detained and then released in respect of some fraud charges. The Tribunal in para 62 further accepts the applicant’s evidence that he was involved in the HINDRAF demonstration on Nov 2007 and he was detained for 40 hours and beaten during the detention. The applicant produced two documents which indicate that he continues to be on the “wanted” list and the Tribunal states that it places no weight on the ground that it does not bear a reference number. The documents are screen shots from the Malaysian police system and are authentic. Without disputing the authenticity or genuineness of the document to simply dismiss the evidence on the ground that it does not have a reference number when other details like the authority who maintains the document, date of issue, details of the person wanted etc are available, it is submitted that the finding is totally against the weight of evidence. It is also submitted that the Tribunal failed to consider the evidence adduced in relation to custodial death in Malaysian police in volition of human rights of individuals.

Consideration

1. The Ground in substance complains that the Tribunal failed to consider or overlooked two documents, namely the documents identified at [16] and [18] above and “evidence adduced in relation to custodial deaths”.

Document from Bureau of Serious Commercial Crime

1. As to the document dated 24 August 2005, the Tribunal identified that document in the last bullet point of [25] of its Decision Record. At [33] the Tribunal then records that it “put to him that this document was 11 years old and there was no indication that there was a current arrest warrant for him”. The Tribunal recorded that the Applicant acknowledged that he had no documents relating to him still being of interest to the authorities and the Tribunal noted that it provided the Applicant with additional time to see if he were able to get any relevant documents that were pertinent to his current situation.

2. The document is further referred to by the Tribunal at [49], [50], [57] and again at [60] where it stated that it was not satisfied “that the arrest warrant issued for him in 2005 is current”. In my view the Tribunal meaningfully considered the first document dated 24 August 2005 within the context of the Applicant’s claims and came to a view concerning its weight which is not legally unreasonable. There has been no failure by the Tribunal, in connection with this document, to afford procedural fairness to the Applicant, nor has there been a constructive failure to exercise jurisdiction by the Tribunal in overlooking or not considering it.

Information Criminal Record Report

1. The second document printed out on 6 April 2016 was identified and described at [37] of the Decision Record and further referred to at [58] and [59], at which latter paragraph the Tribunal recorded its finding that it placed no weight on the document “… due to the lack of detail, particularly as there is no reference to what the applicant is wanted for, there is no reference number and there is no indication that the case was ‘re-opened’”. Once again, in my view the Tribunal has meaningfully considered the second document.

Deaths of Former HINDRAF Members in Custody

1. This complaint also fails at a factual level.

2. First, at [35] of its Decision Record the Tribunal identifies the evidence provided by the Applicant to the Tribunal of deaths in police custody and went on to note that there was no indication that the people who died were former HINDRAF members, with which the Applicant is noted as having agreed.

3. At [52] the Tribunal records putting to the Applicant country information indicating that even past active and high profile members of HINDRAF were no longer at risk of persecution, and at [53] again refers to the Applicant’s claim that HINDRAF members had been taken into custody and died whilst in custody, and the Applicant’s claim that this would happen to him.

4. However, in the final paragraph of [53] the Tribunal stated that it placed no weight on these cases of deaths in custody “as there is no evidence that the people arrested were former members of HINDRAF or that they had any association with the Applicant at all”.

5. In my view, the Tribunal meaningfully considered the claim of the Applicant with respect to deaths in custody.

6. Otherwise, the Ground seeks to invoke a merits review of the findings of the Tribunal. It is well-established that the choice and interpretation of country information, including the weight that the Tribunal gives to such information, is part of the fact finding function of the Tribunal. Further, the weight that the Tribunal gives to the evidence before it is a matter for the determination of the Tribunal: see SZFWB v Minister for Immigration & Citizenship [2007] FCA 167 per Kenny J at [42] and SZQAU v Minister for Immigration & Citizenship [2011] FCA 1243 at [13] where Flick J said:

   [13]The making of findings of fact, and the weight to be given to the evidence in the course of making those findings, are matters entrusted to the Tribunal alone.

Conclusion

1. Accordingly, in my view the Ground relied upon by the Applicant fails to establish that the decision of the Tribunal is affected by jurisdictional error and accordingly the Application is to be dismissed.

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

Date: 11 March 2019