Bzi17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 717
Federal Circuit and Family Court of Australia
(DIVISION 2)
BZI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 717
File number(s): MLG 943 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 2 September 2022 Catchwords: MIGRATION – protection visa – credibility finding based on unwarranted assumption – a finding by any other name – niche subject with no evidential basis Legislation: Migration Act 1958 (Cth) ss 5AAA, 36 Cases cited: BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
DFW18 v Minister for Home Affairs [2019] FCA 599
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1
Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1
Linfox Australia Pty Ltd v Fair Work Commission (2013) 240 IR 178
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration & Multicultural Affairs v SBAA [2002] FCAFC 195
Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1
SZHYH v Minister for Immigration and Border Protection (No 3) (2019) 165 ALD 463
SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452
WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of hearing: 15 March 2022 Place: Sydney Counsel for the Applicant: Mr JR Murphy Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondents: Ms D Gang Solicitor for the Respondents: Mills Oakley ORDERS
MLG 943 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BZI17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
2 september 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 11 April 2017 into this Court for the purpose of quashing it.
3.A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to re‑determine, according to law, the application for review before it.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
By an application to show cause filed with this Court on 8 May 2017, the applicant seeks judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) made on 11 April 2017 affirming a decision of a delegate of the first respondent (delegate) refusing to grant the applicant a protection visa (visa).
Background
The background to this matter is derived from the written submissions advanced for the applicant by reference to the Court Book (CB) and a corrected transcript (T) of the Tribunal hearing which was annexed to an Affidavit of James Clarke affirmed on 10 March 2022, which replaced an earlier version of the transcript which was annexed to an Affidavit of James Clarke affirmed on 15 February 2022. Both Affidavits were filed for the applicant and read on his behalf at the hearing.
The applicant is a (now) 62 year old male citizen of Malaysia who arrived in Australia on 6 November 2015 travelling on a visitor visa, having departed Malaysia from Kuala Lumpur International Airport (CB 21).
On or about 3 February 2016, the applicant applied for the visa (CB 1). The visa application appeared to have been completed without any legal assistance, albeit the applicant told the Tribunal that he had paid someone who was not a migration agent to assist him in its completion, but that this person had omitted important details from the application (T 4 to 5 and 12).
On 10 March 2016, the delegate refused the visa application (CB 63 to 77). The delegate’s decision was notified to the applicant under cover of letter which was sent by email on the same day (CB 60 to 62).
The applicant’s claims included the following personal background:
(a)he was born and raised during his younger years in Sabah province, Malaysia (CB 14) and is a Muslim of Pashtun ethnicity;
(b)from 1992 until his departure from Malaysia in 2015, the applicant claimed that he lived in Malacca (CB 27);
(c)from 2000 until his departure from Malaysia in 2015, the applicant ran a wholesale clothing business in Malacca (CB 29 and 32); and
(d)throughout his life in Malaysia, the applicant had travelled internationally, including to the United Kingdom and Thailand (CB 26).
The applicant claimed that in mid-2015 he entered into a business deal with a Chinese businessman who, it was later discovered, had provided false cheques (CB 32). The applicant claimed that as a result of this he had been unable to pay his own supplier, who was an Indian Malaysian connected to gangsters and police (supplier) (CB 32 and 33), in turn. The applicant claimed that, in August 2015, the supplier threatened to kill him if he did not repay the debt by the end of the month (CB 32 and T 19).
The applicant claimed that in early September 2015 he was abducted from his house by gangsters (associated with the supplier) and detained for about two weeks (CB 32 and T 23 to 24). The applicant claimed he was released only after assuring his captors that he would pay the debt to the supplier (CB 32). The applicant claimed that, between September and November 2015, he stayed at a friend’s place and made arrangements to come to Australia (CB 32) and during that time he heard about people frequently visiting his former house looking for him (CB 32).
On 21 September 2015, the applicant’s Malaysian passport was renewed (CB 22 and 57). From 22 to 24 October 2015 the applicant travelled to and from Thailand (CB 26, 59) which journey he described in the visa application as a “business trip” (CB 26).
