Buy17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1388

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1388

File number(s):	SYG 1279 of 2017
Judgment of:	JUDGE STREET
Date of judgment:	21 June 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – whether the Tribunal provided the applicant procedural fairness – whether the Tribunal had a genuine and real engagement with the applicant’s claims and evidence – whether the applicant had a real and meaningful hearing before the Tribunal – no jurisdictional error found – application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 5AAA, 36(2)(a), 36(2)(aa), 476
Number of paragraphs:	27
Date of hearing:	21 June 2021
Place:	Sydney
Solicitor for the applicants:	In person
Solicitor for the respondents:	Ms J Strugnell, Minter Ellison

ORDERS

SYG 1279 of 2017

BETWEEN:

BUY17

First Applicant

BUZ17

Second Applicant

BVA17

Third Applicant

BVB17
Fourth Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	21 JUNE 2021

THE COURT ORDERS THAT:

1.The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2.Order 1 made by the Registrar on 10 August 2017 is varied to delete the guardianship in respect of the second and third applicants who are now adults.

3.The application is dismissed.

4.The first, second and third applicants pay the first respondent’s costs fixed in the amount of $5,600.00.

REASONS FOR JUDGMENT

JUDGE STREET:

INTRODUCTION

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”) dated 29 March 2017, affirming a decision of a delegate of the first respondent (“the delegate”) not to grant the applicants Protection (Class XA) Visas (“the Visas”).

2. The first applicant is the mother of the second, third and fourth applicants who were included as members of the family unit. A litigation guardian order was made in respect of all three children. That litigation guardian order will be varied in respect of the second and third applicants who are now adults.

   BACKGROUND

3. The first applicant first arrived in Australia on 13 September 2014 and has departed on three occasions prior to her last arrival on 15 September 2015. The applicants are citizens of Malaysia who arrived in Australia on 15 September 2015.  Their claims were assessed against that country.

4. On 29 October 2015, the first applicant applied for the Visas and the children applicants were included as members of the family unit. On 21 December 2016, the delegate found that the applicants failed to meet the criteria for the protection Visas. On 13 April 2016, the applicants applied to the Tribunal for review and the first applicant attended a hearing on 2 February 2017 and 16 March 2017 to give evidence and present arguments. On 29 March 2017, the Tribunal affirmed the decision under review.

   APPLICANTS’ CLAIMS

5. In summary, the first applicant claimed to fear harm because of her Chinese ethnicity, being a single mother, her Buddhist religion, interest in Christianity and her political activity. The first applicant also claimed to fear harm from her ex-husband, her parents and other family members.

6. The first applicant claimed that her ex-husband was violent, physically abused her and forced her to be physically abused by others in 2007. The first applicant left her ex-husband in 2008 and alleged that he sent bikies to harass and intimidate her and that the police would not help. The first applicant officially divorced her ex-husband on 21 May 2013 and married her current husband on 28 February 2014. Her current husband came to Australia in May 2015. The first applicant’s eldest son came to Australia on 30 May 2015, has made separate claims for protection and gave evidence to the Tribunal.

7. The first applicant also claimed that she was not allowed to go to university and that it was difficult to find a job. The first applicant alleged that she handed out water bottles at a rally and was verbally abused and that she was physically and emotionally abused at the hands of her own family who thought that her ex-husband was good man. The first applicant alleged that her children were discriminated against because of their Chinese ethnicity and because they had no money. The first applicant also claimed that she had been misrepresented by a disreputable agent in her protection application.

   THE TRIBUNAL DECISION

8. The Tribunal rejected the first applicant’s ongoing claims after separation in 2008 concerning the ex-husband, and made adverse credibility findings based on the differing versions of events and changing evidence by the first applicant. The Tribunal rejected the first applicant’s explanation and took into account the first applicant’s decision to purchase a home in the same town as the ex-husband in 2008 until she moved away in 2011 and that the first applicant had not applied for protection during her three trips to Australia prior to her final departure from Malaysia. The Tribunal was not satisfied that the first applicant was physically harmed after she left her ex-husband’s home.

9. The Tribunal took into account the applicant’s inconsistent evidence including a psychiatric report and changing evidence and did not accept the alleged forced physical abuse by others in 2007. The Tribunal did not accept the ongoing ability of the ex-husband to locate her or her harassment by bikies. The Tribunal found that the violence from the ex-husband ceased when she left him. There was substantial further material provided to the Tribunal after the first hearing. The Tribunal rejected the alleged corroborative evidence of the first applicant’s eldest son and current husband as to the alleged on-going intimidation, harassment and stalking by the ex-husband. The Tribunal did not accept that they were independent witnesses. The Tribunal discussed at the second hearing with the first applicant, her eldest son and current husband, the possibility that they had colluded in respect of these claims of ongoing harassment by the ex-husband.

