BZV17 v Minister for Immigration

[2020] FCCA 504

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZV17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 504

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision made by the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant protection visa – whether the Tribunal made an error of fact – whether the error of fact was material – whether the Tribunal otherwise considered the applicant’s claims – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 438, 476

Cases cited:

Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3

Applicant: BZV17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1423 of 2017

Judgment of: Judge Manousaridis

Hearing date: 6 March 2020

Date of Last Submission: 6 March 2020

Delivered at: Sydney

Delivered on: 13 March 2020

REPRESENTATION

Applicant in person, assisted by an interpreter

Solicitors for the First Respondent: Ms K Pieri of HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1423 of 2017

BZV17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant to the applicant a Protection (subclass 866) visa (Protection visa).

Claims for protection

1. The applicant is a citizen of Malaysia, a Tamil, and a Hindu. The applicant first visited Australia in 2000. He next arrived in Australia on 23 March 2015 on a UD 601 Electronic Travel Authority. That was valid until 27 June 2015. The applicant lodged an application with the Department of Immigration and Border Protection (Department) for a Protection visa on 5 June 2015, which was subsequently held to have been invalid (first PV form of application). The applicant lodged a valid application on 14 September 2015 (second PV form of application).

2. The applicant submitted three separate written claims. The first is the claim the applicant made in the first PV form of application in response to questions contained in that form.[1] The applicant claimed his life is in danger because his friend took money from a moneylender, and the applicant became a guarantor. Two months later the applicant’s friend ran away. The moneylender came after the applicant and tortured him to pay back the money. The applicant changed his number, but the moneylender got angry and sent some gangsters to break all the things in the applicant’s house, and also beat the applicant.

   [1] CB30-32

3. The second claim is that made in the second PV form of application.[2] The applicant there claimed he left Malaysia because he was being hunted and persecuted, and he truly believed if he did not leave he would be killed. He also claimed he has been bashed up by people chasing him, and that must have been because they wanted money, and the applicant is a popular target in his community. The applicant tried to inform the police, but police are corrupt in Malaysia. The applicant moved and lived elsewhere, but that did not help.

   [2] CB81-83

4. The third written claim is contained in a hand written statement the Department received on 29 February 2016, being the day on which the delegate interviewed the applicant (PV interview).[3] The applicant there stated he worked as a manager of a security company. While working with that company the applicant personally arrested some robbers at a power station. The robbers were stealing copper. The applicant caught a few of the robbers, and referred them to the police. Some of the robbers were sentenced to jail. After they were released from jail, some of the robbers started calling the applicant over the phone threatening to kill him. In May 2014 three persons attempted to murder the applicant. They attacked the applicant with a knife, helmet, and iron rod. The applicant escaped and then lodged a report with the police. The applicant resigned from work.

   [3] CB112

5. The applicant expanded his claims at the PV interview. The applicant said there were three written claims because he signed the first and second form of PV applications in blank. The applicant said he managed 12 supervisors, and was responsible for 280 staff;[4] and he was well known in Malaysia through his political work.

   [4] CB141, [16]. Before the Tribunal the applicant claimed he had been in charge of 12 supervisors and “300 plus guards in his role as a Manager” – CB188, [63]

6. The applicant provided the following documents to the Tribunal:

   a)A page from the “Thina Kural” Tamil language newspaper. Before the Tribunal the applicant said it contained a story about the shortage of funding for schools in the area, and that he was one of the persons in the photograph that appeared on the page.[5]

   b)Two photographs, one of persons attending a meeting the applicant claimed to have been attended by the daughter of Datuk Seri Anwar Ibrahim, the leader of the opposition party, and the other of the applicant addressing another meeting.[6] The applicant claimed he appeared in both photographs.[7] The applicant also claimed he was a member of the opposition party, the Parti Keadilan Malaysia.

   c)Four untranslated police reports the applicant claimed he had received the day before the hearing. These reports were in Malay. The applicant claimed these were cases the applicant reported to the police, and that one of them related to the attack on him.[8] The applicant also submitted a letter from the security company for whom the applicant claimed he worked.[9]

   [5] CB183-184, [23]; CB123

   [6] CB184, [24], CB170, CB171

   [7] CB184, [24]

   [8] CB188, [63]; CB173-177

   [9] CB164

7. The Tribunal asked the applicant about his claimed political work. The Tribunal, in its reasons for decision, noted the applicant said he joined the Parti Keadilan Malaysia in 2009, the applicant had some difficulty describing his role, “but settled on campaign leader for the electorate of Rantau”. The applicant said that was the electorate where “the Chief Minister was standing”, which is about 70 kilometres from where the applicant lived.[10]

