CJV15 v Minister for Immigration
[2016] FCCA 1447
•17 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJV15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1447 |
| Catchwords: MIGRATION – Judicial review – Protection (Class XA) visa – decision of Administrative Appeals Tribunal – whether fear of harm on a Convention ground – whether Tribunal unreasonable – whether Tribunal biased – whether jurisdictional error. |
| Legislation: 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees |
| Cases cited: Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1; (2004) 79 ALJR 397; (2004) 211 ALR 660; (2004) 82 ALD 1 Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380 |
| Applicant: | CJV15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 522 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 26 May 2016 |
| Date of Last Submission: | 26 May 2016 |
| Delivered at: | Perth |
| Delivered on: | 17 June 2016 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr A Gerrard |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 522 of 2015
| CJV15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 12 November 2015 the applicant lodged an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) dated 18 October 2015, to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) dated 3 March 2015. The Delegate’s Decision was to refuse the applicant a Protection (Class XA) visa under s.65 of the Migration Act (“Protection Visa”).
A copy of the Tribunal Decision is at Court Book (“CB”) 143-151.
Background to the Judicial Review Application
The background to the Judicial Review Application is as follows:
a)on 3 July 2013 the applicant, a Malaysian citizen, arrived in Australia on a Subclass UD-601 visa which was valid for a period of three months: CB 79 at [3];
b)on 3 October 2013 the applicant's visa expired, and as the applicant had not departed Australia he became an unlawful non-citizen (see Migration Act, s.14): CB 79 at [3];
c)on 11 August 2014 the applicant lodged his application for the Protection Visa: CB 78-79;
d)on 3 March 2015 the Delegate refused the application for the Protection Visa: CB 78-87;
e)the applicant lodged an application with the Tribunal for review of the Delegate’s Decision, and a Tribunal hearing was held on 9 October 2015: CB 133;
f)on 18 October 2015 the Tribunal affirmed the Delegate’s Decision not to grant the applicant the Protection Visa: CB 143-151;
g)on 12 November 2015 the applicant lodged an application in this Court for review of the Tribunal Decision;
h)on 9 December 2015 a Registrar of the Court listed the application for hearing on 26 May 2016 and ordered, amongst other things (“Registrar’s Orders”), that the applicant file and serve:
i)any amended application giving particulars of the grounds of review and further affidavits by 24 February 2016; and
ii)an outline of submissions not less than 42 days before the hearing;
i)as at the date of hearing, the applicant has not filed any amended application, further affidavits or an outline of submissions; and
j)pursuant to the Registrar’s Orders the Minister filed an outline of submissions on 5 May 2016.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)in a manner entirely orthodox, identified the relevant law in Attachment A to the Tribunal Decision and the necessity for the criteria for the Protection Visa to be satisfied before the Protection Visa could be granted: Migration Act, ss.36 and 65; Migration Regulations 1994 (Cth), Schedule 2, cl.866, and specifically noted the relevant refugee and complementary protection criteria, the relevant Ministerial direction, and made observations as to the proper approach to assessing the credibility of a visa applicant: CB 144 at [1] and CB 148-151;
b)found that the applicants claims were that:
i)he had had a seafood business in Malaysia, and that Malay gangsters had wanted him to supply fish to them, but they had not paid him;
ii)the gangsters had been trying to blackmail him;
iii)a lot of Indian and Malay gangsters had come to the applicant's home with weapons and his arm had been injured when he had tried to reason with them;
iv)after the applicant had escaped from Malaysia, his friends had told him that the gangsters were still looking for him and that if they caught him, they would kill him;
v)people in the Malaysian Government were Malay and they discriminated against Chinese people such as the applicant; and
vi)whenever the gangsters needed money they would come to the applicant's place because Chinese Malaysians did not have a very high social position in Malaysia, which is also why the police would not listen to him when he had gone to them: CB 144 at [2] and 145 at [6];
c)noted that the applicant said the gangsters wanted to get their money back from him, but that he had earlier said to the Tribunal that they had never paid him for the seafood, and that the applicant said in response that it was correct that they had never paid him, but said they wanted to take money from him as compensation: CB 144 at [4];
d)noted that the applicant alleged that the gangsters had cut his arm and had broken the little finger on both of his hands, and said to him that this was the first step, but had not told him what the next step would be: CB 144 at [4];
e)went on to assess the applicant’s claims and evidence and questioned the applicant on various aspects of his claims. It also referred to relevant information and materials that it would be considering, such as the Refugees Convention and a Department of Foreign Affairs and Trade (“DFAT”) country report on Malaysia: CB 145 at [6] and [7]; and
f)put to the applicant a number of issues, including:
i)the necessity to determine whether the harm the applicant feared was for one or more of the five reasons set out in the Refugees Convention, and in that context explored with the applicant the racial and religious significance of the gangsters being Malay, Indian and Muslim, whereas the applicant was Chinese and Malay: CB 145 at [6];
ii)relevant DFAT country information indicating that ethnic Chinese in Malaysia generally did not experience discrimination or violence on a day-to-day basis: CB 145 at [7];
iii)that the problem that had arisen was “a dispute over fish”, and in that context notes the applicant’s response which deals with the failure of the gangsters to pay him, their blackmailing him instead in an endeavour to get money from him, his refusal to give them money because he had none, and the harm that he suffered physically as a consequence which led to his escape from Malaysia: CB 145 at [9]-[10]; and
iv)that if the applicant did not meet the definition of refugee then the Tribunal would look at the question of complimentary protection and whether there was substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia back to Malaysia there was a real risk that he would suffer harm: CB 145-146 at [11].
