CBG16 v Minister for Immigration

[2019] FCCA 390

FEDERAL CIRCUIT COURT OF AUSTRALIA

CBG16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 390

Catchwords:
MIGRATION – Application for judicial review – Protection (Class XA) visa – religious persecution – dependent child applicant – whether there was fraud on the Tribunal – no error apparent – application dismissed.  

Legislation:

Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 48A, 476

Cases cited:

Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127

Minister for Immigration and Citizenship the SZLIX [2008] FCAFC 17

SZGIZ v Minister for Immigration & Anor [2013] FCAFC 71

First Applicant: CBG16

Second Applicant: CBH16

Third Applicant: CBI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1623 of 2016

Judgment of: Judge McNab

Hearing date: 13 December 2018

Date of Last Submission: 13 December 2018

Delivered at: Melbourne

Delivered on: 22 February 2019

REPRESENTATION

Applicant appearing in person

Counsel for the Respondents: Ms J Lucas

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application filed 28 July 2016 be dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $6,800.

(TWO OF THE ACT FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1623 of 2016

CBG16

First Applicant

CBH16

Second Applicant

CBI16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter comes before the Court by way of an application for judicial review filed on 28 July 2016. The application seeks review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) which affirmed a decision of a delegate of the Second Respondent to deny the Applicants a Protection (Class XA) visa (‘Visa’).

Background

1. The representative of the First Respondent has accurately outlined the background circumstances of this case, the claims of the Applicants and the decision of both Tribunals in [4] – [28] of their submissions. These paragraphs of the submissions, with some modification, are extracted below, citations omitted. The outline conveniently and accurately summarises what were detailed and lengthy claims before the Tribunal.

2. The Applicants are citizens of Malaysia who arrived in Australia on

   
   

   13 August 2010. In the initial visa application lodged on

   
   

   12 November 2010, the primary Applicant was the First Applicant (‘Applicant Husband’) and his Wife a dependent Second Applicant (‘Applicant Wife’).

3. The Applicant Husband and Applicant Wife have a 5-year-old son born in July 2013, who is the Third Applicant (‘the Applicant Child’). The Applicants also have two daughters who live with the Applicant Wife’s mother in Malaysia.

4. While the Applicant Wife was included on the initial visa application as a secondary applicant, both the Applicant Husband and Applicant Wife made their own Refugee claims.

5. On 23 September 2011, the Refugee Review Tribunal (as it then was) (‘the First Tribunal’) affirmed a decision of the delegate dated

   
   

   31 December 2010 refusing to grant the Applicant Husband and the Applicant Wife Protection visas under s 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’).

6. On 19 July 2012, the Applicant Husband and the Applicant Wife applied for an extension of time within which to apply for judicial review of the First Tribunal’s decision which was subsequently refused by the Federal Circuit Court.

7. On 6 March 2014, the Applicants (including the Applicant Child) applied for protection visas in accordance with the decision in

   
   SZGIZ v Minister for Immigration & Anor

   [2013] FCAFC 71 (‘SZGIZ’). That decision found that s 48A of the Act imposes a bar on a non-citizen making a further application for a protection visa while in the migration zone in circumstances where the non-citizen had made an application for a protection visa which had been refused. However, s 48A did not prevent a non-citizen who had made a valid application on the basis of the Refugee criterion in s 36(2)(a) from making a further application on the basis of complementary protection under s 36(2)(aa) whilst he or she remained in the migration zone.

8. Together with their application, the Applicant Husband and the Applicant Wife provided a copy of the birth certificate of the Applicant Child born on 30 July 2013. On 24 March 2014, they lodged a Form D (application for a member of the family unit) in relation to the Applicant Child.

9. On 25 August 2014, the Minister’s delegate (‘the Second Delegate’) refused to grant the Applicant Wife a protection visa. The Second Delegate also refused to grant the Applicant Husband and the Applicant Child protection. The basis of the Second Delegate’s refusal was that the Applicant Wife did not satisfy ss 36(2)(a) or 36(2)(aa) of the Act and that therefore, the Applicant Husband and Applicant Child, as members of the Applicant Wife’s family unit, could not be granted Protection visas.

10. On 17 September 2014, the Applicants applied to the Refugee Review Tribunal (as it then was) (‘the Second Tribunal’) for review of the Second Delegate’s decision.

