Car18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 1171

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CAR18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1171

File number:

MLG 1068 of 2018

Judgment of:

JUDGE FORBES

Date of judgment:

14 December 2023

Catchwords:

MIGRATION – protection visa refused – application for judicial review of decision of Administrative Appeals Tribunal – where grounds of review vague and unparticularised – whether Tribunal took all relevant facts into consideration – where applicant sought to introduce new claims for protection before the Court – where new claims not before the Tribunal – no error established  

Legislation:

Migration Act 1958 (Cth) s 5H, 36

Cases cited:

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Division:

Division 2 General Federal Law

Number of paragraphs:

52

Date of hearing:

7 December 2023

Place:

Melbourne

Applicant:

In person

Solicitor for the Respondents:

Sparke Helmore

ORDERS

MLG 1068 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CAR18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE FORBES
DATE OF ORDER:	14 DECEMBER 2023

THE COURT ORDERS THAT:

1.The Applicant’s application for judicial review filed on 23 April 2018 be dismissed.

2.The Applicant pay the First Respondent’s costs which, in default of agreement, shall be in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 as at 14 December 2023.

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 FORBES

INTRODUCTION

1. In this matter the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 6 April 2018. The Tribunal affirmed a decision of a delegate to the Minister not to grant the applicant a protection (Class XA) (subclass 866) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

2. For the reasons set out below, I have determined that the Tribunal’s decision was not affected by jurisdictional error.

   BACKGROUND

3. The following background is derived from the written submissions by the Minister and the materials in the court book. Unless otherwise stated, the following matters are uncontested.

4. The applicant is a Malaysian citizen. He arrived in Australia on 14 March 2016.

5. On 12 May 2016 the applicant applied for a protection (Class XA) visa. The first applicant’s claims for protection were set out in the visa application and can be summarised as follows[1]:

   [1] Court Book (CB) 49

   ·     The applicant claimed to have witnessed a drug syndicate while they were distributing illegal drugs in a night market. The syndicate comprised of four members. They saw the applicant and tried to catch him but he was able to escape from them.

   ·     From that day onward the applicant always received unwanted and threatening calls from someone.

   ·     They always say that they will kill the applicant if he takes any kind of legal action toward them.

   ·     If the applicant were to return to his country he may be killed and will live in fear every day. He also won’t be able to do his daily activities because he is too afraid to go outside to work. It will make living hard for him.

   ·     Some unknown people always followed the applicant from behind whenever he went out from his house and they carried sharp items.

   ·     The applicant reported the matter to the police many times but no action was taken.

   ·     The applicant experienced the same thing every time he moved to another place in the country.

   ·     The applicant believes he will be harmed or mistreated if he returns to Malaysia as the syndicates always keep an eye on him and have threatened to kill him.

   ·     Nobody will help the applicant as the syndicates have a very good influence with the police and politicians and this is the reason why the police didn’t take action to help the applicant.

   ·     The applicant knows very well he is going to die if he stays there.

   ·     The applicant does not think the authorities can and will protect him if he goes back as they refuse to investigate the drug syndicates and they ignored taking any action towards the threats.

   ·     The applicant will not be able to relocate as he will be living in fear and his life will be in danger. He can’t even go to work peacefully and can’t move freely in his country as he might be killed.

6. In support of his application, the applicant signed a declaration that the information he provided was truthful and honest in every way[2], and that the information he “supplied or caused to be supplied” was “complete, correct and up-to-date in every detail”[3].

   [2] CB 13

   [3] CB 36

7. On 8 November 2016 a delegate to the Minister refused the grant of a protection visa for the applicant. The visa was refused on the basis that the delegate did not find the applicant fears persecution based on his “race, religion, nationality, membership of a particular social group or political opinion”[4]. The delegate also did not find the applicant to be a credible witness. Further, if the applicant did require protection, the delegate was satisfied that could be provided sufficiently by Malaysian authorities. Therefore the delegate was not satisfied that the applicant was a refugee under s 5H(1) of the Act, nor did he meet the criteria in s 36(2)(a).

   [4] CB 60 [24]

8. The delegate was also not satisfied that the applicant was a person in respect of whom Australia owed protection obligations under s 36(2)(aa) of the Act.

   Tribunal decision and reasons

9. On 23 November 2016 the applicant applied to the Tribunal for a review of the delegate’s decision. In its letter acknowledging receipt of the review application, the Tribunal informed the applicant that if he wished to provide any material or written arguments for consideration, he should do so as soon as possible[5]. The applicant did not provide any further information in response to the acknowledgement letter.

   [5] CB 66

10. On 8 November 2017 the Tribunal wrote to the applicant and invited him to attend a hearing. In the invitation letter, the Tribunal invited the applicant to submit any requests or “any new information which you wish us to consider”[6]. In response, the applicant requested a Malay interpreter, but did not submit any further documentation or evidence.

