BIS16 v Minister for Immigration
[2017] FCCA 2505
•17 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIS16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2505 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – principal applicant claiming a fear of harm in Malaysia because of his Chinese ethnicity – applicant not believed – no jurisdictional error. |
| Cases cited: BAX15 v Minister for Immigration [2016] FCA 491 Kopalapillai v Minister for Immigration (1998) 86 FCR 547 NAOA v Minister for Immigration [2004] FCAFC 241 Selvadurai v Minister for Immigration [1994] FCA 1105; (1994) 34 ALD 347 |
| First Applicant: | BIS16 |
| Second Applicant: | BIU16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1406 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 17 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2017 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | Ms C Alexander of Sparke Helmore |
ORDERS
The application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1406 of 2016
| BIS16 |
First Applicant
| BIU16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 May 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. There are two applicants who are a husband and wife. Background facts relating to their claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 10 October 2017.
Background
The first applicant (applicant) and second applicant arrived in Australia on 31 January 2013 and 9 April 2013, respectively, as holders of Subclass 976 (Electronic Travel Authority) visas[1]. On 19 December 2013, the applicant lodged an application for the visa[2]. The second applicant was included as a member of the applicant’s family unit and made no claims of her own[3].
[1] Court Book (CB) 77
[2] CB 1-45
[3] CB 27
On 7 October 2014, the delegate refused to grant the applicants the visa[4].
[4] CB 71-89
On 28 October 2014, the applicant applied to the (then) Refugee Review Tribunal for review of the delegate’s decision[5]. On 29 April 2016, the applicant appeared before the Tribunal with the assistance of a Cantonese interpreter to give evidence and present arguments[6]. On 5 May 2016, the Tribunal affirmed the decision to refuse the grant of the visa[7].
[5] CB 90-92
[6] CB 107-108
[7] CB 113-129
Applicant’s claims for protection
In a statement submitted with his visa application, the applicant made the following claims[8]:
a)the Chinese in Malaysia were treated as second class citizens with low political status, having to pay more for the same services and more tax;
b)in 2006, the applicants set up a business. They were extorted by officials from the Health Office who demanded money from them and threatened to close the business if they did not receive it. The applicant gave various amounts of money on many occasions;
c)on 18 September 2012, the health officials came and asked for more money than usual. The applicant argued with them and as a result, their business was closed down by the health officials several days later. The applicant reported this to police;
d)on 3 October 2012, the police called the applicant and told them that their investigation did not reveal corruption and that their behaviour involved slandering officials. They were forced to pay money for bail and were refused a bail receipt; and
e)the applicant and his wife lost their business because of this and came to Australia in order to make a living.
[8] CB 34-35
Tribunal's decision
In its decision record, the Tribunal set out the procedural history to the matter[9], the relevant law[10], the applicant’s claims and evidence[11] and the conduct of the Tribunal hearing[12].
[9] CB 117 at [1]-[4]
[10] CB 117-118 at [5]-[9]
[11] CB 118-119 at [10]-[17]
[12] CB 119-127 at [18]-[48]
The Tribunal was not satisfied as to the applicant’s credibility in relation to some aspects of his evidence and claims[13]. In so finding, the Tribunal noted inconsistencies in the applicant’s evidence, including in his explanation for the delay in seeking protection in Australia and his claims relating to the payment of bribes to health officials and his subsequent dealings with the Malaysian police[14]. The Tribunal considered that the applicant was “very general and vague” in discussing the claims that people of Chinese ethnicity were treated as second-class citizens and noted that the country information did not support his claim to fear harm in Malaysia on the basis of his Chinese ethnicity[15].
[13] CB 127 at [41]
[14] CB 120-127 at [21], [29], [30], [33], [38], [44]
[15] CB 127-128 at [45]
The Tribunal noted that, given the critical importance to his claimed fear of harm in Malaysia of his claim to have been arrested by the police for reporting extortion activities, it expected the applicant to be able to provide more detailed evidence about these events. The Tribunal noted that the applicant had advanced a new claim before it that he had been detained by the police for one week because he could not raise the bail money for his release. The Tribunal’s overall assessment of the applicant’s evidence in relation to the claimed extortion attempts and his claims to have paid the police in order to be released was that it was “vague and inconsistent and overall unconvincing”[16].