Following the notification to him of the delegate’s decision on 10 March 2016, the applicant applied to the Tribunal for review of that decision on 16 March 2016 (CB 78 to 79). On 23 March 2016 the applicant submitted a copy of the delegate’s decision to the Tribunal (CB 84). On 19 January 2017 the Tribunal wrote to the applicant to invite him to a hearing (CB 103 to 105). A “Case Note” of the Tribunal records that the applicant telephoned the Tribunal on 23 February 2017 (being the day before the scheduled hearing) to say that he would attend the hearing and to request an interpreter in the Pashto language (CB 106).
On 24 February 2017 the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Pashto language (CB 107 to 109 and 118 at [18]). The applicant brought his passport to the hearing (CB 110).
On 11 April 2017 the Tribunal notified the applicant of its decision made that day, affirming the delegate’s decision to refuse him the protection visa.
Tribunal decision
The Tribunal summarised the applicant’s claims and the evidence he gave at the Tribunal hearing (CB 117 to 119 at [10] to [32]). The Tribunal accepted that the applicant is a citizen of Malaysia and that there was nothing to suggest he had a right to enter and reside in any other country (CB 120 at [33] to [34]).
The Tribunal set out principles pertaining to the assessment of credibility (CB 120 at [35] to [39]) before embarking on such an assessment (CB 121 to 123 at [40] to [54]).
The Tribunal accepted the applicant’s personal background as to his birthplace, where he grew up, his family status and ethnicity. The Tribunal also accepted that the applicant had a limited education and could read and write some Malay and English, but only speak Pashto (CB 121 at [40] to [41]) and that his claimed employment background as a salesman in Malacca was true (CB 121 at [42]).
However, beyond the acceptance of those matters the Tribunal expressed credibility concerns regarding the applicant’s protection claims.
The Tribunal referred to country information regarding the attitude of Malaysian authorities to criminal activities by money lenders and that the authorities are very vigilant about Indian gangs (CB 121 at [44]).
In relation to the applicant’s claimed abduction, the Tribunal found as follows at [45] (CB 121):
It was put to the applicant during the scheduled hearing that this specific claim about his abduction for a substantial period of time where he was only threatened but not harmed by a gang the applicant claimed was ruthless and violent was implausible and that it would be more likely that such a gang would have warned the applicant without kidnapping him and that the gang members would be more interested in keeping the applicant conducting his business in order to recover outstanding monies. The applicant claimed that kidnapping was part of the gang's usual practice or modus operandi. The Tribunal finds this specific set of claim about the applicant's abduction in the past to have been highly unlikely and it further invited the Tribunal to consider whether there were other aspects of the applicant's claims of indebtedness and past harm did not occur.
The Tribunal went on at [46] (CB 122) to find that:
Had the applicant had been genuinely abducted and threatened by a violent criminal organisation because he owed a well-connected former business supplier a considerable amount of money as claimed, it would have been reasonable to expect the applicant not to have departed Malaysia only to have returned, even [though] the return was brief and to depart Malaysia for Australia, given the applicant's serious and urgent claims that he would be seriously or significantly harmed by an organisation that operated criminally with corrupt links to officials throughout Malaysia. Had the applicant had a genuine personally held fear based on past threats and harm as claimed, it would have been reasonable for the applicant to have avoided returning [to] Malaysia and to have departed for Australia through Thailand when the applicant had the opportunity.
The Tribunal then found that having cumulatively considered its credibility concerns and “based on the applicant’s otherwise implausible claims” and the “lack of urgent behaviour” constituted by returning to Malaysia from Thailand, caused it to make adverse credibility findings, following which the Tribunal went on to reject the applicant’s claims which included a statement that “the applicant does not have any credible claims” that he would be targeted on return to Malaysia by any criminal organisation, former business partner or supplier (CB 122 at [47] to [50]).
The Tribunal proceeded to conclude that the applicant did not have a well-founded fear of persecution in Malacca or anywhere else in Malaysia in the foreseeable future pursuant to s 36(2)(a) of the Migration Act 1958 (Cth) (Act) (CB 123 at [53]) and also found that based on its anterior adverse credibility findings, there was no real risk of significant harm pursuant to s 36(2)(aa) of the Act (CB 123 at [54]).