In its conclusions the Tribunal considered:
a)that it was “far from confident that [the applicant] told the truth about the origin of his claimed problems in Malaysia” but noted that this was the only evidence before the Tribunal: CB 146 at [12];
b)categorised this as a “dispute over fish which he supplied to Malay gangsters”: CB 146 at [12], which did not appear to bring the applicant within the definition of a refugee under the Convention (that is, the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees): CB 146 at [13];
c)that the essential and significant reason the gangsters, who were Malay and Indian and also Muslim, might wish to harm the applicant was the dispute over the fish he supplied, and not because he was Chinese: CB 146 at [13];
d)whether the applicant's claim could be viewed as an attempt at extortion and that the applicant had been targeted because Chinese Malaysians do not occupy a high social position and could not avail themselves of police protection: CB 146 at [14];
e)that the applicant claimed he had no money to give to the alleged gangsters and found it was unlikely he would therefore be a target, and noted that there was nothing in the available country information to suggest there is a systematic discriminatory failure on the part of the Malaysian Government, of the sort referred to by the High Court in Minister for Immigration & Multicultural Affairs v Khawar [2002] HCA 14; (2002) 210 CLR 1; (2002) 76 ALJR 667; (2002) 187 ALR 574; (2002) 67 ALD 577 to protect people like the applicant from gangsters for a Convention reason: CB 146 at [14]; and
f)the DFAT country information which indicated that ethnic Chinese Malaysians generally do not experience discrimination or violence on a day-to-day basis, and concluded that it did not accept, on the evidence before it, that any Convention reason was the essential and significant reason for the persecution that the applicant feared from the gangsters, and that there was not the requisite connection in any of the Convention reasons for there being a real chance that the applicant would be persecuted by reason of race, or any other Convention reason, if he returned to Malaysia now or in the reasonably foreseeable future: CB 146 at [15].
The Tribunal’s conclusions went on to consider the issue of complimentary protection, and in that regard:
a)reiterated that it was far from confident that the applicant had told the truth about the origin of his claimed problems in Malaysia, noting that he had said that his problems arose from a dispute over fish supplied to Malay gangsters: CB 146 at [16] (and see [5(a)] above);
b)accepted that the applicant had suffered injuries as claimed but did not accept:
i)that he suffered the injuries as a result of the dispute over fish;
ii)that he had to leave Malaysia to save his life;
iii)that gangsters have been looking for him since he left Malaysia;
iv)that the applicant had been the victim of extortion, that being unlikely because he did not have money to give to the gangsters;
v)that gangsters had visited his parents’ home in 2014 and attacked his father; or
vi)that he was at risk if he returned to Malaysia: CB 147 at [16]-[18]; and
c)concluded, on the evidence before the Tribunal, that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there was a real risk that he would be killed or otherwise suffer significant harm (as defined in s.36(2A) of the Migration Act): CB 147 at [19].
The Tribunal therefore concluded that it was not satisfied on the evidence before it that the applicant was a person in respect of whom Australia has protection obligations under s.36(2)(a) or (aa) of the Migration Act: CB 147 at [20].
Grounds of the Judicial Review Application
The Judicial Review Application contains the following four grounds:
1. AAT made a mistake that my racial background was not the within the five reasons set out in the Refugee Convention.
2. AAT made unreasonable questions about that why I would not want to go back if there people had never caused any problem to my father or me as I repeated many times why I am afraid of going back to Malaysia.
