BKT18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 48
Federal Circuit and Family Court of Australia
(DIVISION 2)
BKT18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 48
File number(s): SYG 779 of 2018 Judgment of: JUDGE LAING Date of judgment: 31 January 2023 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming decision not to grant the applicant a protection visa – whether the Tribunal was biased – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal’s reasoning was otherwise unsatisfactory, unfair or demonstrated relevant error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 424A, 425 Cases cited: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 31 January 2023 Place: Sydney Solicitor for the Applicant: The applicant appeared by telephone with the assistance of an interpreter Solicitor for the First Respondent: Ms A. Wong (Mills Oakley) appeared by video-link Solicitor for the Second Respondent: Submitting appearance, save as to costs. ORDERS
SYG 779 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BKT18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
31 JANUARY 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $4,000.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), orders 1 and 2 not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).
background
The applicant is a citizen of Malaysia. He arrived in Australia on 27 March 2016 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa. He subsequently held student visas before applying for a protection visa on 2 June 2017.
On 16 August 2017, the Delegate refused to grant the applicant a protection visa.
On 11 September 2017, the applicant applied to the Tribunal for review of the Delegate’s decision. He attended a hearing before the Tribunal on 31 January 2018.
On 16 February 2018, the Tribunal affirmed the Delegate’s decision.
the tribunal’s decision
The Tribunal accepted the applicant was a Malaysian citizen as claimed (at [15]).
However, the Tribunal raised a number of concerns regarding the credibility of the applicant’s evidence. On account of those concerns, the Tribunal found that it was “unable to be satisfied with any of his claims” to have been assaulted by and face harm from gang members in Malaysia (at [19]). Those concerns were set out at [20]-[25] of the Tribunal’s decision as follows:
20.Firstly, the Tribunal was concerned with the applicant's written claim that he was so afraid of being beaten to death, that he had no choice but to leave Malaysia. When the Tribunal asked why he needed protection, he said when he was in high school in Malaysia there was an incident. When the Tribunal asked for the date of the incident, he said 'a long time ago'. The Tribunal again asked for an approximate date and he was silent. The Tribunal made further efforts to obtain an approximate date, and it was only when it put to the applicant that it was difficult to understand that he could not remember when this occurred, that he then said it was in about September 2011. The Tribunal asked why he needed protection in 2018 for something that happened in 2011, and he said because the gang looks him up all the time. When asked for more specific details, he said they beat him up five or six times, and the last time he was beaten up was in 2014. The Tribunal put to him that it was difficult to understand why he said he needed to come to Australia two years later, if the last time he was harmed by them was in 2014.
21.He then responded that he was hiding for those two years. The Tribunal noted that this was inconsistent with his earlier evidence that he had been studying during that time. In response, he said he went to another school which was about one hour away from his high school, and they did not know about it. As the Tribunal put to him, it was difficult to accept that he was in fear of harm and in hiding for two years, while only living one hour away and attending college. The Tribunal considers that his evidence undermines his claim that he had to come to Australia for fear of being harmed.
22.Secondly, the Tribunal was also concerned that the applicant changed his evidence about going to Thailand when the Tribunal put a concern to him, and gave evidence which was difficult to accept. He told the Tribunal that he went to the police in 2011 about the gang; the police didn't do much and they were released. The Tribunal asked what happened to him then, and he said he was a bit scared and he went to Thailand. The Tribunal noted however that he didn't go to Thailand until 2016 (according to his application form and his passport, he first went there in 2016). He then said that he went to Thailand several times; he constantly went to visit Thailand in order to avoid the gang; when asked, he estimated this happened around 10 times. The Tribunal put to him that if he was going to Thailand to try to avoid them, it did not make sense that he was then returning from Thailand back to his home country. In response he said that Thailand was too dangerous to stay, there are gun episodes, and people get beaten up in the streets. The Tribunal put to the applicant that it was hard to accept that, even if there may be some security incidents in Thailand (and there are security incidents that occur in Australia), he was prepared to go back to his country where he was being targeted by a gang. The Tribunal also put to the applicant that it did not seem to make sense that he would travel to Thailand 10 times, if, as he claimed, Thailand is dangerous. His only response was to say that he went there to avoid the gang. The Tribunal does not find his evidence about his claimed travel to Thailand, and willingness to return to Malaysia where he feared harm, to be persuasive.