Application to this Court
The applicant commenced the instant proceedings by an application to show cause filed with this Court on 8 May 2017 (originating application) at which time he was represented by solicitors. On 21 November 2017 a Registrar of the Court made orders in the matter for its preparation which included a grant of leave to the applicant to file an amended application 28 days before the final hearing.
On 4 June 2019 the applicant’s originally retained solicitors withdrew from their representation of him. On 27 October 2021 the matter was brought into my docket and a Registrar of the Court made further directions which had the effect of allowing any amended application to be filed for the applicant, together with written submissions, 14 days before the hearing. On 13 December 2021 the applicant’s current solicitors filed a Notice of Address for Service in the proceedings. The matter was ultimately listed for hearing before me on 15 March 2022 and the applicant filed a proposed amended application together with written submissions on 15 February 2022, being in advance of the time required.
Each of the applicant and the first respondent filed written submissions and those parties were each represented by Counsel at the hearing. I have been assisted by all the submissions made for the parties.
At hearing the Court Book was tendered for the first respondent and marked Exhibit “1R”. As noted above, both of the Affidavits of James Clarke affirmed on 15 February 2022 and 10 March 2022 were read for the applicant (without objection).
Grounds of application
By his amended application the applicant raises the following 2 grounds:
1.The Tribunal made a finding of fact based on no evidence or that was irrational or illogical.
Particulars
a. The Tribunal dismissed as implausible the Applicant's claim to have been abducted by a gang and threatened, stating (at [45]) that "it would be more likely that such a gang would have warned the applicant without kidnapping him and that the gang members would be more interested in keeping the applicant conducting his business in order to recover outstanding monies".
b. The Tribunal's assessment presumes that the kidnapping did not occur at all, because gang members would be more interested in keeping the applicant conducting his business in order to recover outstanding monies.
c. There was no evidence before the Tribunal of any practice of Malaysian gangs concerning the enforcement of debts to them.
d. There was no logical or rational basis for the Tribunal’s finding above at (a).
2. The Tribunal erred jurisdictional [sic] in that it:
a. failed to consider a substantial and clearly articulated claim, or a claim clearly arising on the evidence before the Tribunal, or otherwise failed to consider evidence of significance, that the Applicant would be threatened, harassed, and discriminated against by police because of his ethnicity, which was founded upon the Applicant’s description of his previous experience, including being detained by police for 24 hours; and/or
b. failed to complete its statutory task of engaging in a qualitative assessment of the harm the Applicant would experience if he was to be threatened, harassed, and/or discriminated against by police in the future.
Particulars
a. At the hearing, the Applicant claimed that he feared discrimination or ill-treatment by the police because of his Pashtun ethnicity.
b. This claim was made by reference to the Applicant’s description of a past occasion on which he had been arrested and detained by police for 24 hours (arrest claim/evidence), which was in addition to more frequent low-level police stops he had also experienced.
c. As to ground 2(a), the Tribunal failed to consider the arrest claim/evidence.
d. In the alternative, as to ground 2(b), if the Tribunal did consider the arrest claim then it nevertheless failed to complete the statutory task by failing to perform the qualitative assessment of the harm the Applicant was at risk of experiencing if he were to be returned to Malaysia and again to face the discriminatory police practices he had described (including racially-based detention).
Ground 1
By ground 1 the applicant contends that the Tribunal’s finding was made without evidence or was irrational or illogical. The finding sought to be impugned is that which has been extracted above at [18].
The essence of this ground is that in making its credibility findings the Tribunal (at [45]) proceeded on an unwarranted assumption about the manner in which gangs operated during a kidnapping.
The applicant placed reliance on the decision of SZHYH v Minister for Immigration and Border Protection (No 3) (2019) 165 ALD 463 per Allsop CJ. In SZHYH the Tribunal made findings about the manner in which the applicant had left his country of origin. Amongst those findings was that, had the applicant been released on bail, the authorities would have required him to surrender his passport despite there being no independent country information before the Tribunal to that effect. Those findings went to the Tribunal’s overall view of the applicant’s credibility. On appeal, the Court found at [46]:
The Tribunal was bringing (without any apparent basis in expressed expertise country information or material before it) an apparent personal assumption forward as a critical factor in a finding of disbelief.