   [10] CB184, [25]

8. The applicant also claimed that his eldest son had come to Australia in 2015, but was now in prison because his son stabbed the applicant in an argument. The applicant’s wife also came to Australia, and she blamed the applicant for their son being imprisoned. For this reason, the applicant’s entire family had turned against him.[11]

   [11] CB190-191, [80], [81]

Tribunal’s reasons

1. The Tribunal first considered whether the applicant was a credible witness. It concluded it “did not find the applicant to be a credible witness”.[12] The Tribunal relied on the applicant’s evidence that he “signed a blank Form C on two occasions and that the information contained in the Forms was completed by a third party”.[13]

   [12] CB183, [19]. See also CB188, [62]

   [13] CB183, [17]

2. The Tribunal then considered whether the applicant had a well-founded fear of persecution because of his political opinion due to his claimed membership of the Parti Keadilan Malaysia, and because he is a Tamil and a Hindu. Relevant to one of the matters the applicant raised at the hearing before is the following passage from the Tribunal’s reasons:[14]

   The Tribunal checked the May 2013 election results for the Rantau electorate. The election results show that the seat was won by the incumbent member, from the Pan-Malaysian Islamic Party, and the only other Party to contest that seat was from the ruling Barisan National.

   The Tribunal notes that the Prime Minister of Malaysia is Najib Razak. His electorate is Pekan. Pekan is 280 kilometres away from Kuala Lumpur.

   [14] CB184, [29], [30]

3. The Tribunal annexed to its reasons a document titled “Country Information”. It contains extracts from a DFAT Country Information Report dated 19 July 2016. It also includes information under the heading “Election results Rantau Panjang (federal constituency)”

4. The Tribunal accepted the applicant had some involvement with the Parti Keadilan Malaysia, but it also accepted the applicant’s evidence that nothing had happened to him because of his membership of the Parti Keadilan Malaysia. The Tribunal also accepted the applicant’s evidence “that his concern is that if he resumes his claimed political activity those who[m] he claimed had threatened him and attacked him in 2014 would discover his whereabouts and again seek revenge for the applicant’s role in their arrest”. The Tribunal, however, was not satisfied the applicant faced a real chance of persecution because of his political opinion, or because he is a Tamil and a Hindu.

5. The Tribunal next considered whether the applicant satisfied the complementary protection criterion prescribed by s.36(2)(aa) of the Act.

   a)The Tribunal repeated the effect of what it had already found, namely, it accepted the applicant’s evidence that he knowingly signed a blank Form C on two occasions, and relied on someone else to draft the claims for protection in his name, and that the claims there stated were untrue; and that the applicant’s willingness to put forward claims written by someone else and untrue “totally undermine the applicant’s credibility when discussing his present claims”.[15] The Tribunal also “did not find the applicant to be a credible witness”.[16]

   b)The Tribunal gave little weight to the police reports because they are in Malay and untranslated, and the hearing was conducted in English and Tamil.[17]

   c)The Tribunal did not find the applicant to have been credible when discussing the robberies, his role in apprehending the robbers, the subsequent threats, and the claimed attack on him.[18] In addition to the adverse credibility finding the Tribunal had already recorded in its reasons, the Tribunal relied on two other matters. First, the letter from the company the applicant claimed employed him does not refer to the applicant having any security role. The Tribunal considered this omission “significantly undermines the applicant’s credibility”.[19] Second, the applicant had given conflicting accounts of the attack on him.[20]

   d)The Tribunal accepted the applicant’s son was imprisoned for 18 months for stabbing the applicant during a fight, and that the applicant’s wife blames the applicant for involving the police in the matter. The Tribunal, however, was not satisfied the applicant is at risk of significant harm from his family because his son stabbed him.[21]

   [15] CB188, [62]

   [16] CB183, [19]

   [17] CB190, [75]

   [18] CB190, [78]

   [19] CB190, [76]

   [20] CB190, [77]

   [21] CB191, [84]-[86]

6. In the light of these findings, the Tribunal was not satisfied there are substantial grounds for believing the applicant will be at real risk of significant harm for any reason if he is returns to Malaysia.[22]

   [22] CB191, [89]

Course of proceeding

1. The applicant, who is not legally represented, appeared at the hearing before me with the assistance of an interpreter. As is my usual practice, I explained to the applicant the purpose of the hearing and the procedure that would be followed. I informed the applicant that he should tell me why he believes the Tribunal’s decision should be set aside. I also informed the applicant that, subject to the applicant’s views, I proposed to draw the applicant’s attention to the grounds set out in his application, and ask whether he wished to say anything about them. In the event, the applicant did not wish to address the grounds contained in the application.