10. The Tribunal did not accept that the ex-husband would pursue the applicant or her children eight or nine years after separation, in circumstances where the Tribunal found nothing occurred in the time period after the first applicant left the ex-husbands home in 2008 until their departure in 2015. The Tribunal did not accept the first applicant’s claims of physical assault by others at the instruction of the ex-husband and did not accept that the second to fourth applicants will be at risk of harm from their biological father, being the ex-husband.

11. The Tribunal after taking into account country information,  found that the applicants do not face a real chance or real risk of significant harm for reason of their Chinese ethnicity, for being non-wealthy Chinese or due to poor treatment now of in the reasonably foreseeable future. The first applicant agreed with the Tribunal in respect of country information, that whether being Buddhist or Christian, they do not appear to be at risk of serious or significant harm. The Tribunal was not satisfied that there is a real risk of the applicants suffering serious or significant harm because of their religion.

12. The Tribunal did not accept that the first applicant attended political rallies and found that the first applicant had no past political involvement in Malaysia that resulted in any adverse treatment of her or any of her family. The Tribunal found that there is not a real chance or real risk that the first applicant will suffer serious or significant harm if she attends Bersih rallies in the future.

13. The Tribunal did not accept that the applicants are at risk of serious or significant harm from any of the first applicant’s family. The Tribunal did not accept that the ex-husband has any adverse interest in the first applicant, even if he were to be told her whereabouts in Malaysia. Having considered the applicants claims individually and cumulatively, the Tribunal found that the applicants did not meet the criteria in s 36 (2)(a) of the Act or s 36(2)(aa) of the Act and affirmed the decision under review.

    BEFORE THE COURT

14. These proceedings were commenced on 28 April 2017.

15. On 5 August 2017, in addition to the litigation guardianship orders, a Registrar of the Court made orders giving the applicants the opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

16. Affidavit evidence has been adduced in relation to the s 438 Certificate that was issued. The documents were of an administrative nature, the subject of the certificate and were plainly irrelevant.

17. The applicants suffered no practical injustice in the conduct of the review, by reason of the existence of the certificate or the information, the subject of the certificate.

18. At the commencement of the hearing, the Court explained to the first applicant the nature of the hearing and she confirmed that she understood what had been said by the Court. The applicant maintained that the decision was unfair, that she had not been able to adduce material to corroborate her evidence and asserted that she had not colluded with her family. The applicant’s submissions, in substance, invited the Court to engage in impermissible merits review. The Tribunal did not find collusion but rather that the eldest son and current husband were not independent witnesses as to the ongoing harassment from the ex-husband and rejected the applicant’s ongoing claims to fear harm from the ex-husband.

19. The Tribunal made adverse credibility findings which were open to it, for the reasons given by the Tribunal as summarised above. Under s 5AAA of the Act, it is for the applicant to provide sufficient evidence to establish her claim and on the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.

20. On the face of the material before the Court, the Tribunal complied with its obligations relating to procedural fairness in the conduct of the review.

21. On the face of the material before the Court and the Tribunal reasons, the first applicant had a real and meaningful hearing before the Tribunal and as reflected in the Tribunal’s comprehensive reasons, the Tribunal had a genuine and real engagement with the applicant’s claims and evidence. The applicant’s submission of unfairness invites impressible merits review. It is also apparent from the two hearings, that the first applicant had ample opportunity to adduce material to corroborate her claims and that the first applicant did provide substantial additional material after the first hearing as referred to in the Tribunal’s reasons.

22. No jurisdictional error arises by reason of the first applicant’s oral submissions.

    THE GROUND

23. The Ground in the applicant is as follows:

    Ground 1

    The AAT's conclusions concerning country information were irrational and not reasonably formed on the basis of evidence. See Attachment ‘A’.

24. There was no Attachment A and without particulars this ground invites impressible merits review, as it was a matter for the Tribunal as to what country information it accepted. Indeed, the applicant agreed with the country information concerning no risk of harm by reason of being a Buddhist or Christian. The disagreement as to the country information accepted concerning Chinese ethnicity does not identify any jurisdictional error. Further, that country information was evidence that was before the Tribunal and logically and rationally supported the adverse findings concerning the applicant’s claims to fear harm by reason of their Chinese ethnicity. The preference of country information was within the fact finding function of the Tribunal and accordingly the choice of country information was for the Tribunal and disagreement with the same does not give rise to any irrationality or legal unreasonableness.

25. As identified above no jurisdictional error arises by reason of the existence of a certificate or the information subject of the certificate because the applicant suffered no practical injustice. The typographical error in relation to the reference to the psychiatric report does not make out any jurisdictional error. In the context, it is clear that the Tribunal references to Dr Philips was referring to Dr Philip Graham as correctly identified in paragraph 113 by the Tribunal.

26. No jurisdictional error as alleged in Ground 1 has been made out.

27. Accordingly, the application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 21 June 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       6 October 2021