BZW16 v Minister for Immigration

[2018] FCCA 2379

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZW16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2379

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – relevant considerations – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; 191 CLR 559; 71 ALJR 743; 144 ALR 567; 48 ALD 481
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323; 75 ALJR 1105; 180 ALR 1
Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; 85 NSWLR 86

Applicant: BZW16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1595 of 2016

Judgment of: Judge Mercuri

Hearing date: 24 April 2018

Date of Last Submission: 10 April 2018

Delivered at: Melbourne

Delivered on: 31 August 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the respondents: Ms McInnes

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The applicant’s application filed 26 July 2016 be dismissed.

2. The applicant pay the first respondent’s costs in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1595 of 2016

BZW16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This proceeding concerns an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (“the tribunal”) made on 24 June 2016. The tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) to refuse to grant the applicant a protection (class XA) visa (“the visa”) under section 65 of the Migration Act 1958 (Cth) (“the Act”).

2. The material before the court is the applicant’s application for judicial review filed on 26 July 2016, the first respondent’s outline of submissions filed on 10 April 2018 and the court book filed on 31 January 2017.

3. The application raised one ground of appeal, namely:

   The Tribunal did not make its decision of 24 June 2016 according to law, in that:

   1.The Tribunal committed jurisdiction error by taking into account irrelevant considerations.

   PARTICULAR

   a.In paragraph 45, the Tribunal referred to the Applicant’s willingness to approach the authorities for identity documents being a ‘strong support for the contention that the applicant did not fear being harmed in Malaysia’.

   b.Whether the Applicant was willing to or was able to obtain identity documents is an irrelevant consideration of whether or not the Applicant fears being harmed in Malaysia. [1]

   [1] Applicant’s application filed 26 July 2016 at page 3.

4. Orders were made by consent on 18 January 2017 that the applicant file and serve any amended application with proper particulars of the grounds of the application, a supplementary court book if any and written submissions by 14 February 2018.[2]

   [2] Orders made 19 January 2017.

5. The applicant did not file any amended application or further particulars of the grounds of his application, nor did the applicant file written submissions.

The applicant’s claims

1. The applicant is a citizen of Malaysia and arrived in Australia on a tourist visa on 24 July 2015.[3]

   [3] Court book page 27.

2. The applicant applied for a protection (class XA) visa on 17 August 2018. 

3. On 17 November 2015, a delegate of the Minister refused the visa application.[4] The applicant then applied to the tribunal for review on

   
   

   19 November 2015[5]. 

   [4] Court book page 86 to 96.

   [5] Court book 97 to 103.

4. By letter dated 26 May 2016, the applicant was invited to attend a hearing before the tribunal scheduled for 25 June 2016.[6] The applicant was assisted at that hearing by a Malay interpreter.[7] Before the tribunal hearing, the applicant provided written submissions to the tribunal.[8] These submissions appear to have been prepared with the assistance of some legal representation although the applicant represented himself when he appeared at the hearing on 24 June 2016.[9]

   [6] Court book 108 to 109.

   [7] Court book page 139 to 141.

   [8] Court book pages 115 to 138.

   [9] Court book page 114.

5. As noted in the tribunal’s decision record, in his initial application for a protection visa, the applicant claimed:

   a)the applicant participated in the Bersih 2.0 rally in 2011 during which he was hit by a police officer;

   b)as a result, the government and police in Malaysia are chasing him;

   c)he has already tried to move to another part of the country but the police can still find him; and

   d)if he returns to Malaysia he will be caught by the police as the government does not like people who object to their ideas.[10]

   [10] Court book page 148 at paragraph [9].

6. In the pre-hearing submissions filed on the applicant’s behalf, the applicant referred to his background and how he came to be involved with the Bersih 2.0 rally. In addition to repeating and expanding upon his claims made in his initial application, the applicant also stated in this submission that after the Bersih 2.0 rally, he noticed that he had lost his mobile telephone and assumed he had lost it whilst trying to get away from the police.[11] 

   [11] Court book page 149.

7. The applicant further stated in his written submission that he assumed that the police had picked up his mobile telephone and accessed information about him on it which led them to attend his family home in Jitra Kedah both shortly after the Bersih 2.0 rally and then again in 2012.[12] 

   [12] Court book page 150.

8. The applicant further states that in November 2014, the police attended his home in Kuala Lumpur and this prompted him to finally leave the country.[13]

   [13] Court book page 150.

The tribunal’s decision

1. On 27 June 2016, the tribunal affirmed the delegate’s decision.[14]

   [14] Court book page 144 to 165.

2. The tribunal accepted:

   a)the applicant’s involvement in university student activism;

   b)that he had attended the Bersih 2.0 rally on 9 July 2011;

   c)that he was hit by a policeman at that rally; and

   d)that he threw a bottle and some stones at the police who were firing teargas at the crowd.[15]

   [15] Court book page 153 at paragraphs [27] and [28].