Grounds advanced at the hearing

1. At the hearing before me the applicant made four submissions. The first is that the police reports that were before the Tribunal were not translated. The applicant submitted that this caused the Tribunal to have some doubt that the applicant was employed by the company the applicant claimed had employed him. The applicant also said he had additional evidence, but he informed me he did not provide this additional evidence to the Tribunal.

2. These submissions do not disclose any jurisdictional error. The Tribunal was under no duty to arrange for the translation of the documents; and the applicant did not request an adjournment to permit him time to have the documents interpreted. Further, there is nothing in the Tribunal’s reasons to suggest the Tribunal relied on the documents being untranslated to draw any adverse inferences against the applicant. The Tribunal went no further than stating it gave the documents “little weight”; and, although the Tribunal noted that the letter from the company the applicant claimed employed him did not state it employed the applicant in any security role, the Tribunal did not find the applicant was not employed by the company he claimed employed him. And the Tribunal cannot be held to have made any jurisdictional error by not considering documents the applicant did not provide to the Tribunal.

3. The second submission the applicant made has more substance. The applicant submitted the electoral results to which the Tribunal annexed to its reasons related to “Rantau Panjang”, not to “Rantau”. The applicant claimed these are the names of different electorates. During the hearing, without any opposition from the applicant or from Ms Pieri, who appeared from the Minister, I requested my associate to undertake a “Google” search of “Rantau electorate”, “Rantau Panjang”, and of “Rantau Panjang electorate”. That resulted in the printing the hearing of three “Wikipedia” entries, one titled “Rantau Panjang (federal constituency)”, one titled “Rantau (state constituency)”, and one titled “Rantau Panjang”. I admitted these documents into evidence without objection.

4. It is apparent the Tribunal was under the impression there was one electorate that included the name “Rantau”. On the face of the material the Tribunal annexed to its reasons for judgment, the Tribunal’s impression is incorrect. “Rantau” is not the same as “Rantau Panjang (federal constituency)”. The “Wikipedia” articles reinforce that conclusion. They show there are two constituencies in Malaysia that include that name “Rantau”, one a federal, and the other a state constituency. The “Wikipedia” article titled “Rantau (state constituency)” is consistent with what the applicant told the Tribunal. It is also apparent that the Tribunal equated the “Chief Minister” to which the applicant referred with the “Prime Minister”.

5. Ms Pieri, for the Minister, submitted that in the absence of the transcript, the Court could not determine what the applicant said to the Tribunal. Ms Pieri further submitted, however, that even if the Tribunal made an error, the error was not material. The Tribunal accepted the applicant had some involvement with the Parti Keadilan Malaysia, but it also accepted the applicant’s evidence that nothing had happened to him because of his membership of the Parti Keadilan Malaysia. Ms Pieri further submitted that, although the Tribunal made adverse credibility findings, it did not rely on what it found to be the discrepancies between what the applicant said at the hearing and the information it obtained in relation to the 2013 election results for “Rantau Panjang (federal constituency)”.

6. I explained to the applicant Ms Pieri’s submission, and I asked him whether he believed that that there was a real possibility that the Tribunal would have arrived at a different conclusion had it not made the mistake. The applicant said he did not think so. The applicant, however, said he was concerned that the Tribunal may have found he was not truthful about his political activities.

7. I find the Tribunal made an error of fact; it found that the election campaign in which the applicant claimed he rendered assistance was an election campaign in the “Rantau Panjang (federal constituency)”, whereas the applicant claimed he was a leader for the electorate of “Rantau”. The source of the error appears to be the Tribunal’s belief that “Rantau Panjang (federal constituency)” and the “Rantau” constituency are the one electorate. I am not satisfied, however, that the Tribunal’s error was material to its decision. That is, I am not satisfied that, had the Tribunal not made the error, the Tribunal could realistically have arrived at a different decision; and I am satisfied that, had the Tribunal not made the error, it would have arrived at the same decision in any event.[23]

   a)First, although the Tribunal made adverse credibility findings, those findings were based on particular matters, none of which included the information relating to the 2013 election results for “Rantau Panjang (federal constituency)”. The Tribunal relied for its adverse credibility findings on the applicant’s having signed a blank Form C on two occasions,[24] the letter from the applicant’s employer omitting a reference to the applicant’s being employed in a security role,[25] and what the Tribunal found to be conflicting accounts of the attack he claims was made on him.[26] Second, the Tribunal in any event accepted the applicant had some involvement with Parti Keadilan Malaysia.[27]

