BVL16 v Minister for Home Affairs
[2018] FCA 1962
•29 November 2018
FEDERAL COURT OF AUSTRALIA
BVL16 v Minister for Home Affairs [2018] FCA 1962
Appeal from: BVL16 v Minister for Immigration & Anor [2018] FCCA 1220 File number: VID 498 of 2018 Judge: CHARLESWORTH J Date of judgment: 29 November 2018 Date of publication of reasons: 6 December 2018 Catchwords: MIGRATION – protection visa refused – self-represented litigant - poorly expressed grounds of judicial review before primary judge – primary judge reviewing decision for legal unreasonableness – decision to refuse visa open on material before decision-maker – no appealable error Legislation: Migration Act 1958 (Cth) ss 36, 65, 476A Cases cited: BVL16 v Minister for Immigration & Anor [2018] FCCA 1220
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; (2002) 190 ALR 543
House v The King (1936) 55 CLR 499
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588
Date of hearing: 29 November 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 37 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr A Cunynghame Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
VID 498 of 2018 BETWEEN: BVL16
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
CHARLESWORTH J
DATE OF ORDER:
29 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of the appeal in the fixed sum of $4,363.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
The Court made orders dismissing this appeal on 29 November 2018. This is a written record of the reasons for judgment delivered orally on that day, with some minor revisions.
The appellant is a citizen of Malaysia. He departed Malaysia legally on 7 January 2015 and entered Australia as the holder of an electronic travel authority. Before that authority expired, the appellant made an application for a protection visa under the Migration Act 1958 (Cth). In support of that application, the appellant claimed that he would be harmed or killed by reason of his actual or imputed political opinion. He claimed that he had been involved in a civil society organisation known as Bersih, and that during a Bersih rally in 2013 he had been pushed by a police officer into a lorry and injured his head. He further claimed that he and his family had been threatened by the police.
The delegate of the then titled Minister for Immigration and Border Protection refused to grant the appellant a visa. That decision was affirmed on review by the Administrative Appeals Tribunal. The Tribunal was not satisfied that the appellant had been involved with Bersih in any way, or that he had participated in any anti-government rallies. The Tribunal was not satisfied that the appellant had the profile of a person who would be of interest to the Malaysian authorities and so was not satisfied that the appellant fulfilled the criteria for a protection visa.
The Federal Circuit Court of Australia (FCC) dismissed an application for judicial review of the Tribunal’s decision: BVL16 v Minister for Immigration & Anor [2018] FCCA 1220. This is an appeal from that judgment.
Section 65 of the Act provides that if the Minister is satisfied that a visa applicant fulfils the criteria for the grant of the visa, the Minister must grant the visa. Conversely, if the Minister is not so satisfied, the Minister is to refuse to grant the visa.
Relevantly, it was necessary for the Minister to be satisfied that the appellant fulfilled either the criteria in s 36(2)(a) of the Act (the Refugee Criterion), or the criterion in s 36(2)(aa) of the Act (the Complementary Protection Criterion).
The Refugee Criterion required that the Minister be satisfied that the visa applicant be a non-citizen in Australia to whom Australia owes protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:
… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia owes protection obligations because:
… the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ….
Before the Tribunal and the delegate the appellant claimed he fulfilled these criteria for reasons that were summarised at [11] - [13] of the Tribunal’s record of decision:
11.The applicant claimed in his protection visa application that in April 2010, the coalition was relaunched as an entirely civil society movement (Bersih 2.0) unaffiliated to any political party. On 19 June 2011, former president of the Bar Council, Dato Ambiga Sreenevasan became the chairperson of the coalition. He claimed as he was involved in this, his name was listed and the government does not bother ‘on my safety requirement’. The applicant claimed if he returns to Malaysia he will face many problems such as getting a job, mental torture, killing, blackmail, ‘unsaved’ condition and other problems.
12.The applicant claimed that in 2013 he was attacked by several people dressed in police uniform and threatened. He claimed he reported the incident to the police station and no action was taken and no arrests were made.