3. However, the tribunal did not accept that the applicant misplaced his mobile telephone at the rally or that the police visited his home. In coming to this conclusion, the tribunal noted that neither of these matters had been raised in his initial application. Moreover, the tribunal was not convinced that the police, if they in fact did have access to his mobile telephone, would have gone to his home town where he was registered as residing, rather than track him down to Kuala Lumpur where he was living and studying at the time.

4. The tribunal also noted that:

   a)the applicant had not been involved in any of the subsequent Bersih rallies after 2011;[16]

   b)the applicant had been employed by the same company from 2011 until he left Malaysia and had the police wanted to question him, they could have approached him at that location;[17]

   c)about 1500 people of the estimated 50,000 people who attended the Bersih 2.0 rally were arrested and country information indicated that these people were bailed including leaders and organisers of the rally;[18] and

   d)the applicant had a limited understanding of the Bersih movement and conceded that he was not an organiser or leader in the 2011 rally.[19]

   [16] Court book page 153 at paragraphs [26] and [29]; and page 154 at paragraphs [30] and [34].

   [17] Court book page 154 a paragraph [29].

   [18] Court book page 153 at paragraph [28], and see also page 154 at paragraph [34].

   [19] Court book 153 at paragraph [27].

5. The tribunal also noted that the applicant’s conduct in seeking official identity and travel documents suggested that he in fact did not have a fear of harm from the Malaysian authorities, noting that the applicant obtained an identity card (in 2014) and passport (in 2015) and was able to do so without any apparent concern.[20]

   [20] Court book 156 at paragraphs [43] to [45].

6. The tribunal also noted the applicant’s delay before departing Malaysia when he had a valid passport and visa, caused it to have significant concerns as to his stated fears of harm in Malaysia.[21]

   [21] Court book page 156 at paragraph [46].

7. In response to the suggestion that the applicant indicated that he would continue to be involved in similar activities if he were to return to Malaysia, the tribunal noted:

   a)its scepticism given that he had not engaged in any such action since 2011;

   b)since 2011 he had focused on his studies and work and did not involve himself in any similar activities even though other rallies had occurred and he was still living in Malaysia; and

   c)in any event, based on recent country information, the government in Malaysia appeared to tolerate such activities in more recent years.[22]

   [22] Court book page 156 at paragraphs [47] to [49]; page 157 at paragraph [49]; page 158 at paragraphs [49] to [50]; page 159 at paragraphs [50] to [51]; and page [56].

8. The tribunal did not accept that the applicant was a person of interest to the authorities because of his participation in Bersih 2.0 in 2011 or his student activism in 2011.[23]

   [23] Court book page 159 at paragraphs [52] to [53].

9. The tribunal also considered the applicant’s claim in relation to police corruption. Whilst accepting that there are some concerns about police response and some perception that the police in Malaysia are corrupt, the tribunal did not accept on the basis of the evidence given by the applicant that any such corruption affects the applicant or contributes to any real chance of serious harm or real risk of significant harm on his return to Malaysia.[24]

   [24] Court book page 160 at paragraph [59] to [61]; and page 161 at paragraphs [61] to [63].

10. The tribunal therefore concluded that the applicant did not meet the criteria for a protection visa and affirmed the delegate’s decision.[25]

    [25] Court book page 161 at paragraphs [64] to [67].

Ground for review

1. The applicant’s only ground of review is:

   The Tribunal committed jurisdiction error (sic) by taking into account irrelevant considerations.

   Particulars

   (a)In paragraphs 45, the Tribunal referred to the Applicant’s willingness to approach the authorities for identity documents being a ‘strong support for the contention that the applicant did not fear being harmed in Malaysia.

   (b)Whether the Applicant was willing to or was able to obtain identity documents is an irrelevant consideration of whether or not he Applicant fears being harmed in Malaysia.

2. As stated, although given leave by the orders made on 18 January 2017 to file any amended application, no further grounds were raised by the applicant.

3. The applicant represented himself in the proceedings before this court. At the commencement of those proceedings, I asked the applicant in his own words to outline the errors that he says that the tribunal made in its decision. In response, through an interpreter, he:

   a)stated that when he appeared at the tribunal the member stated that his involvement in Bersih was not related to any party that is a member of the coalition and this is not correct;[26]

   b)referred to the fact that the tribunal member disputed that he had managed to clear customs if the police had an interest in him and that he had given the tribunal an example of a very high profile person who had also managed to clear customs;[27] and

   c)the tribunal member did not believe that at the time of the Bersih 2.0 rally, the applicant’s phone was seized by the police and that was how the police was able to get information.[28]

   [26] Transcript page 5 at lines 17 to 20.

   [27] Transcript page 5 at lines 26 to 40.

   [28] Transcript page 5 at lines 45 to 47.

4. In addition, at the end of the first respondent’s oral submissions, the applicant was also given the opportunity to reply. He stated that he had sought assistance in the preparation of his initial application for a protection visa and that person failed to include all of the information the applicant had given him. He subsequently included that information in the material submitted to the tribunal in the pre-hearing submission.

5. The first respondent relied upon the written submissions it had filed in these proceedings on 10 April 2018 which were extrapolated at the hearing before this court on 24 April 2018. 

