BTE17 v Minister for Immigration

[2017] FCCA 2929

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTE17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2929

Catchwords:
MIGRATION – Administrative Appeals Tribunal – the Tribunal expressly took into account the applicant’s ethnicity and religion – the adverse credibility findings cannot be said to lack an evident and intelligible justification – no jurisdictional error identified – application dismissed.

Legislation:

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

Applicant: BTE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1236 of 2017

Judgment of: Judge Street

Hearing date: 27 November 2017

Date of Last Submission: 27 November 2017

Delivered at: Sydney

Delivered on: 27 November 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1236 of 2017

BTE17

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 20 March 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant is a citizen of Malaysia, and his claims were assessed against that country. The applicant arrived in Australia on 18 March 2016 on a Subclass 601 (Electronic Travel Authority) visa.  It was not until 10 June 2016 that the applicant applied for protection. 

The delegate’s decision

1. On 15 July 2016 the delegate found the applicant failed to meet the criteria for the grant of a visa. The delegate found the part of the applicant’s claims in relation to attending rallies to be plausible and found the applicant was not of interest to the Malaysian authorities.

2. The applicant claimed to fear harm by reason of being involved in Hindu Rights Action Force (HINDRAF) and Bersih rallies, which conducted a huge crowd against the ruling government and the Prime Minister. The applicant claimed that his country was badly run and there was a certain level of political activities that he wanted to get away from. The applicant feared that he would be charged, fined and imprisoned by the authorities because he retaliated against his own country. The applicant claimed to have come to Australia after police came to his house and arrested him after the first HINDRAF rally. The applicant claimed he was held for three days, warned and then released and that the Malays came to his house and pretended to be police, asking him why he joined HINDRAF, and threatened to burn his car and house. 

The Tribunal’s decision

1. The applicant applied for review on 21 July 2016. By letter dated 3 January 2017, the applicant was invited to attend a hearing on 7 February 2017. The Tribunal’s reasons identify the background to the application for review and set out the relevant law. The Tribunal summarised the applicant’s claims and evidence.

Refugee Convention assessment

1. The Tribunal made adverse credibility findings in relation to the applicant and formed the view that the applicant had fabricated much of his evidence. The Tribunal summarised reasons in support of the adverse credibility findings, first in relation to his employment activity, then in relation to Hindu rights. The applicant said that he did not belong to any political party. The applicant claimed he became politically active in 2008, motivated by concerns about Hindu rights in Malaysia and had questioned why Malaysians seemed to get all the rights. The Tribunal questioned him in relation to his jobs and put to him that it would seem to be contradictory of his previous statement because it identified him working hard to start a small business. 

2. The Tribunal sought to explore with the applicant how he became involved with HINDRAF and found the applicant was unable to remember when the last rally was held, in circumstances where that was central to his claims, and noted the applicant provided no response when that was raised with him. 

3. The Tribunal referred to the applicant’s claim that the police came to his house and he was arrested and then released. The Tribunal explored with the applicant why that had not been raised earlier in his application. The Tribunal also sought to explore with the applicant his claims as to his involvement with the rallies and whether he was of high profile. The Tribunal found that it became apparent during the evidence that the applicant was not aware when the Bersih rallies were held and confirmed that he was not claiming harm as a result of his attendance at those rallies. 

4. The Tribunal asked the applicant about his claim that he cannot relocate in Malaysia because he said he did not feel safe, noting that he did relocate. The Tribunal raised its concerns with the applicant in relation to his claims and that it was having trouble accepting his assertion that he was of high profile. The applicant identified that he would be able to access some documentation from Malaysia. The Tribunal provided the applicant with further time to lodge additional evidence after the hearing. No further material was provided. 

5. The Tribunal put to the applicant relevant extracts of DFAT country information relating to Indian Malaysians and explained that while his experiences may not always have been positive, this did not indicate he had been subjected to serious or significant harm and when asked whether he had anything further to add, the applicant said he did not.

6. It was in those circumstances that the Tribunal found all the applicant’s claims and evidence were ones in respect of which the applicant was not a witness of truth. The Tribunal found the applicant had fabricated his material claims for the purpose of obtaining a protection visa. The Tribunal did not accept that the applicant attended the HINDRAF rally in 2007 and developed a high profile as a result. The Tribunal did not accept the applicant attended the Bersih rallies. The Tribunal did not accept the applicant was caught by the authorities for his involvement in rallies or was being sought by them.