    [6] CB 69

11. On 13 December 2017 the applicant attended a hearing before the Tribunal assisted by a Malay interpreter. No further documents were provided by the applicant at the hearing.

12. Almost four months after the hearing, on 6 April 2018, the Tribunal affirmed the delegate’s decision to refuse the applicant’s protection visa.

13. In its decision, the Tribunal summarised the applicant’s claims, which were largely consistent with his claims in the original visa application. The Tribunal detailed some further evidence provided by the applicant in the hearing on 13 December 2017.

14. The Tribunal accepted the applicant’s Malaysian nationality. However, the Tribunal did not accept the applicant’s claims that he had been harassed and threatened by a drug syndicate. The substance of the Tribunal’s reasoning was directed to explaining its finding that the applicant was not a credible witness.

15. First, the Tribunal questioned the applicant’s claim, raised in the hearing, that the drug syndicate members had obtained the applicant’s personal details after he dropped his phone while being chased by the syndicate members. The Tribunal questioned the applicant why he had not included this important detail in his written claims. The applicant responded that it had not occurred to him until the hearing and his English skills were low. The Tribunal did not accept this response.

16. Secondly, the Tribunal queried why the applicant had gone to the police in Malaysia to report the incident when the applicant had claimed the drug syndicate threatened to kill him if he took any legal action. Had he truly feared harm from the syndicate, said the Tribunal, he would not have gone to the police to test whether the syndicate’s threat was a bluff.

17. Thirdly, the Tribunal found that, had the syndicate truly intended to harm or kill the applicant, they would have done so in the period from when he claims to have witnessed the event, in mid-January 2016, to when to left Malaysia in mid-March 2016. The applicant responded by pointing out that the syndicate would not want to do things openly and were waiting for a more discrete opportunity to harm him.

18. Fourthly, the Tribunal found inconsistencies between the applicant’s written and oral statements. In particular, the Tribunal questioned the applicant’s various descriptions of being followed by people carrying sharp items, or people hanging around his workplace on a motorbike.

19. Fifthly, the Tribunal did not accept that the applicant was unable to flee to another area of Malaysia, such as Kuala Lumpur. The applicant claimed that Peninsula Malaysia had higher levels of crime and the syndicate would be able to track him down there. The Tribunal found this unconvincing.

20. Sixthly, the Tribunal generally found the applicant’s story to be improbable. The Tribunal said that the applicant’s claims, including that the syndicate was protected by a Datuk (a Malaysian honorific title), were speculative and fanciful.

21. Having rejected essentially all of the applicant’s claims, the Tribunal found the applicant did not meet the refugee criterion in s 36(2)(a) or the complementary protection criteria in s 36(2)(aa).

    Judicial review

22. On 23 April 2018 the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

23. The applicant’s grounds of review are unparticularised. In the originating application the grounds are expressed as follows:

    1.The decision made by AAT on 6/4/2018 is to refused to grant a protection visa. I would like to reappeal the case to FCC as I was not satisfied with the decision set by AAT.

    2.I decided to left Malaysia and move to Australia due to having a danger threats towards my life.

    3.Back in Malaysia that means I will be exposed to the dangerous and risk towards my life.

    4.AAT did not eccept my application and AAT was fully aware of the facts that I’ve lodged an application for the protection visa as for having genuine risk of my life if I’m going back. This are the facts that they did not take in to concideration.

    (Copied from Originating Application)

24. On 15 May 2019 Registrar Luxton ordered that the Minister file and serve a court book, which was submitted accordingly. Registrar Luxton also ordered the applicant to file and serve any amended application, affidavits, any supplementary court book, and written submissions. The applicant did not comply with this order, and at the time of hearing no submissions or other materials had been filed in support of the application for review.

25. The Minister filed a written outline of submissions on 23 November 2023.

    HEARING

26. The parties appeared before me on 7 December 2023. The applicant was self-represented and appeared with the assistance of a Malay interpreter. The Minister was represented by Ms Petrovski, a solicitor.

27. I explained the course the hearing would follow, including the order of oral submissions and the applicant’s right of reply. I confirmed that the applicant and the Malay interpreter understood each other. I informed the applicant that the Court could not review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. I explained that the role of the Court was restricted to determining whether the Tribunal had made an error in arriving in its decision. I was satisfied that the applicant understood the explanation and I invited him to ask questions or seek further clarification if there was anything about the process he did not understand.

28. The Court sought confirmation that the applicant had received a copy of the court book. The applicant affirmed that he had.

29. The Court then sought confirmation that the applicant had read the written submissions provided by the Minister. The first applicant indicated that he had.

    Applicant’s submissions

30. I invited the applicant to speak to the grounds for review. The applicant made the following oral submissions.

31. The applicant submitted that the Tribunal did not believe, or were suspicious about, his claims. The reason he was not able to provide sufficient evidence to the Tribunal was that the applicant did not bring the evidence with him.