6. As stated, the only ground raised by the applicant is that the tribunal took into account an irrelevant consideration and that this led the tribunal into error. It was submitted on behalf of the first respondent that the applicant’s application should fail for two reasons:

   a)the matter complained of by the applicant to which the tribunal had regard is properly characterised as evidence rather than as a ‘consideration’ with regard to the subject matter scope and purpose of the statutory power being exercised; and

   b)the matter to which the applicant referred was, in any event, not irrelevant in the sense that the tribunal was prohibited from having regard to it by the Act.

7. I am satisfied that the question of whether or not the applicant was granted an identity card and then a passport by the authorities and, if so, whether the applicant experienced any difficulties in this process was not ‘irrelevant’ so as to give rise to a jurisdictional error. It is therefore not necessary for this court to determine whether that information is properly characterised as ‘evidence’ or a ‘consideration’ and indeed whether there is a distinction between the two. 

8. The New South Wales Court of Appeal relevantly stated in

   
   Lo v Chief Commissioner of State Revenue

   [2013] NSWCA 180; 85 NSWLR 86:

   The term ‘relevant considerations’ is widely misunderstood: as used in leading authorities such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd … per Mason J, it refers to a matter which the decision-maker is bound to take into account. … Further a matter traditionally described as an ‘irrelevant consideration’ is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious.  Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law (emphasis added).[29]

   [29] Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; 85 NSWLR 86 at [89].

9. In this case, the tribunal was required to have regard to the criteria in section 36(2)(a) and section 36(2)(aa) of the Act in reviewing the delegate’s decision. That required the tribunal to consider whether the applicant faced a risk of harm from the Malaysian authorities. I accept the submissions on behalf of the first respondent that it was entirely appropriate in considering that question to have regard to the applicant’s interactions with the Malaysian authorities in the past. The fact that the applicant had applied for and had been granted an identity card and a passport in 2014 and 2015 respectively, without incident on either occasion, was relevant to that assessment.

10. As noted in Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; 191 CLR 559; 71 ALJR 743; 144 ALR 567; 48 ALD 481:

    In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.  It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.[30]

    [30] Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; 191 CLR 559; 71 ALJR 743; 144 ALR 567; 48 ALD 481 at [575] (quoted with approval in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323; 75 ALJR 1105; 180 ALR 1 at [75]).

11. In this case, one of the key issues raised by the applicant was that he was targeted by the Malaysian police and government because of his involvement in the Bersih 2.0 rally in 2011. He gave evidence that the police had found his mobile telephone and tried to locate him by attending his family home in 2012 and then in Kuala Lumpur in 2014. 

12. The bulk of the tribunal’s reasons were directed at considering whether the applicant was of any interest to the authorities in Malaysia. In that context, the tribunal referred to the fact that the applicant had worked at the same location from 2011 until his departure from Malaysia in 2015 and the applicant’s evidence that the authorities had not tried to contact him at that location.[31] The tribunal’s reasons for decision state:

    The Tribunal expressed its concern that the authorities would have interest in the applicant so long after the last rally in which he took part as a low level activist.[32]

    [31] Court book page 155 at paragraph [42].

    [32] Court book page 155 at paragraph [42].

13. It was in this context that the tribunal made reference to the applicant’s passport and identity card[33] and then relevantly cited the link between the ‘considerations’ now complained of and the underlying issue which the tribunal was addressing when it stated:

    The Tribunal questioned the applicant’s claim that the authorities were interested in the applicant when they were willing to renew his Identity Card in 2014 and issue him with a passport in May 2015. The Tribunal noted that the applicant was willing to approach the authorities for identity documents of this nature and the authorities issued them without incident was strong support for the contention that the applicant did not fear being harmed in Malaysia and that the applicant was not a person of interest to the authorities.[34]

    [33] Court book page 156 at paragraphs [43] to [44].

    [34] Court book page 156 at paragraph [45].

14. The applicant’s identity card and passport were also referred to in its decision record where the tribunal stated:

    The Tribunal does not accept that the applicant is a person of interest to the authorities because of his attendance at the 2011 Bersih 2.0 rally or student activism…The authorities have shown no interest in him, and the applicant has engaged with the authorities without any detrimental treatment. If the applicant was wanted by the authorities they could have found him. They did not…The Tribunal considers that the applicant’s fear of harm because of his participation in this rally are not supported by his own evidence and the country information.[35]

    [35] Court book page 159 at paragraphs [52] to [53].

15. In the context of the statutory task which the tribunal was undertaking, it was entitled to have regard to any matter which either supported or dispelled the claims made by the applicant. The fact that the applicant applied for and obtained both an identity card in 2014 and then a passport in 2015 is relevant to that task. It is clear from the tribunal’s reasoning that those factors led to the tribunal ultimately coming to the conclusions that it did, namely that the applicant did not meet the refugee criterion in s 36(2)(a) of the Act nor was he a person in respect of whom Australia had protection obligations under section 36(2)(aa) of the Act.

16. This ground of review is therefore not made out.

Conclusion

1. Consequently, I dismiss the application with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:  31 August 2018