7. The Tribunal was prepared to accept that the applicant had experienced some low-level discrimination as a result of his religion and/or ethnicity but did not accept that this constituted serious or significant harm. The Tribunal did not accept the applicant left Malaysia for any of the reasons claimed or that he fears returning to Malaysia for any of the reasons claimed. The Tribunal did not accept that the applicant was or is of adverse interest to the Malaysian authorities. The Tribunal was not satisfied there is a real chance the applicant will suffer serious harm for any of the reasons claimed if he returns to Malaysia now or in the reasonably foreseeable future.

8. Having considered the claims individually and cumulatively, the Tribunal found there is no real chance that the applicant will suffer serious harm for reason of his membership of a particular social group or any other reason set out in s 5J(1)(a) of the Act if he returns to Malaysia now or in the reasonably foreseeable future. The Tribunal found the applicant does not have a well-founded fear of persecution and is not a refugee within the meaning of s 5H of the Act. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) of the Act.

Complementary protection assessment

1. The Tribunal was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act. The Tribunal found the applicant does not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review. 

Before this Court

1. On 3 August 2017, a Registrar of the Court made orders fixing the matter for hearing and providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

2. The grounds in the application are as follows:

   1. The Tribunal made jurisdictional error in that it was unreasonable in making adverse credibility findings recklessly without a sound basis by not considering all the information on record available at the time of review before it.

   Particulars

   The applicant gave evidence before the Tribunal in suppo1t of his claim. The Tribunal failed to consider all evidence on record and merely confirmed the delegate findings. The Tribunal did not adhere to the principles laid down in in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719at [61] wherein Sackville J observed that evidence by the protection visa applicant may be ''given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision maker/investigator"  and noted that “even applicants with a genuine fear of prosecution may not present as models of consistency or transparent veracity”. Hence it is submitted that while assessing applicant's creditability Tribunal did not have due regard to these aspects in tl1e present case.

   2. The Tribunal and the delegate failed to consider the correct social group to which I belong being (i)ethnic Indian (ii) Hindu , middle aged male (ii) Active member of PKL opposition party (iii) participated in several protest movement (HINDRAF & BERSIH ) against the ruling party and the Government of Malaysia.

   Particulars

   The Tribunal and the delegate failed to consider the correct social group (PSG) to which I belong, They have considered only some of the characteristics of the social group viz I participated in protest movement against the Government but failed to consider the other aspects of the particular social group to which I belong.

3. 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. 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 with costs. 

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

The applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that there was discrimination against Indians due to the rights given to indigenous Malays. The applicant maintained that he was enjoying being in Australia and he wanted to get his mother to this country.  The applicant did not put any submission identifying any basis upon which the Court could find any jurisdictional error. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.  On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. 

2. The applicant’s submissions from the bar table invited the Court to engage in merits review. This Court does not have power to review the merits and this Court does not have power to decide the matter on compassionate grounds.

Ground 1

1. In relation to ground 1, the Tribunal provided logical and rational reasons in support of the adverse credibility findings. It is apparent that the applicant’s credit had been in issue before the delegate and from the Tribunal’s reasons, it is apparent the Tribunal raised issues of credit with the applicant, particularly in relation to his ability to remember rallies and his ability to work. 

2. On the face of the material before the Court, the Tribunal properly considered the whole of the claims and evidence and the adverse credibility findings cannot be said to lack an evident and intelligible justification. The adverse credibility findings were not unreasonable, and there was no failure to consider relevant information by the Tribunal in its adverse findings. No jurisdictional error is made out by ground 1. 

Ground 2

1. In relation to ground 2, the Tribunal expressly took into account the applicant’s ethnicity and religion, and also took into account the applicant’s claims in respect of rallies, and made an adverse finding in respect of the applicant’s claim to fear serious harm by reason of being a member of a particular social group. However, no claim was made before the delegate or the Tribunal that the applicant was an active member of the PKL. No jurisdictional error can be made out by the raising of a ground on an application for relief in this Court that was not raised before the Tribunal and which did not fairly arise on the material before the Tribunal. 

2. The Tribunal did consider whether the applicant was entitled to protection by reason of the claims advanced involving the applicant being a member of a particular social group and made adverse findings.  Those findings were dispositive of the applicant’s claims. Ground 2 in fails to make out any jurisdictional error.

3. 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

Date:  21 December 2017