Additionally in SZHYH, the Tribunal also found it to be inherently unlikely that the authorities would have waited for a fortnight before arresting the applicant for his participation in a protest. Having regard to those matters the Court found the following at [53] and [55]:
[53] When one looks at the fragility of all the findings of inconsistency one cannot conclude other than that the Tribunal has not engaged with its task reasonably, in the sense discussed in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1;329 ALR 491; [2016] FCAFC 11 at [5] and [12]. How possibly could a two week delay in arrest by the PSB in a Chinese city, after demonstrations be seen as inherently unlikely? If bribery took place, how is leaving China without difficulty unbelievable? The so-called inconsistencies about the bribery do not withstand analysis when looked at in the light of previous accounts earlier summarised by a delegate…
…
[55] Looking at the totality of the Tribunal’s decision and so many of the stages of its reasoning process on such an important question as the truthfulness of the appellant being flawed, it follows that the decision was legally unreasonable.
Not long before SZHYH was delivered, two decisions of the Full Federal Court considered Tribunal decisions in which credibility findings of the Tribunal were found to be unreasonable or illogical on the basis that the decision-maker had made unwarranted assumptions along the way to making ultimately adverse assessments of the applicants’ respective credibility.
In DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 the applicant’s protection claims were based on his homosexuality, which he said gave rise to a well-founded fear of persecution. The Tribunal relied upon there being a lack of independent eye-witnesses to the applicant’s activities as a homosexual and relied, inter alia, on an unwarranted assumption that the applicant would have a larger number of previous sexual relationships if he were genuinely homosexual: see DAO16 at [45].
In BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 the Full Federal Court considered a decision of a Tribunal which had found that the applicant’s claim to have been brutally assaulted was not credible because there had not been posts on social media about it. This was despite the fact that the Tribunal had information before it which said that the applicant’s country of origin had strict social media controls. The Full Federal Court stated at [36]:
Similarly, in Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 at [48]–[49], the Full Court referred to the need for there to be “an active intellectual engagement” with the consideration in question and explained that a party should not be “left to guess” what role, if any, that consideration had played in the decision. Thus, in MZYPW v Minister for Immigration and Citizenship (2012) 289 ALR 541, the Full Court held that the Tribunal had fallen into jurisdictional error by failing to engage with the substance of the applicant’s submission in that it had merely recorded that a “submission” was made by the visa applicant and left unstated how the submission was resolved: at [19]–[20] (Flick and Jagot JJ) and at [38] (Yates J). Similarly, “[u]nwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it”: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 (SZVAP) at [22] (Flick J) (citing WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54] (Lee and Nicholson JJ)); see also eg SZLGP v Minister for Immigration and Citizenship (2009) 181 FCR 113 at [34]–[37] (Logan J). Unwarranted assumptions may also establish that a finding is illogical, irrational or not founded on any probative evidence: see eg DAO16 at [45] (the Court).
The reference to SZVAP (which considered WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at [54]) was another decision which considered unwarranted assumptions in the context of adverse credibility findings.
The first respondent’s response to this ground is twofold and says firstly that the statement of the Tribunal sought to be impugned by this ground is not a finding and, secondly, there was no indication that the Tribunal reasoned from an unwarranted assumption.
In relation to the first of these limbs, the first respondent says that the actual finding in relation to the kidnapping claim is later in [45] where the Tribunal said:
The Tribunal finds this specific set of claim (sic) about the applicant's abduction in the past to have been highly unlikely…
The first respondent says that the challenge by the Tribunal to the applicant’s account during the hearing cannot be taken to be a finding in itself but rather that it “merely captures” the Tribunal’s testing of evidence in the ordinary course of its review task. The first respondent says that the statement sought to be impugned by ground 1 is one of several questions put to the applicant at hearing so that he could better explain his evidence about the gang’s behaviour and his response to it. The Court was referred to multiple passages of the transcript. While the first respondent says that the Tribunal ultimately did not accept the applicant’s evidence and made a finding to that effect at the end of [45] of its reasons, the expression in question regarding the conduct of the gang is not a finding itself.