32. Further, the applicant indicated that were was a second reason (the second claim), aside from what was claimed in his application, to explain why he cannot return to Malaysia. The applicant expressed feeling shy and shameful about this second claim. The applicant indicated that he had evidence on his iPad that he wished to show the Court regarding the second claim.

33. I explained to the applicant that the Court’s role is to determine whether the Tribunal made a decision according to law based on the information before it at the time. I sought confirmation from the applicant that this second claim had not been referred to at all in his visa application - and he agreed that it had not.

34. The applicant also conceded that he had not raised any aspect of this second claim, nor any of the evidence he wished to show the Court, in his original application, in his interview with the delegate or in the hearing before the Tribunal. The applicant agreed that he had not previously raised it but submitted that he did not understand the procedures and because of the subject matter of the claim he did not want to be perceived negatively by others.

35. I then invited Ms Petrovski to make submissions in response to the applicant’s request to put new evidence before the court, and in response to the grounds set out in the application for judicial review.

    Minister’s submissions

36. The Minister opposed the Court considering any new or further evidence put by the applicant, as it would invite the court to engage in an impermissible merits review of the application.

37. The Minister submitted that the applicant had several opportunities throughout the visa application and review process during which he could have raised the second claim or submitted further evidence. The Minister pointed to the acknowledgment letter from the Tribunal and the invitation to hearing (as referred to above), as examples of such opportunities. The applicant also had almost four months from the time of the Tribunal hearing to the date of the Tribunal’s decision to provide any information that was missed. The Minister submitted that these were more than adequate opportunities for the applicant to raise the second claim.

38. Regarding the grounds for review, which the Minister contended were in the nature of submissions rather than grounds, the Minister submitted that the applicant appears to be requesting an impermissible merits review and the grounds do not disclose any error on behalf of the Tribunal.

39. To the extent that the applicant alleges the Tribunal failed to consider his claims, or evidence provided in support of his claims, the Minister submitted a fair reading of the reasons shows that the Tribunal member discussed the claims in a detailed fashion. The reasons also disclose that the Tribunal considered the applicant’s oral evidence, which it rejected for credibility reasons.

40. The Tribunal provided reasons as to why it made adverse findings regarding the applicant’s credibility, pointing out the inconsistencies in the applicant’s claims. The Minister emphasised that these findings were not made based on a lack of evidence from the applicant, rather they were related to identified discrepancies between the applicant’s written application and his oral evidence. The Tribunal was not convinced by the applicant’s explanation for those discrepancies.

41. Finally, the Minister submitted that the Tribunal engaged in an “active intellectual process” or “genuine” consideration of the applicant’s claims[7] and the findings were open to it for the reasons it gave. The Minister submitted that no jurisdictional error has been established and the application for judicial review should be dismissed with costs.

    [7] Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [57]

    Reply

42. Following the Minister’s submissions, I invited the applicant to respond to the points raised. The applicant again expressed his desire for the Court to look at the iPad evidence he had brought to the hearing in relation to his second claim.

43. I reminded the applicant that my task was to determine whether the Tribunal considered his matter properly according to law. As the applicant had conceded that the evidence was never before the Tribunal, I informed him that I was unable to view this new material.

    CONSIDERATION

44. The application for judicial review must be dismissed.

45. I agree with the Minister that the grounds of review are unparticularised and vague. The applicant’s brief oral submissions did not illuminate these grounds any further. His submissions appeared to be directed at inviting the Court to engage in impermissible merits review and re-assess his application[8].

    [8] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272

46. Although it might be inferred that the applicant now abandons his claims relating to the drug syndicate, those were the claims advanced in his application. In his visa application, the applicant declared that the information provided was complete and up-to-date. He maintained those claims before the delegate and in the hearing before the Tribunal and never deviated from them. He certainly never introduced the second claim.

47. Read fairly, the reasons of the Tribunal show a comprehensive engagement with each of the claims advanced[9], including the oral evidence raised during the Tribunal hearing of 13 December 2017[10]. I am persuaded by the Minister’s submissions that the Tribunal’s finding on credibility was open to the Tribunal for the reasons it gave, and was soundly based on the inconsistencies described in the reasons.

    [9] CB 87-89 [31]-[45]

    [10] CB 85-86 [13]-[27]

48. The Court is unable to consider information that was not before the Tribunal. The applicant had several opportunities throughout the process to raise his second claim. While I acknowledge that feelings of shame or embarrassment may have contributed to the applicant’s lack of disclosure, he was not precluded from advancing this claim. He chose how to put his claims and it was not for the Tribunal to make his case for protection.

49. I find that the applicant’s grounds are not made out.

    DISPOSITION

50. For the reasons set out above, the applicant has not demonstrated jurisdictional error in the Tribunal’s decision.

51. The application for review filed on 23 April 2018 will be dismissed.

52. The applicant should pay the Minister’s costs which, in default of agreement, shall be in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 as at the date of hearing.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.

Associate:

Dated:       14 December 2023