13.The applicant claimed that maybe he will be harmed or mistreated if he returns to Malaysia. He will most likely face threat. He claimed he did not know if anyone can save him, maybe only his family. He also claimed he could relocate to his family.
The reasons given by the Tribunal for rejecting these claims will be explained in the course of considering the grounds of appeal.
In the proceedings before the primary judge, the burden was on the appellant to show that the Tribunal’s decision was affected by jurisdictional error. The appellant relied on five grounds for judicial review. They were expressed as follows:
1.The Tribunal failed to take into account relevant evidence presented by the Applicant, including that he was a member of the political party/civil protest group ‘Bersih’.
2.The Tribunal erred in holding that the Applicant was not involved in the political party/civil protest group ‘Bersih’ in any way. It was not open to the Tribunal to draw such a conclusion based on general independent country information.
3.The Tribunal erred in refusing to believe that that the Applicant was assaulted at a ‘Bersih’ rally despite the Applicant showing the Tribunal the scar on his forehead occasioned by the assault. The Applicant should be given the benefit of the doubt.
4.The Tribunal erred in not taking into account the Applicant’s fear of being harmed if he was returned back to Malaysia.
5.The Tribunal erred in not giving any weight or credit to the Applicant’s evidence.
The primary judge dealt with and rejected the five grounds collectively. Broadly, the primary judge found that the conclusions of the Tribunal were open to it on the information before it. That conclusion is expressed at [14] of the primary judge’s reasons as follows:
The Court finds there is no jurisdictional error attending the decision of the Tribunal for the following reasons:-
a)the Tribunal considered each of the claims put before it by the Applicant and each of the integers of such claims. The Tribunal made findings of fact clearly open to it on the evidence before it. The Applicant, for the most part, seeks in these circumstances impermissible merits review;
b)it is well-settled that the selection and weight of country information is a matter for the Tribunal. It was open on the evidence before the Tribunal for the Tribunal to draw its conclusion that the Applicant was not involved in Bersih on the basis of country information before it;
c)the Tribunal accepted that the Applicant hurt his head in the past given the scar he showed the Tribunal during the hearing. The Tribunal, however, did not accept that the Applicant acquired this injury at a Bersih rally as claimed by the Applicant. Such a finding was open to the Tribunal on the material before it, and for the reasons which it gave;
d)the Tribunal found, contrary to the submissions of the Applicant, that no one had attacked him, and that in the past the Applicant had moved freely between Malaysia and Australia.
The appellant appears self-represented on this appeal. His grounds of appeal are expressed in 12 paragraphs. It is convenient to deal first with [10] - [12]. They are expressed as follows:
10.The Honourable Court and Judge erred in law and/or in fact by taking into account irrelevant facts, material and evidence and failed to take into account relevant facts material and evidence;
11.The Honourable Court and Judge erred in law and/or in fact by awarding costs against the Appellant;
12.Such further or other grounds that the Appellant may be entitled to present before the Court upon a receipt of a written copy of the reasons of the Honourable Court and Hon. Judge in due course.
The appeal cannot be allowed on any one of these bases.
Paragraph 10 does not provide any particulars of the facts, material, and evidence that the primary judge is said to have impermissibly taken or failed to take into account. In the course of oral submissions, the appellant has not given particulars of any appealable error of this kind.
As to [11], the primary judge awarded costs against the appellant in the event of dismissing his application for judicial review. It has not been shown that the discretion of the primary judge to award costs in that event has miscarried in any way in the sense explained in House v The King (1936) 55 CLR 499. This ground may be understood as a challenge to the ultimate outcome in the proceedings before the FCC. It will be understood as an appeal from the costs order such that the costs order may be set aside should this Court allow the appeal.
Paragraph 12 foreshadows the introduction of further grounds of appeal upon receipt by the appellant of the written reasons of the primary judge. It reflects the circumstance that the primary judge gave oral reasons for dismissing the application but did not publish written reasons, apparently, until about a month later, that is, after the time in which to commence an appeal from the judgment had expired.