In relation to the assertion that there was also no unwarranted assumption about Malaysian gang behaviour, the first respondent says that the Tribunal did not make an unwarranted assumption, rather it led the applicant through a series of logical possible behaviours which a gang might have chosen. The first respondent says that on this basis, there being no assumption, the reasoning in SZHYH does not arise in the manner the applicant claims.
The suggestion that the statement slightly earlier in [45] of the Tribunal’s reasons is not a finding must be rejected.
Firstly, the structure of the Tribunal’s decision has work to do and, in this regard, the following is noteworthy:
(a)the Tribunal’s decision has only a few headings throughout. Under a heading “ASSESSMENT OF CLAIMS AND FINDINGS” the Tribunal included several subheadings, one of which is “Credibility”, with the heading thereafter being “Residual claims”;
(b)the section devoted to credibility spans [35] to [54] and at [43] the Tribunal says the following (errors in original):
However the Tribunal has considerable credibility concerns about these claims put tby the applicant in his written claims and then elaborated upon by the applicant during the scheduled hearing for the following reasons:
(c)there is a disconnection between that paragraph ending with a colon (following which one would traditionally expect sub-paragraphs) and the fact that the Tribunal continues with substantive paragraphs. As a result, one might think the colon was just a typographic error were it not for the fact that the Tribunal re-deployed the same structure at the conclusion of [47] where it said:
In the context of the country information and based on the applicant’s otherwise implausible claims and his lack of urgent behaviour in returning to Malaysia after departing to Thailand, the Tribunal makes the following adverse credibility findings:
(d)from [48] to [52] the Tribunal makes express findings before concluding at [53] that the applicant does not have a well-founded fear of persecution satisfying s 36(2)(a) and at [54] that, based on its foregoing adverse credibility findings, the Tribunal is also not satisfied that the applicant meets the complementary protection criterion in s 36(2)(aa).
At hearing, in response to the position that there was no “finding” such that the statement about the implausibility about the gang’s conduct could not be said to be founded on an unwarranted assumption, the applicant’s Counsel relied on SZHYH in this context also. In particular, attention is drawn to [32] of that judgment where the passages sought to be impugned were set out in full. In that case the Tribunal expressed itself similarly to the instant Tribunal decision when it found that:
[SZHYH] has consistently said that he was arrested on 8 February 2005, The Tribunal at [56] of the decision record found it “difficult to accept” that there would be a two week gap between the protest and his arrest:
Chinese New Year’s Eve, and at the hearing before me he said that this had maybe been a few days after the protests which he claims to have organised in Sanshan Town and Fuqing City. As I put to him, the wanted notice which he has produced — if it were accepted as genuine — suggests that the protest in Sanshan Town took place on 20 January 2005. [SZHYH] said that he had forgotten the exact time. After I put to him that it was a little difficult to accept that, if the government had wanted to stop him from organising protests, they would have waited for over two weeks before arresting him, he said that according to the government’s standard operating procedure they would not set a certain day for a certain case. He said that they might think which day was the most important date so they would write down that date. After I asked him if he was saying that they had waited for Chinese New Year’s Eve because it was an important date he said that it was a matter for them when they would arrest him. He said that he had not known why and when they would arrest him because of his organising the public. I accept that it would of course have been a matter for the Chinese authorities when they arrested [SZHYH] but I remain of the view that it is difficult to accept that, if the protest had taken place on 20 January 2005 as suggested by the wanted notice — which [SZHYH] maintains is genuine — the Chinese authorities would then have waited for over two weeks before arresting him.
(emphasis added)
The applicant says (by reference to [32] of SZHYH) that the manner in which the findings were expressed there is similar to those in this case.
As will be noted from the extract from SZHYH set out at above at [41], the recounting along the way in the Tribunal’s decision of matters traversed at a hearing, namely where the Tribunal has challenged a claim or account and reproduces that exchange particularly when highlighting doubts arising from the evidence, is a valid method of expressing factual findings which flow from that discourse.
Reading the paragraph within the context of the entire section on credibility reveals that the instant Tribunal made findings in earlier paragraphs such as the acceptance in [41] of certain of the applicant’s attributes.
At the conclusion of [44] the Tribunal stated:
Based on the available country information, there is a further reason not to find the applicant’s claims of indebtedness and past harm did not occur.