11. The Applicants appeared before the Second Tribunal to give evidence and present arguments at a hearing on 8 March 2016 and were assisted by a migration agent.

12. On 30 June 2016, the Second Tribunal affirmed the decision of the delegate to refuse to grant the Applicants the Protection visas.

13. By application filed on 28 July 2016, the applicants seek review of the Second Tribunal’s decision.

Claims before the Tribunal

1. The Tribunal set out the details of the claims of the Applicant Wife at

   
   

   [19] – [27] of the decision. Only the Applicant Wife made protection claims, with the Applicant Husband and child relying on the relationship with her. At the hearing, the Applicant Husband gave evidence but confirmed that his claims rested on those made by the Applicant Wife.

2. The Applicant Wife claimed that she left Malaysia because she was forced to marry the son of an Islamic faith healer and that she was forced to abandon her religious beliefs and convert to Islam.

3. It was claimed that the Applicant Wife and her parents sought medical treatment for her brother from the Islamic faith healer and he told the family that if her brother was cured, she would have to marry his son. The Islamic faith healer and his associates came to her family’s home on two occasions to ask her to marry his son and instructed her that she had to convert to Islam. Her mother explained that the Applicant Wife was too young to get married, so they approached the family again in 2005 and this time forced the Applicant Wife’s brother to marry the Islamic faith healer’s daughter. The Applicant Wife and the Applicant Husband were subsequently married in 2006. When the Islamic faith healer and his associates learned of the marriage, they went to the family’s house and damaged their religious icons and books.

4. The Applicant Wife and Applicant Husband subsequently fled to

   
   

   Kuala Lumpur and left their 2 daughters with the Applicant Husband’s mother.

5. In October 2009, the Applicant Husband was attacked by a group of Malaysians. The Applicant Wife claimed that if she were to return to Malaysia she would be forced to abandon her religion and marry the Islamic faith healer’s son.

6. At the hearing before the Second Tribunal, the Applicant Wife claimed to fear significant harm on the basis that if she returned to Malaysia, she would be forced to convert to Islam. She stated that Malaysia is becoming more Islamic and that they are trying to suppress smaller religions. She claimed to fear harm from Islamic groups who she claimed harassed her at her home between 2006 and 2009. The Second Tribunal found this claim to be somewhat different to the claims she had expressed in her application for a protection visa, which it found raised doubts about her credibility.

7. The Second Tribunal had significant concerns about the Applicant Wife’s credibility, and further, that her claims were implausible and supported by inconsistent evidence. The Second Tribunal found that:

   a)the Applicant Wife was unable to identify which Islamic groups she feared harm from as a result of being forced to convert to Islam, notwithstanding she had claimed they had harassed her from 2006 to 2009;

   b)whilst it accepted that the Applicant Wife’s mother sought assistance from an Islamic faith healer, it did not accept that he would seek to arrange a marriage between his children and the Applicant Wife on the basis that it was far-fetched that he would engage in such a complicated method to recruit people to Islam and gave detailed reasons for this finding at [37]. At [38] the Second Tribunal otherwise noted that the Applicant Wife gave inconsistent evidence as to what was agreed between the Islamic faith healer and the Applicant Wife’s mother;

   c)the Applicant Wife gave inconsistent evidence as to religious relics being destroyed in her house and harassment from the Islamic faith healer and the Islamic police, noting that the Applicant Wife did not mention these incidents in her application for the Visa;

   d)the Applicant Wife gave inconsistent evidence as to where she lived and worked in Malaysia and the Applicant Husband gave inconsistent evidence as to where he worked in Malaysia. This was particularly significant given the Applicant Wife had claimed she had worked at a Buddhist temple and that they moved around Malaysia to avoid harassment from the Islamic faith healer.

   The Second Tribunal considered the Applicant Wife’s claims from

   
   

   [45]-[51] and at [52] and concluded that the Applicant Wife was an unreliable witness and did not accept that the Applicant Wife and/or members of her family had faced problems from the Islamic faith healer or people associated with him for reasons of an arranged marriage or due to their religion. The Second Tribunal therefore did not accept that the Applicant Wife moved around Malaysia to avoid harassment or that she had been physically harmed as a result of not converting to Islam.

