BHK17 v Minister for Immigration

[2017] FCCA 2794

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHK17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2794

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugee Division) – protection visa – whether the Tribunal failed to properly consider the applicants' evidence – whether the Tribunal failed to consider an integer of the applicants' claims – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 476

First Applicant: BHK17

Second Applicant: BHL17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 923 of 2017

Judgment of: Judge Street

Hearing date: 15 November 2017

Date of Last Submission: 15 November 2017

Delivered at: Sydney

Delivered on: 15 November 2017

REPRESENTATION

Solicitors for the Applicant: The first applicant appeared in person.

Solicitors for the Respondents: Ms S He
Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 923 of 2017

BHK17

First Applicant

BHL17

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 28 February 2017 affirming a decision of the delegate not to grant the applicants protection visas. The applicants were found to be citizens of Malaysia and their claims were assessed against that country. The first applicant is the partner of the second applicant who was included as a member of the family unit. The applicants arrived in Australia on 20 June 2015 on Subclass 601 Electronic Travel Authority visas. After those visas expired, it was not until 26 April 2016 that the applicants applied for a protection visa.

2. The applicants claim to fear harm by reason of being Ethnic Chinese and as a result of having owned a business in Malaysia where it was alleged they were unable to continue the business due to harassment from local Malays who victimise Ethnic Chinese business owners and by reason of alleged problems with the police and being accused of carrying on a prostitution business and having their licence revoked.

3. On 17 June 2016, the delegate found the applicants failed to meet the criteria for the grant of a protection visa.

The Tribunal’s Decision

1. On 9 July 2016, the applicants applied for review. By letter dated 31 January 2017, the applicants were invited to attend a hearing on 24 February 2017. The first applicant attended the hearing to give evidence and present arguments.

2. The Tribunal, in its decision dated 28 February 2017, identified the background to the review application and set out the relevant law in an attachment incorporated into the reasons of the Tribunal. The Tribunal summarised the applicants’ claims and evidence. The Tribunal expressly raised with the first applicants the delay in the lodgement of the application for protection and the applicants were aware their visas were for only three months. The Tribunal did not accept that Malay men connected to the sons of government officers assaulted the first applicant, the first applicant’s shop was accused of being a brothel resulting in the closure of the business and the first applicant’s detention for two or three days, which the first applicant claimed resulted in him and the second applicant leaving their child in Malaysia because they feared harm.

3. The Tribunal considered that the first applicant’s account of his actions and those of the police following the incident were not credible and were inconsistent with the independent evidence regarding the police and the judicial system in Malaysia. The Tribunal found the applicant had not, in fact, been accused of operating an illegal brothel and that he was not held for any period of time. The Tribunal found the first applicant’s evidence was indicative of the fact that he was not recalling his own experiences, but was instead recalling his rehearsed claims as set out in his statement.

4. The Tribunal found the delay in the lodgement of the application following the applicants’ arrival in Australia further indicative of the fact that the claims have been fabricated. The Tribunal observed that the first applicant and the second applicant allowed themselves to become unlawful non-citizens in Australia and took several months before they lodged the protection application. The Tribunal found the delay in the lodgement of the application combined with the problematic aspects of the first applicant’s evidence is indicative of the fact that the first applicant and the second applicant had manufactured their claims.

5. The Tribunal did not accept that Malay men assaulted the first applicant or his wife or that he was treated in hospital or that the police refused to take complaints and accused him of operating a brothel. The Tribunal did not accept the applicant was detained or charged or that he genuinely fears harm from Malay men or any other persons in connection with the closure of his business. The Tribunal accepted that the applicants had a hairdressing business that was closed, but did not accept it was due to the reasons claimed.

6. The Tribunal accepted that upon return to Malaysia, the applicants may experience some low-level discrimination because they are Ethnic Chinese. The Tribunal took into account country information and was not satisfied there is a real chance that any discrimination the applicants encounter upon their return to Malaysia would amount to serious harm or a real risk it would amount to significant harm. The Tribunal was satisfied that the applicants would be able to regain employment and re-establish themselves in Malaysia upon their return.

7. Having considered the claims cumulatively and individually, the Tribunal was not satisfied there is a real chance that the applicants will suffer serious harm for reason of their Chinese race ethnicity, religion, nationality, membership of a particular social group or political group, if they return to Malaysia now or in the reasonably foreseeable future. The Tribunal found the applicants do not have a well-founded fear of persecution and that they are not refugees within s 5H of the Act. The Tribunal found the applicants failed to meet the criteria under s 36(2)(a) of the Act.