(emphasis added)
Fully contextualised, and noting the following statement at the conclusion of paragraph [45] that (emphasis added and errors in original):
The Tribunal finds this specific set of claim about the applicant’s abduction in the past to have been highly unlikely and it further invited the Tribunal to consider whether other aspects of the applicant’s claims of indebtedness and past harm did not occur.
the impugned statement in [45] is “sandwiched” amidst findings. It is not the case that the Tribunal’s findings on credibility do not commence until [48]. In order for the Tribunal to find at [44] that there was a “further reason” to make a finding that the applicant’s claimed incidents of harm arising from debts had not occurred, it is implicit that the Tribunal considered that it had already made a finding in that regard such that there could be a further one where at paragraph [45] the Tribunal stated that it found the claims to be highly unlikely such that this “further invited” the Tribunal to consider whether other claims had also not occurred.
I do not accept the first respondent’s contention that by the statements at [45] the Tribunal was not making a finding.
Turning then to whether this finding was predicated on an unwarranted assumption, while the factual scenario which underpins the applicant’s claims is unique to him, there is no relevant distinction in the manner in which the present Tribunal reasoned and the erroneous fact finding exercise identified in BZD17, DAO16 and SZHYH. The Tribunal trespassed beyond the jurisdictional limits of proper and logical fact finding. There is no material before the Court which grounds the finding about the methods employed by gangs in Malaysia in the undertaking of kidnapping, and there appears to have been none before the Tribunal. A finding about the methods employed by a Malaysian gang in kidnapping could not be made simply as a matter of common sense or a reasonable appreciation of human experience. There is also nothing before me to suggest that the Tribunal drew on or personal or specialised knowledge about kidnapping in Malaysia: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1 at [39] per Allsop CJ, Besanko and O’Callaghan JJ (citing Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403 at [17] to [21]).
That being so, absent independent material on the topic and given the niche nature of the subject matter involved in that finding the Tribunal could only be bringing “an apparent personal assumption forward as a critical factor as a finding of disbelief”: see SZHYH per Allsop CJ at [46].
In this regard, I find the Tribunal committed jurisdictional error.
The first respondent contended that if the Court were to make that finding, the error would not be material because it could not have realistically resulted in a different decision: see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] per Bell, Gageler and Keane JJ. I disagree.
Aside from constituting a rejection of a central claim made by the applicant to fear harm in Malaysia, the somewhat curious structure of the Tribunal’s credibility findings (see [39] above) inextricably linked the impugned finding at [45] with the Tribunal’s overall conclusions. I accept the applicant’s submission because the Tribunal used its rejection of that claim as being an invitation to it to consider whether there were other aspects of the applicant’s claims of indebtedness and past harm which did not occur. In essence the impugned finding in [45] was the foundation upon which the Tribunal grounded its further doubts as to the applicant’s credibility. Undertaking a counterfactual analysis, had the Tribunal not erroneously applied its own personal and unfounded assumption in the making of the finding, it could have taken a different view in relation to other claims and the applicant’s credibility. This may, in turn, have resulted in a different decision and I therefore find the error to be material.
Ground 2
By this ground the applicant alleges the Tribunal constructively failed to exercise jurisdiction by failing to consider a claim which he says was clearly articulated, namely that he faced harm at the hands of police because of his ethnicity. The applicant contends that in the alternative, if the claim were found to have been considered by the Tribunal, the Tribunal failed to engage in an qualitative assessment of it.
The relevant and well accepted principles in this regard are not in dispute between the parties and include that:
(a)the Tribunal is required to deal with each substantial, clearly articulated and factually supported claim: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55] and SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452 at [50];
(b)the Tribunal was required to conduct a “review” within the meaning of the Act: see NABE (supra) at [48] to [51]. This requires the decision maker to engage actively with the relevant issues (BZD17 (supra) at [35]) and in an “active intellectual process” with the material put before it: see Minister for Home Affairs v Omar (2019) 272 FCR 589 at [36(d)];
(c)where significant evidence is not evaluated, it can constitute a constructive failure to exercise jurisdiction: see Minister for Immigration & Multicultural Affairs v SBAA [2002] FCAFC 195 per Wilcox and Marshall JJ at [44] and Linfox Australia Pty Ltd v Fair Work Commission (2013) 240 IR 178 at [47]; and
(d)an applicant should not be left to guess what, if any, role a particular claim or consideration played in the overall decision: see Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 at [49] cited with approval in BZD17 (supra) at [36].
