CIF17 v Minister for Immigration

[2019] FCCA 3360

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIF17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3360

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Protection (Class XA) visa – where the Applicant fears harm from his lover’s husband – whether the Tribunal failed to consider the Applicant’s claim that he would be ostracised from his community – no jurisdictional error established – Application dismissed.

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Applicant: CIF17

First Respondent:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Second Respondent	ADMINISTRATIVE APPEALS TRIBUNAL
File number	MLG 1212 of 2017

Judgment of: Judge Blake

Hearing date: 7 October 2019

Date of Last Submission: 7 October 2019

Delivered at: Melbourne

Delivered on: 21 November 2019

REPRESENTATION

Counsel for the Applicant: None

Solicitors for the Applicant: None

Advocate for the Respondents: Ms Stone

Solicitors for the Respondents: DLA Piper

ORDERS

1. The Application filed on 8 June 2017 be dismissed.

2. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $5,000.

3. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1212 of 2017

CIF17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 12 May 2017. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA) visa (‘visa’).

2. For the reasons that follow, I have decided to dismiss the application for review.

Background

1. The Applicant is a Malaysian national. He arrived in Australia on

   
   

   9 September 2015 and subsequently applied for the visa on 25 November 2015.

2. On 18 March 2016, a delegate of the Minister (‘delegate’) refused to grant the visa.

3. The Applicant applied to the Tribunal for review of the delegate’s decision on 1 April 2016. On 24 April 2017, the Applicant attended a hearing at the Tribunal.  On 12 May 2017, the Tribunal affirmed the decision of the delegate not to grant the Applicant the visa.

4. The Applicant applied to this Court for a review of the Tribunal’s decision on 8 June 2017.

5. Orders were made, by consent, by Registrar Luxton on 24 January 2018. Those orders provided, among other things, that the  Applicant file and serve an amended application, a supplementary court book, if any, and written submissions 28 days before the final hearing and the Minister file and serve written submissions 14 days before the final hearing.

6. On 23 September 2019, the Minister filed written submissions. The Applicant has not filed any further material pursuant to the orders made by Registrar Luxton.

The Application for Review

1. The claims advanced by the Applicant in support of his application for the visa are recorded in summary at paragraph [16] of the Tribunal’s decision and also at paragraph [4] of the Protection Visa Assessment conducted by the delegate.  They are as follows:

   a)The Applicant left Malaysia because he was threatened by his lover’s husband.

   b)The Applicant had been hit and he could be harmed or killed if he returns to Malaysia.

   c)The Applicant did not seek help.  He moved to another state but his lover’s husband hunted him down because he suspected that his wife was still contacting him.

   d)Malaysian authorities cannot protect him because he will probably be killed even if he lodges a report.

2. The Application for Review, filed on 8 June 2017 (‘Application’) sets out the following four grounds of review:

   ‘1. The Tribunal failed to consider many vital integers of my case;

   2. The Tribunal failed to consider many vital evidence that are relevant to my case;

   3. The Tribunal deprived me of procedural fairness;

   4. The Member has failed to do his duty’ (sic)

3. No particulars were provided in relation to these grounds. Other than what is set out below, the Applicant provided no further explanation of what the Tribunal had failed to consider, how the Tribunal failed in its duty, or how the Applicant was denied procedural fairness.

4. At the outset of the hearing, I asked the Applicant whether there was any other documentary material that he wished to rely on. The Applicant handed to me a reference from his present employer, a copy of a PAYG summary for the year ending 30 June 2019, and a copy of a business card for the person holding the position of Managing Director of his present employer. I have reviewed that material in considering the application before me.

5. During the hearing, I asked the Applicant to tell me why the decision of the Tribunal was wrong. The Applicant made the following submissions:

   a)Now is not the right time to go back to Malaysia having regard to his religion and culture.  When I asked the Applicant to explain what he meant by this, he said that people would look down on him and treat him in a bad manner.  He indicated there would be difficulties if he had a daughter.  Under questioning, the Applicant confirmed he did not have a daughter, but had witnessed poor treatment in his village of others.

   b)The Applicant feels safer in Australia.

   c)The police in Malaysia will not ensure the safety of the Applicant.

6. I turn to deal with each of the matters above. I deal firstly with the claim that the Malaysian authorities will not protect the Applicant.  This was a claim that the Applicant advanced before the Tribunal.  At paragraph [31] of its decision, the Tribunal records the Applicant’s claim that he fears ‘harm from his lover’s husband and he fears that no one can protect him in Malaysia’.  The Tribunal proceeded to examine this issue at paragraph [34] of its decision.  Paragraph [34] of the Tribunal’s decision is as follows:

   ‘Secondly, the applicant told the Tribunal that he did not seek the assistance of the local police in order to counter the threats made against him because in Malaysia being a Muslim country his actions in having an affair with another man's wife would be looked down upon by the authorities. Indeed, in assessing whether effective protection measures are available to the applicant, consideration must be given by the Tribunal to the ability and willingness of the State to protect the applicant from harm (see Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1). Case law indicates that persecution may be established in a situation where the State tolerates, for a convention reason violent or discriminatory acts. In Minister of Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1, the High Court held that:

   "..... Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the State or agents of the State, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the State... "

   The applicant provided no evidence to the Tribunal of this discriminatory practice in Malaysia as it directly impacted on him. Indeed, the country information accessed by the Tribunal and discussed with the applicant at the hearing does not show this. There was no evidence provided to the Tribunal of other religious departments being involved or an attempt being made to penalise persons through the operation of a religious edict or the use of sharia law. Therefore the Tribunal does not find this explanation as credible. The applicant could have sought the protection of the police if he was indeed facing a threat from his ex-lover's husband.’