Notwithstanding that, the appellant has been in possession of the written reasons for the judgment for some months now and has not sought to amend his notice of appeal.
I now turn to [8] of the grounds of appeal. It reads:
The Federal Circuit Court erred in not finding that the Tribunal did not approach the decision-making with an open impartial fair mind. The Tribunal simply dismissed each claim put forward by the Applicant.
On his application for judicial review, the appellant did not allege that the decision of the Tribunal was affected by apprehended bias. The argument before this Court is new. The appellant requires leave to introduce it: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; (2002) 190 ALR 543 at [18] (Hill, O’Loughlin and Tamberlin JJ); VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). In considering whether to grant leave, I afford weight to the circumstance that the appellant is a self-represented, non-English speaking litigant. I also have regard to the statutory context, particularly the circumstance that this Court does not have original jurisdiction to judicially review the Tribunal’s decision: s 476A of the Act.
Ultimately, I do not consider leave should be granted to introduce the new argument, primarily because it does not have sufficient prospects of success to justify the grant of leave.
The argument with respect to apprehended bias appears to be founded on the fact that the Tribunal “simply rejected the appellant’s claims.” The circumstance that the Tribunal rejected all of the appellant’s claims cannot, of itself, provide a proper foundation for a claim of apprehended bias or actual bias. It would be necessary to show that a reasonable person might apprehend that the Tribunal might approach its task with a mind foreclosed to the merits of the case: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
The remaining grounds are those set out in [1] - [7] and [9]. They are expressed as follows:
1.The Federal Circuit Court erred in not finding that the Tribunal erred in paragraph 17 of the Decision in not believing the Applicant’s account of his political involvement in Bersih.
2.The Federal Circuit Court erred in not finding that the there was ample evidence here of an ‘official quality’ of the persecution as these were State Police Officer members in support of the ruling party - see Minister for Immigration and Multicultural Affairs v S152/2003 (2004) 222 CLR 1.
3.The Federal Circuit Court erred in not finding that the Tribunal erred at Paragraph 18 of its Decision in that it expected too much by asking the Applicant and expecting the Applicant to give a detailed account of Bersih politics. A person can be politically involved and support a political party and not know the minute details of is political manifesto.
4.The Federal Circuit Court erred in not finding that the Tribunal erred at Paragraph 19 of its Decision in drawing a conclusion that the Applicant hurt himself in some other way. There was no evidence to contradict or lead to an alternative assumption of the injuries.
5.The Federal Circuit Court erred in not finding that the Tribunal erred in paragraph 20-21 of its Decision that the Applicant could return back and those who attacked him would not be a threat. S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
6.The Federal Circuit Court erred in not finding that the Tribunal erred in relying too much on internet material and newspaper reports on the general nature of Bersih Politics and the political climate in Malaysia. See Paragraph 17 of the Decision Record. These political write-ups would be unfair as they are in the local papers and would not openly criticise the Ruling Party and would soften the impact of Bersih.
7.The Federal Circuit Court erred in not finding that the Tribunal erred in Paragraph 16 of the Decision in refusing to believe that the Applicant went to three Bersih Rallies. As a supporter it is entirely possible he attended the rallies. The Tribunal simply refused to believe the Applicant without any underlying basis for the refusal.
…
9.The Federal Circuit Court erred in not finding that the Tribunal further discarded the subjective element of fear felt by the Applicant. He was brutally assaulted and fears to return to Malaysia.
For the Minister, it is submitted that for the most part these grounds amount to an assertion that the Tribunal erred in not believing the appellant and so constitute an impermissible attempt to have this Court interfere with the Tribunal’s decision on its merits.
In his oral submissions in support of his appeal, the appellant repeated in some detail the claims that he had made for protection before the delegate and the Tribunal. He expressed disagreement with the approach that the Tribunal took and the factual findings that it made. As a self-represented litigant, the appellant was unable to articulate his submissions in a manner that expressly alleged any recognisable ground of judicial review.