The applicant concedes that claims made in writing relating to harm from police connected to the supplier were limited, but says that at the hearing he articulated further important matters in this regard including:
(a)a general claim to have been harassed by police when in the company of Malaysian women on dates (T 10); and
(b)a claim that on one occasion he was detained and the authorities did not believe that he was Malaysian and did not release him until they confirmed that he was (T 33.9 to 33.15), which was said to not have been included in the written claims because “he” (meaning the person who had prepared the applicant’s protection visa application) “said to me that you tell them verbally” (T 33.24).
The applicant says that while the Tribunal “diligently” dealt with some of the claims raised for the first time at the Tribunal hearing, it failed to deal with the claim to fear harassment and/or discrimination from police and did not refer to this claim at all, or otherwise that if this claim was considered, there was not an adequate qualitative assessment undertaken.
In response, the first respondent says that the absence of certain claims from the protection visa application does not absolve the applicant of responsibility for its content because he was not a passive observer in its preparation and in any event he chose to submit it in the form lodged. The first respondent says that if the applicant had wanted to clearly articulate a precise claim of police harassment and discrimination, he could have done so in the manner in which other claims were detailed.
In this regard, the first respondent relies on s 5AAA of the Act which relevantly provides:
Non-citizen’s responsibility in relation to protection claims
(1)This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
(2) For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
Next, the first respondent says that the applicant’s claim about racial discrimination was discussed by the Tribunal’s in its questioning of the applicant (T 30.26) but was not an independent and/or substantial claim raised by him. Rather, it is said that the applicant’s oral evidence about police and immigration authorities’ harassment in the context of racial discrimination was limited to three pages of the transcript (T 30.26 to 33.27) comprised of:
(a)complaints about how low level harassment and disbelief about the applicant’s origins;
(b)complaints of three raids by immigration authorities in Malaysia during which he was said to have been verbally abused and accused of not being Malaysian; and
(c)being requested to show proof of Malaysian citizenship at a blockade and at a hospital, after which he made the claim about the 24-hour detention (see [55(b)] above) but the first respondent points out that it was not clear who detained him, whether there was any authority to detain him, where the detention was, whether any event triggered it (whether the applicant was at fault or not), or what his detention conditions were.
The first respondent submits that in contrast to the applicant’s contention, this was not a substantial, clearly articulated and factually supported claim and all that could be derived from these various complaints was that over the course of five decades, the applicant was occasionally challenged about his citizenship because of his appearance. While this characterisation somewhat over-simplifies the assertions made, it is broadly correct.
To the extent that some particulars of discrimination emerged during the course of the Tribunal hearing, they were adequately dealt with by the Tribunal (in the sense of being assessed, considered and resolved in an active and qualitative way). At [55] of the Tribunal decision, under a heading, “Residual claims”, the Tribunal:
(a)considered the applicant’s mixed ethnicity;
(b)considered a claim that the applicant would not be provided with effective state protection based on that ethnicity;
(c)considered country information regarding potential discrimination against Pakistani migrants or Malaysians of Pakistani origin;
(d)accepted that the applicant had suffered some past harm including that police were incredulous about his nationality based on his racial appearance; and
(e)accepted that the applicant had difficulties forming and maintaining relationships with ethnically Malay women.
Having considered those matters the Tribunal accepted that there was a real chance and a real risk of some harm to the applicant in the form of low-level discrimination on return but that this would not be serious harm including any severe physical harassment, harm or extreme humiliation.
To the extent the applicant made claims regarding potential police harassment including discrimination, the Tribunal met this claim with a proper consideration and there is no jurisdictional error present as alleged by ground 2.
In my view, ground 2 is not made out.
Conclusion
Based on the facts and circumstances set out above, I am satisfied that the applicant has succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error as alleged by ground 1.
Accordingly, I will grant relief in the form of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 2 September 2022
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