23.Further, when the Tribunal asked the applicant for his reason for making a day trip to Thailand on 13 March 2016, after he had received the visitor visa to come to Australia on 8 March 2016 (according to his passport), he said he went there for entertainment, just for a day trip. As the Tribunal put to the applicant, this did not sound like the actions of a person who was trying to escape serious or significant harm in Malaysia.
24.Thirdly, the Tribunal considered that his delay in coming to Australia appeared inconsistent with his claimed fear of harm and need for protection. In this regard, the Tribunal noted that he had spent his time travelling to and from Thailand, a place, he claims, of danger, whereas he could have just obtained an electronic visitor visa to come to Australia to be safe. The Tribunal asked the applicant why he did not come to Australia earlier, and his response was that he did not want to give up his studies, he wanted to complete them. The Tribunal put to the applicant that this appeared inconsistent with his claim that his life was in danger or he needed protection; it would think that he would have come to Australia earlier. He then said he only heard about protection visas in Australia while he was doing his Diploma (which he studied for two years) in Malaysia; the Tribunal suggested that he could have come to Australia when he found out about protection; he then changed his response and said that he wanted to use his own money to come to Australia. The Tribunal does not find the applicant's evidence to be persuasive, and considers that his delay in coming to Australia, and his choice to instead continue visiting an unsafe place (Thailand), and undertaking his studies, indicates that he was not suffering harm, and he was not living in fear, in Malaysia.
25.Fourthly, the Tribunal was concerned that, if he was aware when he was in Malaysia that he could lodge a protection visa application, once he arrived in Australia holding a visitor visa he applied for a student visa instead of applying for a protection visa. In response, he said that he wanted to go to Australia for a year and then return to Malaysia but then he recently realised they were looking for him. The Tribunal put to him that this was difficult to understand as he claimed they have always been looking for him since 2011. In response he said that he left the country. The Tribunal is not persuaded by the applicant's response, and considers it highly unlikely that he would have planned to return home after studying for one year in Australia if he had experienced the past harm claimed, and held the future fears of harm claimed. The Tribunal considers that this undermines his credibility and his claims.
The Tribunal did not consider that the issues that it had identified in the applicant’s evidence were due to the applicant being tired or hungry at the hearing. It observed that it had offered him a break to obtain something to eat, which he had declined. The Tribunal also did not consider that the difficulties in the applicant’s evidence were explicable by nerves (at [26]).
The Tribunal concluded that the applicant was “not a witness of the truth” and had fabricated his protection claims (at [27]). The Tribunal did not accept that the applicant had any adverse encounters with gang members, nor any of the matters that he claimed had arisen on account of this (at [28]-[29]). The Tribunal concluded that there was nothing in the information before it to indicate that the applicant would otherwise face a real chance of relevant harm in Malaysia (at [30]-[31], [35]).
The Tribunal therefore concluded that the applicant was not a person to whom protections obligations were owed. Accordingly, it affirmed the Delegate’s decision (at [33]-[38]).
proceedings before this court
By an application filed on 22 March 2018, the applicant raised the following grounds of judicial review:
1.AAT has biased consideration about my situation and without fairness.
2.AAT said I can stay in Malaysia for two years without being harmed, so I will not be harmed again. This is very unsatisfactory.
3.AAT is not making satisfactory conclusion that I wasn't hiding for two years as I was in fear. AAT doesn't accept my credibility, I don't think it is fair.
Ground 1
Ground 1 contended that the Tribunal was “biased” and acted “without fairness”. The ground as pleaded was unparticularised. The applicant chose not to elaborate upon it during his hearing before the Court.
A contention of actual bias is a serious matter which carries a heavy onus. It requires prejudgment in a manner so committed to a conclusion that it is “incapable of alteration”, regardless of arguments or evidence (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 (Jia Legeng) at [72] per Gleeson CJ and Gummow J). Apprehended bias is similarly difficult to establish. It requires that a “fair-minded lay observer might reasonably apprehend” that a decision maker “might not bring an impartial mind” to determination of the matter (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 at [33] per Gleeson CJ and McHugh, Gummow and Hayne JJ).