In dealing with similarly cast grounds for judicial review, the primary judge (properly) asked whether it was open to the Tribunal to make the findings that it did. Although not expressly asked to do so, the primary judge reviewed the decision for legal unreasonableness in the sense described by the High Court in the case of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and by the Full Court of this Court in cases such as Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437.
As Allsop CJ explained in Stretton (at [11]), the task of reviewing a decision for legal unreasonableness is not definitional but one of characterisation. His Honour said that:
… the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense …
The Court is to look to the reasons for the decision of the Tribunal to understand why the power was exercised as it was.
In this case, the Tribunal’s reasons state that the appellant gave evidence before the Tribunal concerning the date on which he joined Bersih, his reasons for joining the organisation, its nature and goals, the time in which it was formed, and the years in which its rallies were held. The Tribunal also referred to independent country information, an article published in The Straits Times, and information published on a Bersih website.
The Tribunal found that the independent information was inconsistent with the appellant’s evidence and that it preferred to rely on the independent information. The Tribunal also said that the appellant’s evidence concerning Bersih’s aims were vague and lacking in detail.
The country information was to the effect that the aim of the organisation was to demand reform of the electoral process in Malaysia, whereas the appellant had described the aim of the organisation (and his reasons for joining) to be a protest against what the government was doing to ensure that the government, including the Prime Minister, was clean and clear.
The Tribunal said it was implausible that a person who had claimed to have attended a number of rallies for the organisation could not articulate Bersih’s goals to achieve wider electoral reform. The Tribunal said at [19]:
Based on the above, the Tribunal does not accept that the applicant hand [sic] any involvement or association with Bersih or that he participated in any Bersih rallies. As such, it does not accept that during the last rally he allegedly participated in sometime during 2013, he was pushed by a police officer into a lorry which was being used as a barricade during the protests, hurting his forehead, and the police officer warned him that if he joined this coalition, Bersih, again he and his family will have trouble. The applicant confirmed in the hearing that this was the same incident as the one referred to in his protection visa application, in which he claimed he was attacked by several people dressed in police uniform and threatened. While the Tribunal accepts that the applicant hurt his head in the past given the scar on his forehead which he showed the Tribunal during the hearing, for the reasons discussed above, the Tribunal does not accept that the applicant acquired this injury in the manner which he claimed.
The Tribunal went on to reject the appellant’s claim that he had been listed as a person of interest to the Malaysian authorities. In that respect the Tribunal found that the appellant had previously been able to leave Malaysia in September 2014 and then to return again without any problems or difficulties, and that he had again departed Malaysia legally in January 2015 without experiencing difficulties at that time.
As I have said, the appellant’s submissions were broadly to the effect that this Court should disagree with the conclusions that were reached by the Tribunal and arrive at a different outcome for itself. In that sense, the oral submissions did indeed invite the Court to undertake a merits review of the Tribunal’s decision, which this Court simply does not have the power to do. The appellant cannot succeed on the appeal by showing that an alternate course of reasoning might have been open to the Tribunal on the material before it.
The primary judge was correct to find that the course of reasoning adopted by the Tribunal was a course of reasoning that was open to it. In particular, it was open to the Tribunal to find that the appellant’s evidence was lacking in some detail, and that it was implausible that a person involved in the Bersih organisation could not articulate its aims more clearly. It was also open to the Tribunal to find that there was some inconsistency between the appellant’s evidence and the other information before it. In respect of the appellant’s injury, the Tribunal was under no obligation to uncritically accept the appellant’s claim that he had suffered the injury in the course of a rally. It was open to the Tribunal to reject this aspect of the appellant’s claim, notwithstanding the absence of direct contradictory evidence about how the injury occurred.
It is true that a different decision-maker may well have arrived at a different result by reference to the same information. However, as I have said, that is not the test for legal unreasonableness on an application for judicial review. The reasons of the Tribunal provide an evident and intelligible justification for the refusal for the visa, and I do not otherwise consider that any of the remaining grounds of appeal have been established.
It follows that the appeal must be dismissed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate:
Dated: 29 November 2018
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