[16] CB 126 at [48]
The Tribunal found that the applicant’s delay in applying for the visa was not consistent with his claims to have a fear of harm in Malaysia on the basis of his Chinese ethnicity. The Tribunal also found that the applicant’s two trips to Thailand and his return to Malaysia within a period of six weeks before he first arrived in Australia to be inconsistent with his claim to fear harm in Malaysia. The Tribunal found that the applicant was instead concerned about economic, financial and employment issues if he returned to Malaysia, rather than a fear of harm on the basis of his Chinese ethnicity[17].
[17] CB 128 at [49]
Noting that it did not consider the applicant to be a “truthful or credible” witness[18], the Tribunal did not accept that the applicant suffered any discrimination in Malaysia on the basis of his Chinese ethnicity, nor that he was required to pay extortion money to Malaysian health officials. It followed that the Tribunal did not accept that the applicant complained to the Malaysian police in relation to the claimed extortion activities and did not accept that the Malaysian police accused him of having fabricated false complaints about Malaysian health officials. The Tribunal did not accept that the applicant was required to pay bail money to be released or that he was detained by police for the week until the money was paid[19].
[18] CB 128 at [50]
[19] CB 128 at [51]
For all these reasons, the Tribunal was not satisfied that the applicant met the Refugee criterion[20].
[20] CB 128-129 at [52]
In considering the complementary protection criterion, relying on its anterior findings, the Tribunal found that the applicant would not face a real risk of significant harm on return to Malaysia. The Tribunal further found that any difficulties the applicant might have in terms of obtaining employment or conducting a business would be difficulties faced by the Malaysian population generally and not by the applicant personally[21].
[21] CB 129 at [53]
The Tribunal affirmed the decision under review[22].
[22] CB 129 at [55]
The present proceedings
These proceedings began with a show cause application filed on 2 June 2016. The applicants continued to rely upon that application. The grounds in it are:
1.Jurisdictional error has been made.
Some questions put to the applicant are misleading and irrelevant.
AAT kept asking me about the delay in applying for a protection visa. I do not believe this question is relevant to my claims. The delay of application should not affect the credibility of my claims.
2.AAT considered my case unfairly.
AAT ignored my experience as a stall vendor and of being mistreated by the police.
3.AAT did not consider I would be harmed on the basis of my Chinese ethnicity after I return to Malaysia.
I have before me as evidence the court book filed on 24 August 2016.
I accepted as a submission the applicant’s affidavit filed with the show cause application.
I invited oral submissions from the applicant this morning. He initially said he had nothing to say.
When I explored with him the Tribunal decision, he responded that he will be harmed if required to return to Malaysia. I explored with the Minister’s solicitor the grounds of review and the Tribunal decision. It is noteworthy that the Tribunal appeared to place considerable emphasis on the applicant’s delay in seeking protection. That is a little curious, given that the delay was not exceptionally long and did not matter in the broader scheme of things, given that the applicant’s claims for protection were rejected on the facts.
I accept, however, the Minister’s submission that so long as the issue of delay was not conclusive in the review, the Tribunal was entitled to have regard to it and no jurisdictional error results from that focus by the Tribunal.
In his brief submission in reply, the applicant contends that the Tribunal decision is unfair. In response to a further question from me, however, he confirmed that that unfairness arises not from any issue of process, but rather from the adverse outcome.
There is, in my view, no issue of jurisdictional error in this case. I agree with the Minister’s submissions on the grounds of review advanced and adopt with any necessary amendments [16] through to [22] of the Minister’s submissions.