It is well established that bias is a serious allegation that is required to be distinctly made and clearly proven: Jia Legeng at [69] per Gleeson CJ and Gummow J.
This has not occurred in the present case. The applicant has not drawn attention to any evidence before the Court capable of proving such an allegation. Nor is anything in this regard apparent on my own review of the materials.
The decision record indicates that the Tribunal put various concerns to the applicant at hearing regarding his evidence and invited his responses. Those responses were then considered by the Tribunal. The Tribunal’s conduct, as evidenced by its decision record, therefore indicated a mind that was open to persuasion. The Tribunal also offered the applicant a break during the hearing, which he declined. I do not consider that there is any basis on the materials before this Court for finding that an allegation of bias has been made out.
The allegation of unfairness was similarly unparticularised. The Tribunal’s procedural fairness obligations were limited under Part 7 of the Migration Act 1958 (Cth) (the Act). The applicant was invited to a hearing in accordance with s 425 of the Act. The decision record indicates that the applicant was on notice of the fact that the credibility of his claims may be in issue through the various matters that were put to him by the Tribunal in this regard (at [20]-[25]). There is nothing in the materials indicating that the Tribunal’s obligations under s 424A of the Act were enlivened.
For these reasons, ground 1 is unable to succeed.
Ground 2
Ground 2 took issue with what was understood to be the Tribunal’s reasoning that because the applicant stayed in Malaysia for two years without being harmed, he would not be harmed again. This was said to be “very unsatisfactory”.
At [20] of its decision, the Tribunal observed that it had put to the applicant that it was difficult to understand why he said that he needed to come to Australia two years later, if the last time that he was harmed by the gang was in 2014. At [21], the Tribunal observed that the applicant had then claimed to have been hiding for those two years. The Tribunal found this difficult to accept, given that the applicant claimed to have been living only one hour away and attending college.
I find that it was open to the Tribunal to reason in this manner. The applicant’s claimed proximity and attendance at another educational institution located only one hour away were logically probative of the Tribunal’s concerns regarding the applicant’s claim to have been in “hiding”.
This was not the only reason that the Tribunal gave for not accepting the applicant’s claims. The Tribunal identified other issues with the applicant’s credibility at [22]-[25] of its decision. Those issues included inconsistencies and other difficulties in the applicant’s evidence regarding his travel to Thailand and Australia, as well as his delay in applying for protection.
It is understandable that the applicant may feel dissatisfied with the Tribunal’s decision, in circumstances where the Tribunal did not accept his claims or evidence. However, without more, such dissatisfaction does not provide a legally recognisable basis for setting aside the Tribunal’s decision.
It follows that ground 2 is unable to succeed.
Ground 3
Ground 3 contended that the Tribunal’s non-acceptance of the applicant’s credibility, including in relation to his claim to have been hiding for two years, was unfair or unsatisfactory.
This ground also does not appear to go further than disagreement or dissatisfaction with the reasons given by the Tribunal. The Tribunal gave reasons, which I have set out, for not accepting that the applicant was a credible witness. Those reasons were based upon inconsistencies and other difficulties that the Tribunal identified in the applicant’s evidence, as well as its concerns regarding the applicant’s delay in travelling to Australia and applying for protection.
In respect of the applicant’s claim to have been in hiding, the Tribunal put to the applicant that this appeared to be inconsistent with his earlier evidence that he had been studying during the period claimed. The applicant then responded that he had gone to another school, located about one hour away. The Tribunal found it difficult to accept that the applicant had been in hiding for two years living in fear of harm, whilst only living an hour away and attending college.
The applicant has not demonstrated how any part of this reasoning was closed to the Tribunal. Nor is such a basis apparent upon my reading of the Tribunal’s decision. As I have stated in relation to ground 2, I consider that it was open to the Tribunal to find that the applicant’s attendance at a college and residence only an hour away was logically probative of its concerns regarding the applicant’s claim to have been in “hiding”.
Ground 3 is therefore unable to succeed.
conclusion
For these reasons, the application before this Court must be dismissed.
If successful, the Minister sought costs fixed in the amount of $4,000. I accept that this amount is reasonable, noting that it is substantially below the Court’s scale.
I will also make an order staying the entry of these orders until written reasons for judgment have been published and therefore made available to the parties.
33 I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate:
Dated: 31 January 2022
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