7. It is apparent that the Tribunal had regard to country information placed before it in reaching the views it expressed at paragraph [34] of its reasons.  So much is evident from the text of paragraph [34] set out above. It is also evident, however, from paragraph   [30] of the Tribunal’s decision. Paragraph [30] provides as follows:

   ‘Country Information

   Law enforcement and protection in Malaysia

   30. According to independent country information accessed by the Tribunal Malaysia has a developed and functioning law enforcement system readily accessible to all citizens when as they require and need it.

   State Protection

   Federal and State Law Enforcement Entities

   5.1 Law enforcement entities operate at both federal and state level. The Royal Malaysian Police (RMP) reports to the federal Minister for Home Affairs and is responsible for law enforcement nationwide. The National Department of Islamic Development (JAKIM) enforces sharia law and has jurisdiction over Muslims in Kuala Lumpur and the two other federal territories. The RMP and JAKIM operate independently and only occasionally work together.

   5.2 The People's Volunteer Corps (RELA), a federal paramilitary civilian corps under the jurisdiction of the Ministry of Home Affairs, assists security forces. RELA membership was 2.9 million in September 2013. RELA volunteers receive limited training. RELA's engagement in law enforcement ·activities has significantly reduced in recent years.’

8. The same report also raises the following points:

   ‘Royal Malaysian Police (RMP)

   5.5 The RMP employs approximately 102,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Home Affairs Minister. Credible local and international sources consider the RMP to be a professional and effective police force. However, the quality of the RMP's responses varies depending on levels of training, capacity or engagement in corruption. RMP officers receive limited training, particularly on human rights. Suhakam does conduct some human rights training and workshops for police and prison officials. Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern (see 'Police Integrity and Accountability', below). The RMP is 80-85 per cent ethnic Malay. The government undertakes targeted recruitment to increase the number of women, Chinese Malaysians and Indian Malaysians in the RMP.

   Police Integrity and Accountability

   5.6 The Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police in 2005 identified a perception of widespread corruption within the RMP. In response, the Government publicly acknowledged the existence of police corruption and implemented reforms, including establishing compliance units within the RMP. Police officers were subject to trial by criminal and civil courts and disciplinary action was taken against officers found guilty, including suspension, dismissal or demotion.

   The country information set out above describes the Malaysian authorities as reasonable (sic) effective in combating crime and protecting persons within their jurisdiction from criminal harm.’ (footnotes omitted)

9. When the Tribunal’s decision is looked at as a whole and the country information before it is reviewed, I find that the conclusion reached by the Tribunal that the Applicant could have sought the protection of the Malaysian police is a finding that was open to it.  The Tribunal reached that conclusion having regard to the country information before it.  In doing so, it preferred the country information over the information provided by the Applicant. I am unable to discern any error in respect of the Tribunal’s approach to this issue.

10. I next deal with the Applicant’s submission that now is not the right time, having regard to his culture and religion, for him to be returned to Malaysia and that he will be looked down upon by his local community.  This submission appears to raise two issues.  First, as I understood the Applicant’s submission at hearing, a claim that the Applicant will be treated less favourably in his village because of his culture.  Second, a claim that he will be looked down upon by persons in his village because he has conducted a relationship with a married woman.

11. The claim that the Applicant will be treated less favourably in his village because of his culture is not a claim that was advanced before the delegate or the Tribunal.  Such a complaint, raised now, invites the Court to engage in a merits review, which this Court cannot undertake. 

12. The claim that the Applicant would be looked down upon by members of his local community because of his relationship with a married woman was a matter that was before the Tribunal – see paragraph [26] of the Tribunal’s reasons.  A relevant issue for this Court in conducting this review is whether that claim was appropriately dealt with and disposed of by the Tribunal, or whether the Tribunal’s approach to it discloses jurisdictional error.

13. A review of the Tribunal’s decision indicates that the Tribunal did not make an express finding rejecting this aspect of the Applicant’s claims.  The relevant issue then becomes whether an inference can be drawn that the Tribunal has failed to consider this issue.

14. In considering whether an inference may be drawn that the Tribunal failed to consider the claim, regard firstly needs to be had to paragraphs [26] and [35] of the Tribunal’s decision.  It is apparent from each of those paragraphs that the Tribunal understood the Applicant to be claiming that he would be ostracised if his local community came to learn of his relationship with a married woman.  For example, at paragraph [26] the Tribunal records the claim that the Applicant’s ‘local community in Sabah, if it found out about his relationship with a “married woman” they would not wish to have anything further to do with him’.  At paragraph [35], the Tribunal recorded that the Applicant ‘feared to return to Malaysia because he would be “looked down upon” by persons within his circle’. 