8. The Tribunal was not satisfied there are substantial grounds for believing as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk the applicants will suffer significant harm as defined in s 36(2A) of the Act. The Tribunal found the applicants do not meet the criteria under s 36(2)(aa) of the Act. The Tribunal found the applicants are not persons in respect of whom Australia has protection obligations and affirmed the decision under review.

Proceedings before this Court

1. On 13 July 2017, a Registrar of the Court made orders providing the applicants with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

Nature of the hearing

1. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.

2. The Court explained that, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed.

3. The Court explained that it would have identified the evidence and then hear submissions from the first applicant and then hear submissions from the solicitor for the first respondent and then hear submissions from the first applicant in reply. The first applicant confirmed that he understood the nature of the hearing as explained by the Court.

Grounds in the application

1. The grounds in the application are as follows:

   Jurisdictional errors were made by the Tribunal.

   1. The Tribunal does not accept my claims on the ground of unsubstantiated evidence and makes wrong conclusion.

   The Tribunal listed reasons to prove why I was a credible. But those reasons are arguable.

   Firstly, it is possible that my friend would be able to identify Malay men so that we would be able to determine the identity of his father.

   Secondly, if police tried to find the truth, they should ask shop owners surrounding my business for assistance. They did not do that, which proved they made false accusation against me.

   2. The Tribunal does not properly consider discrimination suffered by ethnic Chinese.

   3. The Tribunal does not properly consider potential harm I will suffer if I return to Malaysia.

   4. The Tribunal does not consider whether the delegate disclosed information properly.

Submissions from the bar table

1. From the bar table, the first applicant maintained that he was beaten by thugs in his shop and that his wife called the police and that they did not utter a single word. The first applicant maintained that he was of Chinese ethnicity and that the Tribunal had not addressed his claims in that regard. The first applicant maintained that he was accused of carrying on prostitution in his shop and that he was detained and fined and his licence revoked and that the shop was closed. The first applicant submitted that the Tribunal had failed to make inquiries of local shop owners to identify who the thugs were. The applicant also submitted that what he said was true. The alleged assailants of the applicant were is not an easily ascertainable fact in respect of a critical matter giving rise to any duty of inquiry by the Tribunal. It was for the applicant to establish his claims.

2. The Tribunal addressed the applicant’s claim in respect of Chinese ethnicity and made an adverse finding that was open to the Tribunal for the reasons given. The applicant’s repetition of his claims, in substance, invite this Court to engage in merits review. This Court has no power to review the merits.

3. In respect of the adverse-credibility findings, the Tribunal provided logical and rational reasons in support of those adverse findings which cannot be said to be unreasonable. Those adverse-credit findings included taking into account the substantial delay by the applicants in lodging a protection visa and remaining unlawfully in Australia after the expiry of their visa. No jurisdictional error is made out by anything said by the applicant from the bar table.

Consideration

Ground 1

1. In relation to Ground 1, this, in substance, repeats the applicants’ assertion that the Tribunal should have taken steps to identify the Malay men. No such duty arose in respect of the Tribunal. The applicants’ disagreement with the adverse findings does not manifest any relevant legal error. For the reasons already given, the adverse findings were open to the Tribunal and the Tribunal made dispositive findings in respect of the applicants’ claims. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to Ground 2, for the reasons already given, it is apparent that the Tribunal took into account the applicants’ claims of potential discrimination by reason of their ethnicity and made adverse credibility findings that were open taking into account country information. No jurisdictional error is made out by Ground 2.

Ground 3

1. In relation to Ground 3, the Tribunal considered the applicants’ claims and made adverse findings that were open to the Tribunal. No jurisdictional error is made out by Ground 3.

Ground 4

1. In relation to Ground 4, the Tribunal’s reasons reflect an orthodox approach to the determination of the applicants’ claims and evidence. No jurisdictional error can arise in respect of the delegate’s decision. It is only the Tribunal’s decision that falls within the scope of this Court’s jurisdiction. It is apparent from the Tribunal’s reasons that the Tribunal took into account the delegate’s decision as well as the applicant’s claims and evidence. No jurisdictional error is made out by Ground 4.

2. The Court notes that on the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review and that on the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  22 November 2017