   [23] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3

   [24] CB183, [17], [19]; CB188, [62]

   [25] CB190, [76]

   [26] CB191, [77]

   [27] CB184, [32]

8. The third submission the applicant made relates to the circumstances in which he prepared and submitted the first and second forms of PV application. The applicant said he informed the people who had completed the forms of what he wanted to be included in the forms, but they made a mistake. This submission does not disclose any jurisdictional error. The Tribunal explored with the applicant why he signed a blank Form C on two occasions,[28] but it did not accept the explanation he gave.[29]

   [28] CB188, [55]

   [29] CB188, [60]

9. The final submission the applicant made relates to his dealings with “Justice Connect”, and his inability to obtain legal representation. That does not disclose any jurisdictional error by the Tribunal.

Grounds of application

1. The application contains the following grounds (errors in original):

   1.AAT fails to consider my claim fairly.

   2.AAT did not consider my case properly according to the Migration law in Australia.

   3.I will suffer harm if I go back to my country.

   4.The AAT fail to consider for complementary protection if I am sent back it would amount to ”significant harm” or “serious harm” of the Migration Act and thereby committed jurisdictional error and failed to consider complementary protection.

2. Ground 1, as stated, does not state any facts by reference to which the ground can be assessed. For that reason alone it fails. In any event, the Tribunal’s reasons show it directed the applicant to the matters the Tribunal considered were relevant to the assessment of the applicant’s claims for the purpose of obtaining the applicant’s evidence and response.

3. The second ground, too, also fails for lack of particulars. It does not identify the claim or part of the claims the Tribunal is said not to have properly considered, nor the law the Tribunal is said to have failed to properly apply.

4. The third ground is an appeal to the merits of the applicant’s claims for protection and, for that reason, discloses no jurisdictional error.

1. The fourth ground cannot succeed because the Tribunal did consider the applicant’s claims against the complementary protection criterion provided for by s.36(2)(aa) of the Act.

Other matters

1. There are two other matters I should note. The first is the passage from the Tribunal’s reasons I have already set out, namely, that the Tribunal accepted the applicant’s evidence “that his concern is that if he resumes his claimed political activity those who he claimed had threatened him and attacked him in 2014 would discover his whereabouts and again seek revenge for the applicant’s role in their arrest”.[30] Viewed in isolation, this passage might suggest the Tribunal accepted the applicant’s evidence that he had been attacked, as the applicant claimed. When read the context of the Tribunal’s reasons as a whole, however, it is clear the Tribunal did not accept the applicant had been attacked, as he claimed.

   [30] CB184-185, [32]

2. The second matter to note is there had been issued a certificate purportedly pursuant to s.438 of the Act, but the Tribunal did not disclose to the applicant the certificate, or the documents to which the certificate related. The documents covered by the certificate are in evidence;[31] and there are four. Two are documents titled “Application and Identification Test Details”. The document relates to the applicant having submitted a personal identifier, and the applicant having been given a notification script. The other two documents are two copies of a document titled “Disclosure Decision Checklist (To Be Completed at the Time of Making the RRT Reviewable Decision)”.

   [31] Affidavit of K Pieri 27.09.2019

3. These documents are not relevant to any aspect of the applicant’s claims for protection that were before the Tribunal. I am, therefore, not satisfied that the Tribunal’s disclosing to the applicant the certificate could realistically have resulted in a different decision; and I am satisfied that, had the Tribunal disclosed to the applicant the certificate, it could not have made any difference to the outcome of the application for review.[32]

   [32] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3

Conclusion and disposition

1. The applicant has succeeded on none of grounds or submissions on which he relies. That means the application must be dismissed.

2. I invited submissions on costs. Ms Pieri, for the Minister, submitted the Minister would seek costs if the applicant did not to succeed, and that the Minister would seek an order that the costs be set in the amount of $5,600. The applicant said that if he lost and costs were awarded against him, he would not be able to pay the costs. That is not a sufficient reason for my not ordering that the applicant pay the Minister’s costs.

3. I am satisfied it is appropriate that I order that the applicant pay the Minister’s costs, and that those costs be set in the amount of $5,600.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  13 March 2020