8. The Second Tribunal more generally considered the Applicant Wife’s claim to fear harm due to being forced to convert to Islam. The Second Tribunal relied upon independent country information to find that individuals cannot be forced to convert to Islam, and found that, whilst there may be limitations on the practice of religious freedom in Malaysia, it did not accept that the Applicant Wife would be forced to convert to Islam or otherwise prevented from practising her own religion. Further, the Second Tribunal did not accept that the Applicants would be harmed because of their religion.

9. The Second Tribunal did not accept that the Applicant Wife would be harmed in Malaysia on the basis of her Chinese ethnicity. The Second Tribunal relied on independent country information which indicated that despite some low level discrimination in favour of ethnic Malays in terms of education, ethnic Chinese are the second largest ethnic group in Malaysia, that there are no laws which directly discriminate against ethnic Chinese, and that ethnic Chinese are able to freely participate in political life.

10. The Second Tribunal considered the Applicants’ claims individually and cumulatively and found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicants being removed to Malaysia, there is a real risk the Applicants would suffer significant harm upon return to Malaysia.

11. At [8] the Second Tribunal considered the effect of SZGIZ on its jurisdiction, noting that the Full Federal Court had confined the effect of s 48A of the Act to the making of a further application which duplicated the same essential criterion for the grant of the visa in an earlier unsuccessful application. However, the Second Tribunal noted that s 48A did not prevent a non-citizen who had made a valid application on the basis of the Refugee criterion in s 36(2)(a) from making a further application on the basis of the complementary protection criterion in

    
    

    s 36(2)(aa). The Second Tribunal determined at [11] that the visa application was valid because the Applicants were considered to be ‘SZGIZ affected’ as they had not left Australia since the final determination of their previous protection application, which preceded complimentary protection laws, but found that the Second Tribunal was confined to considering whether the applicants satisfied the requirements of ss 36(2)(aa), (b) and (c).

12. On the evidence before it, the Second Tribunal did not consider that there were substantial grounds for believing that there was a real risk that the Applicants would suffer significant harm, in relation to their claims individually or cumulatively. It also found that the Applicants were unable to satisfy the criterion set out in ss 36(2)(aa), (b) or (c).

Grounds of review

1. The Applicant’s amended application provides the following ground of review:

   The AAT did not give our application proper consideration.

Consideration

1. There is no substance to the claim that the Tribunal failed to give the application proper consideration. The Tribunal was required to only consider the complementary protection criteria set out in s 36(2) of the Act. That section provides:

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)     is mentioned in paragraph (a); and

   (ii)   holds a protection visa of the same class as that applied for by the applicant; or

   (c)a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)     is mentioned in paragraph (aa); and

   (ii)    holds a protection visa of the same class as that applied for by the applicant.

2. There was no error in the manner in which the second Tribunal considered the effect of SZGIZ on its jurisdiction. The Tribunal correctly held at [11] that the Applicants had standing to bring a claim that proceeded on complementary protection laws, but as the Applicants had previously had their claims for protection assessed under s 36(2)(a) of the Act, the Tribunal must confine its consideration to whether they satisfy ss 36(2)(aa), 36(2)(b) or 36(2)(c): Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127 [42]-[44]

3. Further, in circumstances where the Applicant Wife was not found to meet the essential criterion under ss 36(2)(a) or 36(2)(aa), the Applicant child would not satisfy either ss 36(2)(b) or 36(2)(c) of the Act and there is therefore no error in the Tribunal’s approach.

4. Although no issue was raised in relation to whether the Tribunal complied with procedural fairness obligations, I note that the Tribunal invited the Applicants to attend a hearing before it on 8 March 2016, at which they are represented by migration agent.

5. At the hearing before the Court, the Applicant Wife raised that she had asked her lawyer to help her to submit a response to a letter sent by the Tribunal dated 15 June 2016. That letter required a response by

   
   

   29 June 2016. On 1 July 2016 the Applicant Wife wrote to the Tribunal advising that she had asked her lawyer to help her to submit a response before 29 June 2016 but they did not assist her. I accept that this points to negligence or inadvertence on the part of the agent, but is not sufficient to give rise to fraud on the Tribunal: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17 [30] – [33].

Conclusion

1. For these reasons, the Tribunal’s decision is not affected by jurisdictional error and accordingly the application is dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 22 February 2019