BZG17 v Minister for Immigration
[2018] FCCA 1328
•23 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZG17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1328 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5H, 368, 430, 476 |
| Cases cited: Applicant S v Minister for Immigration [2004] HCA 25 Kocakaya v Minister for Immigration [2013] FCA 55 Minister for Immigration v Guo Wei Rong (1997) 48 ALD 481 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 SZSMQ v Minister for Immigration & Anor [2013] FCCA 1768 |
| First Applicant: | BZG17 |
| First Applicant: | BZH17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1406 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2018 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | Ms K Garaty of HWL Ebsworth |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1406 of 2017
| BZG17 |
First Applicant
| BZH17 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 10 April 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
Background facts relating to the applicants’ protection claims, and the decision of the Tribunal on them, are set out in the Minister’s outline of legal submissions.
The applicants are a wife and husband from Malaysia (the first applicant and second applicant, respectively). They arrived in Australia on 17 April 2016, on visitor visas. Both applicants identify as being of Indian ethnicity and Hindu faith.
On 15 July 2016, the applicants applied for a protection (subclass 866) visa. The applicants each completed a form 866C and made separate, but similar, claims for protection.[1]
[1] Court Book (CB) 1 to 76
In summary, the applicants made the following claims:
a)the first applicant's family did not approve of her marriage and as a consequence both applicants had been threatened by the first applicant's family and a gang associated with her brother;
b)the first applicant's family had forced her to sign a divorce notice and she feared that she would not be allowed to live with the second applicant if she were forced to return to Malaysia; and
c)the applicants were victims of a “hit and run” incident in June 2014 while travelling to work one morning and when they reported the incident to police, it was recorded as an accident.
On 18 August 2016, the delegate refused to grant the applicants visas on the basis that he was not satisfied that either applicant was a person in respect of whom Australia had protection obligations.[2] The delegate found, on the basis of a balanced assessment of the available country information, that while the applicants may not have absolute protection in Malaysia, it is evident that the Malaysian authorities are able and willing to provide an adequate level of protection from the type of criminal behaviour feared by the applicants.[3]
[2] CB 96 to 107
[3] CB 105
On 29 August 2016, the applicants applied to the Tribunal for review of the delegate's decision, and attached a copy of his decision to the review application.[4]
[4] CB 108 to 125
Tribunal decision
On 6 April 2017, the applicants appeared before the Tribunal to give evidence in respect of their application and claims.[5]
[5] CB 146 to 149
The applicants' claims for protection before the Tribunal are set out at [35] to [46] of the Tribunal's reasons for decision.[6] The Tribunal sought to confirm the applicants' protection claims and they agreed the claims as expressed were correct and accurate.[7]
[6] CB 160
[7] See CB 161 at [52] and CB 166 at [88]-[89]
At the hearing, the Tribunal canvassed a number of issues with the applicants, including their relationship history, their employment, their purported experiences with the applicant's brother and the “gang” and the “hit and run” incident. The Tribunal also discussed with the applicants their reasons for coming to Australia and their decision to apply for the protection visa.
The Tribunal raised three specific concerns with the applicant's as to the veracity of their claims for protection: the first applicant's brother then lived in Singapore; that the police could offer protection (which the applicants acknowledged); and, that their actual reason for coming to Australia had been for a holiday rather than to escape harm.[8]
[8] See CB 167 at [95] and [96]
The applicants responded to the Tribunal's first two concerns stating that the first applicant's mother had told the first applicant that her brother was planning on quitting his job in Singapore and returning to Malaysia, and that the police could not offer around the clock protection.
The Tribunal noted that the brother had relocated some two months before the applicants had come to Australia, and that they had not applied for the protection visa until the day before their visitor visa was due to expire. In the Tribunal's view this did not support the existence of a well-founded fear.[9]
[9] CB 169 at [113]
The Tribunal rejected the applicants' claim the first applicant's family did not approve of their marriage.[10] The Tribunal noted that the applicants had given evidence that the first applicant's mother had, at the very least, accepted the marriage. The Tribunal also referred to the fact that neither applicant had made any reference to the first applicant's other siblings, except her brother.
[10] CB 169 at [108]
The Tribunal also rejected the applicants claim that the authorities would be unable or unwilling to protect them. In this respect, the Tribunal noted that:
a)neither the applicants nor their family had reported the brother's purported conduct to police;[11]
b)although historically police corruption has been an issue, recent country information suggests that the Malaysian government has made a concerted effort to combat corruption, and that the local police would, if requested, offer the applicants protection from the brother and/or his gang;[12] and
c)the first applicant herself had said that although she thought the police could assist, she had not approached them because she did not want to upset her mother or bring shame on the family.[13]
[11] CB 169 at [114]
[12] CB 169 to 170 at [115] and [119]
[13] CB 170 at [116]
Having had regard to evidence before it, the Tribunal affirmed the decision of the delegate.
