BVL16 v Minister for Immigration

[2018] FCCA 1220

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVL16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1220

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection visa – where Applicant seeks impermissible merits review – weight of country information – no jurisdictional error – application dismissed.

Legislation:

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

Cases cited:

Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1.
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10.

Applicant: BVL16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1528 of 2016

Judgment of: Judge Hartnett

Hearing date: 16 April 2018

Delivered at: Melbourne

Delivered on: 16 April 2018

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Mr Cunynghame

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1528 of 2016

BVL16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. By application filed on 19 July 2016, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 29 June 2016, wherein the Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa (‘the visa’).  The grounds of application are 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 with 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 (sic) 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.”

2. The First Respondent seeks dismissal of the application and costs.

3. The Applicant and First Respondent rely on written submissions filed by them in the proceedings. There is also before the Court the evidence as contained in the Court Book filed 16 January 2017. 

Background

1. On 9 September 2014, the Applicant arrived in Australia as the holder of an electronic travel authority. He then departed Australia on 4 November 2014, returning subsequently to Australia on 7 January 2015.  The electronic travel authority expired on 7 April 2015. 

2. On 19 March 2015, the Applicant applied for the visa.  He claimed to fear harm in Malaysia on the basis of his involvement with Bersih 2.0, being a civil society movement group. The Applicant claimed his name was listed as a result of his involvement with the Bersih 2.0 civil society movement, which meant the “government no bother on my safety requirement”. He claimed that in 2013 he was attacked by several men dressed in police uniform and they threatened him.  He reported the incident to the police station.

3. He claimed further that if he goes back to Malaysia, he will face many problems such as getting a job, mental torture, killing, blackmail and other problems.  If he returns he claimed, he will most likely face threats. 

4. On 16 April 2015, the Applicant was sent a letter acknowledging receipt of his protection visa application. The letter included an invitation for him to contact the Department of Immigration and Border Protection (‘the Department’) to arrange an interview to discuss his claims.  No response from the Applicant was received.  The delegate of the Minister for Immigration and Border Protection (‘the delegate’) therefore proceeded to make a decision based on the information then before her.

5. On 3 August 2015, the delegate refused to grant the Applicant the visa.  On 12 August 2015, the Applicant applied to the Tribunal for a review of the delegate’s decision.  On 26 May 2016, the Tribunal invited the Applicant to attend a hearing before it on 28 June 2016 to give evidence and present arguments relating to the issues in his case.  The Applicant attended the Tribunal hearing with the assistance of an interpreter fluent in the English and Malay languages.

Tribunal Decision

1. On 29 June 2016, the Tribunal affirmed the delegate’s decision not to grant the Applicant the visa. The Tribunal noted the criteria for a protection visa are set out in s.36 of the Migration Act1958 (Cth) (‘the Act’) and Schedule 2 to the Migration Regulations 1994 (Cth). In paragraph 14 of the Statement of Decision and Reasons (‘the Decision Record’) the Tribunal correctly set out that the issues on review were whether the Applicant had a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Migration Act 1958 (Cth) (‘the Act’) and if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there was a real risk he would suffer significant harm.

2. As set out in paragraphs 17 and 18 of the Decision Record, the Tribunal did not accept that the Applicant had any involvement with Bersih or that he participated in any Bersih rallies.  Further:-

   “ .. The Tribunal found the applicant’s evidence regarding Bersih to be inconsistent with independent information. The Tribunal notes that according to the independent information, Bersih was first launched in November 2006, and the first rally was held on 10 November 2007. While the applicant responded that he said it was a coalition and then it became Bersih, as the Tribunal put to the applicant it began as a coalition of 64 non-government organisations in November 2006 and in April 2010 the movement was re-named Bersih 2.0 and this was as a fully non-partisan movement free from political influences, as opposed to a political party as claimed by the applicant. The Tribunal finds the country information does not suggest Bersih was first launched in April 2011 as claimed by the applicant or that the first rally was held in April 2011.  As stated in the article What You Need To Know About Malaysia’s Bersih Movement, from The Straits Times (The Straits Times 27 August 2015…) the first rally by Bersih was on 10 November 2007, the second rally on 9 July 2011 (and not June as the applicant claimed) and the third rally was held on 28 April 2012 (as opposed to sometime in 2013 as the applicant asserted).  The applicant claimed that Bersih was relaunched in June 2010 and Dato Ambiga Sreenevasan became chairperson in 2011 and he joined again. While the Tribunal accepts on the country information that Dato Ambiga became chairperson of Bersih 2.0 on 19 June 2011, consistent with the applicant’s evidence, the Tribunal does not accept given its other concerns regarding the applicant’s knowledge of when Bersih was first launched and his inconsistent evidence in relation to when the protests that he allegedly protested in were held, that the applicant had any involvement with Bersih, including participation at any of the rallies. 

   18. The Tribunal also found the applicant’s evidence regarding the goal or aim of Bersih to be vague and lacking in detail.  His evidence, as discussed above, was that Bersih wanted the government to be clean and clear because they hid too much and that they did not agree with changes being made by the government in relation to issues such as petrol and the GST. However, as the Tribunal put to the applicant in the hearing, according to independent information, Bersih is a movement calling for a thorough reform of the electoral process in Malaysia. The independent information before the Tribunal, including information from the Bersih website, provides that the aim of Bersih is to ensure that there are clean and fair elections and during the Bersih 2.0 rally, which the applicant allegedly attended, there were eight particular demands which all focused on reform of the electoral process in Malaysia. The Tribunal finds the applicant’s knowledge of Bersih and what the movement aims to achieve is not consistent with the country information or with a person who had allegedly participated in a number of Bersih rallies.  The Tribunal finds it implausible that if the applicant had participated in three demonstrations that he would not articulate in any way, when asked about the goal of Bersih, that its demand is for free and fair elections in Malaysia.”

3. Further at paragraph 20, the Tribunal did not accept :-

   “…that the applicant was listed, as he claimed in his protection visa application. As the Tribunal noted in the hearing, the applicant’s evidence was that he was able to leave Malaysia and travel to Australia in September 2014 and return again without any problems or difficulties. He again departed the country in January 2015 without any difficulty. The Tribunal finds the applicant’s ability to travel in and out of Malaysia without any trouble suggests that his name is not listed as claimed and that he is of no interest at all to the authorities.”

4. The Tribunal did not accept that the Applicant faced a real chance of persecution on the basis of his political opinion based on his alleged association with Bersih, and was not satisfied he had a well-founded fear of persecution as required by s.5J of the Act. The Tribunal relied on its anterior findings in relation to the Refugee Convention to find that the Applicant did not face a real risk of significant harm from the police or the Malaysian authorities as a result of his claimed activities.

5. The Tribunal concluded that the Applicant did not meet the refugee criteria in s.36(2)(a) of the Act or the alternative complementary criteria in s.36(2)(aa) of the Act.

Consideration

1. 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.[1] 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. 

   [1] NAHI v Minister for Immigration and Multicultural Affairs [2004[ FCAFC 10, 11-13;  Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 216 ALR 1, 8 (Gleeson CJ).

2. The application is dismissed and costs follow that event.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 15 May 2018