15. Having acknowledged his claim, the Tribunal went on to find that there was not a real chance that the Applicant will face persecution involving serious harm because of his relationship.  Further, the Tribunal did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Malaysia, there is a real risk that he will suffer significant harm.  The Tribunal’s findings in this respect are recorded at paragraphs [36] and [37] of its decision and are set out below:

    ‘36. For the reasons given in paragraphs 33 to 35 above, the Tribunal does not accept that the applicant was forced to leave Malaysia because he had experienced threats from his ex-lover's husband, as he claimed, nor that there is a real chance that he will face persecution involving serious harm because of his relationship with his ex-lover or girlfriend called [Ms X], if he returns to Malaysia. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined in s.5J of the Migration Act 1958 (as amended). For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect to whom Australia has protection obligations under s.36(2)(a) of the Act.

    37. The Tribunal having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion of complementary protection in s.36(2)(aa). For the reasons given in paragraphs 33 to 35 above, the Tribunal does not accept that the applicant was forced to flee Malaysia for having an affair with a married woman, as he had claimed, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm because he chose to become involved in an affair with a married woman. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.’

16. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (‘Applicant WAEE’), the Full Court of the Federal Court of Australia considered the principles to be applied where a body such as the Tribunal allegedly fails to consider a contention advanced by an applicant for protection.  The Full Court stated as follows:

    ‘46. It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

    47. The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.’

17. When regard is had to both the manner in which the Tribunal approached the Applicant’s claim to fear being ostracised from his community, and the principles set out in Applicant WAEE above, I am satisfied of the following. First, the Applicant’s claim to fear being ostracised by his community was expressly acknowledged by the Tribunal. This is not a case where the Tribunal has not made any reference to the claim at all. Second, in paragraph [36], the Tribunal expressly indicates that there is not a real chance the Applicant will ‘face persecution involving serious harm because of his relationship with his ex-lover or girlfriend called [Ms X], if he returns to Malaysia’ (emphasis added). I regard this reference as a reference to any form of persecution of the Applicant on account of his relationship if he returns to Malaysia as including a reference to any persecution by his local community. For these reasons, I am satisfied that the Tribunal dealt with the Applicant’s claim as part of its findings at paragraphs [36] and [37] of its decision. 

18. There is then the claim advanced at the hearing that the Applicant feels safer in Australia. That may be the case. It does not, however, give rise to a claim that the Tribunal has committed jurisdictional error.

1. There are then the remaining grounds of review contained within the Application that have not been dealt with above.  Other than what the Applicant stated at the hearing, which I have recorded above, the Applicant did not expand upon the grounds set out in the Application.

2. A review of the Tribunal’s decision discloses that the Tribunal approached the task before it in the following manner:

   a)At paragraphs [1] to [4], the Tribunal recorded matters pertaining to the background to the application for the visa;

   b)At paragraphs [5] to [10], the Tribunal set out the relevant legislative provisions and ministerial directions that the Tribunal was required to take account of;

   c)At paragraphs [11] to [30], the Tribunal set out the background to the application, the evidence given by the Applicant at the hearing, the Applicant’s claims and the relevant country information before it;

   d)At paragraphs [31] to [35], the Tribunal made various findings in respect of the Applicant’s claims.  Of relevance, the Tribunal:

   i)accepted the Applicant’s account of his relationship with a married woman (at [31]);

   ii)did not accept the Applicant’s accounts as to the threats he received from the woman’s husband to be credible (at [33]);

   iii)did not accept that the Applicant had a continuing fear of the husband if he were to return to Malaysia (at [35]);

   iv)found, on the basis of country information, that people in Malaysia had access to a law enforcement system which was competent to provide protection if a person was threatened by others (at [32]);

   v)considered and found the Applicant’s explanation that he could not seek protection of Malaysian authorities in respect of the threats he faced from the married woman’s husband as not credible (at [34]);

   vi)did not accept that there was a real chance or a real risk that the applicant would face serious or significant harm in Malaysia due to his affair with a married woman (at [36] to [37]).

3. There is nothing controversial about the approach that the Tribunal took in dealing with the claims advanced by the Applicant. When the decision is read as a whole, I am satisfied that the Tribunal properly considered the claims and material before it, and gave the Applicant an opportunity to address it on the issues. I am unable to discern any error in the approach of the Tribunal.

4. I understand the Applicant’s desire to remain in Australia.  The reference provided by the Applicant’s employer discloses that he is a reliable employee who has found employment and secure accommodation. He has purchased a car enabling him to travel.  The reference also discloses that the Applicant has the opportunity to undertake further education and training to progress in his duties with his employer.  While all of these matters are commendable, and the Applicant is to be congratulated for his efforts, they do not have any bearing on the task before this Court.  Ultimately, what matters is whether the decision of the Tribunal was affected by jurisdictional error.  

5. For the reasons I have articulated in this judgement, I am satisfied the Tribunal has not committed any error as to jurisdiction.  Accordingly, the application for review must be dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate:

Date: 21 November 2019