The present proceedings
These proceedings began with a show cause application filed on 8 May 2017.
There are two particularised grounds in that application:
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
In paragraph 106 of its order the Tribunal states that "The Tribunal accepts on the basis of their consistent evidence that they met in 2010 and had a registry office marriage in 2013. The Tribunal accepts that the second named applicant met the applicants family on the occasion of the funeral of the applicant's father". In para 107 "The Tribunal accepts that the applicant's brother may well have attempted to warn off the second named applicant at the funeral. The Tribunal accepts that the brother may well have been in the company of a gang of his friends, who would most likely turn up for their friends father funeral". In paragraph 74 the Tribunal based on the country information report notes the following information "The Royal Commission to Enhance the Operation and management of the Royal Malaysian Police (RMP) in 2005 identified a perception of widespread corruption within the RMP. In response, the Government publicly acknowledged the existence of police corruption and implement reforms -" The applicant gave evidence before the Tribunal in support of her 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 719 at [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". It is submitted that while assessing applicant's creditability Tribunal did not have due regard to these aspects in the present case
2.The Tribunal and the delegate failed to consider the correct social group to which I belong, being (i) ethnic Indian of Tamil origin (ii) Hindu, young female (ii) Threatened by gangs (iii) failure of police to take action against criminals (iv) failed asylum seeker who returns to Malaysia after alleging that the police in Malaysia are ineffective and corrupt
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 but failed to consider the other aspects of the particular social group like failed asylum seeker who had blamed the Government and police of callousness and corrupt practice.
(errors in original)
The application is supported by an affidavit filed with it, which I received as a submission.
I have before me as evidence the court book filed on 6 October 2017.
Only the first applicant attended today’s show cause hearing. I invited oral submissions from her. She explained that, in her view, the key fault in the Tribunal’s decision was its failure to deal with, or deal properly with, her and her husband’s claim based on their respective castes.
The first applicant asserts that her family did not accept her relationship with her husband because he belongs to a lower caste than her. I accept that this claim was made by the applicants in their protection visa application. The Tribunal, in effect, recognised the claim at [53] and [57] of its decision. The caste claim provided a nexus with the Refugees Convention in relation to the claim of family hostility. To that extent, it constituted a particular social group claim.
There is no doubt that the Tribunal considered the claim of family hostility. The Tribunal did not specifically address it as a particular social group claim, but the Tribunal nevertheless dealt with it in finding that the claim was, to some extent, overstated. Importantly, the Tribunal dealt with the claim essentially on the basis that effective state protection would be available in Malaysia against any harm emanating from the applicant’s family. I see no error in the Tribunal’s approach. The same finding of effective state protection dealt with the applicants’ claim based on threats by the brother’s criminal gang.
In her oral submissions, the first applicant also referred to her caste creating problems for her in seeking work in Singapore. In my view, that has no bearing on a claim for protection in relation to Malaysia.
The first applicant’s remaining submissions went to the merits of the Tribunal’s decision and humanitarian considerations, which were addressed by the Tribunal.
I otherwise agree with the Minister’s submissions in relation to the grounds of review advanced.
Ground 1
Ground 1 alleges that the Tribunal unreasonably made adverse credibility findings.
The applicants appear to have misinterpreted the Tribunal's findings in this respect. Although the Tribunal raised the issue of credibility, it did not make any adverse findings in this regard. On the contrary, at [105][14] of the decision record, the Tribunal explicitly stated that it found both applicants to be reasonably forthright. The Tribunal even notes that despite there being apparent inconsistencies, both applicants dealt with them in a thoughtful and deliberative way.
[14] CB 168
The Tribunal decision is largely founded upon its finding of fact that effective state protection is available and that the applicants have chosen, for personal reasons, not to use it.
The applicants have provided a lengthy particular in support of Ground 1. Properly understood, this particular does not amount to any more than an impermissible attempt to re-open the factual findings made by the Tribunal. I have nevertheless considered the particulars.
No requirement to refer to all evidence
The Tribunal is required by s.430 of the Migration Act 1958 (Cth) (Migration Act) to set out its decision, its reasons for the decision, the findings on questions of fact it considers to be material and the evidence on which those findings of facts are based.