Ground 1
By Ground 1, the applicants contend that the Tribunal asked irrelevant questions in relation to the delay in lodging the visa application. In the absence of transcript evidence, the contention that the Tribunal asked “misleading and irrelevant questions” cannot be made out.[23]
[23] NAOA v Minister for Immigration [2004] FCAFC 241
The applicants also assert that the delay in lodging the application should not affect the credibility of their claims. It was open to the Tribunal to ask questions in relation to the applicants delay in lodging the visa application and, to take such delay into account when assessing the applicant’s claims and the credibility of those claims, provided the “delay” was not treated as concluding the question in relation to those matters.[24]
[24] See BAX15 v Minister for Immigration [2016] FCA 491 at [41]-[43]; Selvadurai v Minister for Immigration [1994] FCA 1105; (1994) 34 ALD 347 at 349; SZJYM v Minister for Immigration & Anor [2008] FMCA 652 at [61]
Further, reading the Tribunal’s reasons fairly and as a whole it cannot be said that that the issue of delay in applying for the visa was treated as concluding the question in relation to the applicant’s credibility. It was open to the Tribunal to find[25] that the delay in applying for the visa was not consistent with the first applicant’s claims to fear harm in Malaysia. In addition, the decision record makes plain that the Tribunal’s assessment of the applicant’s credibility was not based solely on this factor but based on an assessment of the “totality of the applicant’s evidence in relation to his claims” including country information before it[26]. The Tribunal’s credibility findings were based on rational grounds and arrived at upon consideration of matters which were logically probative to the issue of credibility[27], and were not limited to the issue of delay in applying for the visa. Ground 1 cannot be made out.
[25] CB 128 at [49]
[26] CB 128 at [50]
[27] Kopalapillai v Minister for Immigration (1998) 86 FCR 547
Ground 2
The contention in Ground 2 that the Tribunal ignored the applicant’s evidence in respect of his experience as a stall vendor and of being mistreated by the police must fail at a factual level. The decision record makes plain that the Tribunal properly considered the applicant’s claims and evidence in respect of both these issues[28]. Given its finding that the applicant’s evidence was “vague and inconsistent” as well as its other credibility concerns, the Tribunal concluded that it did not accept any of the applicant’s claims regarding his experience as a stall vendor or mistreatment by the police[29]. That finding was open to it on the evidence before it and for the reasons it gave.
[28] CB 118-127 at [15]-[16], [26], [27], [29], [36]-[37] and [43]
[29] CB 128 at [51]
To the extent that Ground 2 contends that the findings of the Tribunal were “unfair,” such a contention does not rise above an attempt to cavil with the Tribunal’s factual findings and invite the Court to engage in impermissible merits review[30]. The applicant’s description of the Tribunal’s decision as being “unfair” should be viewed merely as an emphatic way of expressing disagreement with it[31].
[30] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272
[31] Minister for Immigration v Eshetu (1999) 197 CLR 611 at 626 [40] per Gleeson CJ and McHugh J
For these reasons, Ground 2 cannot be made out.
Ground 3
The contention in Ground 3 that the Tribunal failed to consider the applicant’s claim to fear harm on the basis of his Chinese ethnicity cannot be made out. The Tribunal’s decision record indicates that it examined all of the applicant’s claims on the evidence made available to it, discussed with the applicant at the Tribunal hearing his fear of harm on the basis of his ethnicity[32] and considered relevant country information in respect of this claim[33]. The Tribunal considered that the DFAT country information report provided credible information[34] and, on the basis of the country information before it and its credibility concerns about the applicant, did not accept that he would suffer persecution, discrimination or harm in Malaysia as a result of his Chinese ethnicity[35]. The Tribunal properly addressed and made dispositive findings on the claims and evidence before it. Ground 3 cannot be made out.
[32] CB 119-123 at [18]-[19], [28]-[29]
[33] CB 124-128 at [34], [37] and [45]
[34] CB 126 at [46]
[35] CB 128 at [51]
Conclusion
I conclude that the applicant has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is, therefore, a privative clause decision and the application must be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the amount of $5,800. Scale costs in this instance would be $7,206. The applicant did not wish to be heard on costs.
I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 18 October 2017
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