Although s.430(1)(d) requires the Tribunal to refer to the evidence or any other material on which findings of fact were based, a breach of this subsection will not in itself amount to a jurisdictional error.[15]
[15] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at [70]
In Kocakaya v Minister for Immigration,[16] Justice Dodds-Streeton of the Federal Court rejected an argument put before her wherein the appellant suggested that s.368 of the Migration Act (the equivalent of s.430) required the Tribunal to set out in its written statement all of the evidence that was before it. Instead, her Honour was of the view that the Tribunal was only required to record on its findings on material questions of fact.
[16] [2013] FCA 55
In my view it is clear from the reasons for decision that the Tribunal considered all of the evidence before it and made findings on material questions of fact. Accordingly, the allegation made within the particulars to Ground 1 that: “[t]he Tribunal failed to consider all evidence on record…” is without merit.
Assessing whether the applicant has a well-founded fear - the principle in Rajalingam
In support of Ground 1, the applicants refer to the decision of Justice Sackville in Minister for Immigration v Rajalingam.[17]
[17] [1999] FCA 719
Justice Sackville's comments, as cited by the applicants in their application to the Court, were made in reference to what is known as the “what if I'm wrong” test. This test requires a decision maker to consider whether its findings may be wrong when it has real doubt or lacks sufficient confidence in the correctness of its findings.[18] A decision maker is not required to ask itself “what if I'm wrong” when it has no real doubt or when it is unable to reach a state of satisfaction on the evidence so as to make a factual finding.[19]
[18] CB 184 at [67]
[19] See Minister for Immigration v Guo Wei Rong (1997) 48 ALD 481 at 492; SZSMQ v Minister for Immigration & Anor [2013] FCCA 1768 at [58]-[60]
The Tribunal’s reasons do not reveal any uncertainty or doubt that its findings in respect of material questions of fact were correct. Accordingly, the principle in Rajalingam has no role to play in the context of the applicants claims.
Further, to the extent that the applicants are attempting to cite Rajalingam as an explanation for any inconsistencies in their claims, see [28] above.
Ground 2
The second ground alleges that the Tribunal failed to consider the “correct social group” to which the first applicant, at least, belongs. The applicants contend that their correct social group is:
(i) ethnic Indian of Tamil origin (ii) Hindu, young female (iii) Threatened by gangs (iv) failure of police to take action against criminals (v) failed asylum seeker who returns to Malaysia after alleging that the police in Malaysia are ineffective and corrupt.
(numbering corrected)
Insofar as the applicants allege a failure on the part of the delegate, the Court does not have jurisdiction to review the delegate's decision.[20]
[20] See s.476(2)(a) of the Migration Act
The Tribunal must deal with a claim, and each integer of a claim, that is expressly made to it.[21] While the Tribunal is not obliged to consider “unarticulated” claims,[22] it must consider all claims that clearly arise, or emerge, from the material before it.[23]
[21] See Htun v Minister for Immigration (2001) 194 ALR 244
[22] See NABE v Minister for Immigration (No 2) [2004] FCAFC 263 at [61]-[62]
[23] NABE (No 2) at [68]
The Tribunal summarises the applicants' protection claims, as set out in their respective applications.[24] The applicants confirm the Tribunal's understanding of their claims as accurate and correct.[25] Neither applicant raised persecution as a consequence of membership to a particular social group as a claim, potential or otherwise, except implicitly in relation to the caste issue discussed above.
[24] At CB 182 at [35]-[46]
[25] See CB 183 at [53] and CB 188 at [88]
This ground is an attempt by the first applicant to bring herself within the definition of a “refugee”.[26] Neither applicant has articulated or suggested that he or she has suffered harm for reason of membership of a particular social group (except in relation to the caste issue), nor was there any evidence or material before the Tribunal could give rise to an unarticulated claim to that effect.
[26] See s.5H of the Migration Act
For completeness, and to the extent that the first applicant identifies as being a failed asylum seeker who criticised Malaysian police, see CB 188 at [85]-[87] and CB 192 at [116] wherein the Tribunal records the first applicant's acknowledgment that police could assist but that she has not approached them so as not to upset her mother. The applicants have not criticised the authorities. In addition, an attribute common to all members of a social group cannot be the “shared fear of persecution”.[27]
[27] See Applicant S v Minister for Immigration [2004] HCA 25 at [36]
Conclusion
I conclude that the applicants are unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, therefore, order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale against both applicants. I discussed with the first applicant and the Minister’s solicitor the appropriateness of making a costs order against the second applicant. I am satisfied that there is no reason to refrain from doing so.
I will order that the first and second applicants pay the first respondent’s costs and disbursements of and incidental to the application, in accordance with the Court’s scale and Federal Circuit Court Rules, in the sum of $3,667.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 25 May 2018
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