3. AAT is misleading and confusing me when I was asked to respond the law which is very confusing to me. For many times, the AAT tried to talk to me about the refugee law but I really need protection from the danger.
4. AAT said it was not confident whether I told the truth, this is unreasonable and biased for no reasons.
Consideration
Ground 1
The Tribunal did not find that the claim for harm based on the applicant's racial background was not a Convention ground. Rather, the Tribunal found that the applicant had not made out a claim that he was attacked for reasons of race, and did so on the basis that:
a)the essential reason behind any dispute that the applicant had with the gangsters was a dispute about fish and not race; and
b)the country information indicated that ethnic Chinese Malaysians were not at risk of discriminatory violence on a day-to-day basis.
The Tribunal therefore determined, having regard to the facts as found by the Tribunal, that the applicant's dispute with the gangsters over the fish he supplied did not bear the requisite connection with any Convention reason. That determination was in the Court’s view correct on the facts as found, and, at the very least a factual finding reasonably open to the Tribunal on the material before it: see the cases cited at [25] below.
There was, therefore, no “mistake” made by the Tribunal, and ground 1 is not made out.
Grounds 2 and 3
Grounds 2 and 3 are also indicative of the applicant's confusion with both the process before and the task of the Tribunal. There is no error in the Tribunal:
a)asking the applicant questions relating to the essential reason behind his claims for harm; or
b)directing the applicant towards the requirements of the Convention.
The Tribunal’s task as an administrative decision-maker is, at least in part, inquisitorial. Procedural fairness demands, within the legislative restraints imposed by s.422B of the Migration Act, that a party liable to be directly affected by a decision is to be given the opportunity of being heard, which would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and being informed of the nature and content of adverse material: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [25] and [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. As such, all that the Tribunal appears to have done in the course of the Tribunal hearing is to endeavour to explain the relevant law and the task of the Tribunal to the applicant, and to put to the applicant those matters which procedural fairness required be put to him. On the face of the Tribunal Decision there is nothing unreasonable, misleading or confusing, about the manner in which the Tribunal appears to have acted in this matter. In the absence of a transcript of the Tribunal hearing, which the applicant would have been able to put in evidence pursuant to the Registrar’s Orders, this Court is confined to an examination of the Tribunal Decision to determine how the Tribunal fulfilled its role, and whether it was, as alleged, unreasonable, misleading and confusing in fulfilling its role. There is nothing in the Tribunal Decision record indicating that anything unreasonable, misleading or confusing occurred during the Tribunal hearing process, and in the absence of a transcript of the Tribunal hearing, the Tribunal Decision must be considered to be accurate: Evidence Act 1995 (Cth), s.60(1); SZRRY v Minister for Immigration & Anor [2013] FMCA 189 at [48] per Emmett FM; Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1; (2004) 79 ALJR 397; (2004) 211 ALR 660; (2004) 82 ALD 1 at [63] per Kirby J; NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21] per Beaumont, Merkel and Hely JJ; SZGJY v Minister for Immigration & Multicultural Affairs [2007] FCA 380 at [13] per Collier J; Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 at [59] per Perram J.
The Court also notes, for the sake of completeness, that there is nothing in the Tribunal Decision record, or its account of what occurred at hearing, which would render the Tribunal Decision unreasonable in a legal sense as referred to in the High Court’s Reasons for Judgment in Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181, as subsequently explained and summarised by the Full Court of the Federal Court and the Federal Court respectively in Minister for Immigration & Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437; (2014) 308 ALR 280; (2014) 139 ALD 50 and Minister for Immigration & Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J.
It may be that the applicant did not agree with the content of, or the possible implications arising from, propositions that were put to him by the Tribunal in the course of the Tribunal hearing. But there is nothing in the Tribunal Decision which indicates that the Tribunal did anything other than put to the applicant propositions which were proper matters for consideration by the Tribunal in the exercise of its merits-based discretionary decision-making.
It follows from the above that grounds 2 and 3 are not made out.
Ground 4
Ground 4 appears to relate primarily to the Tribunal’s findings with respect to the applicant’s credibility, but also raises the issue of unreasonableness and bias, albeit it seemingly in the context of the credibility findings.
The Tribunal is not required to accept uncritically any or all claims made by an applicant: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J; Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR at 596 per Kirby J.
It is well-established that findings in respect of credibility are a matter for the Tribunal and exclusively within its jurisdiction and that the Tribunal is not required to hold a positive state of disbelief before making credibility findings: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 559 per O'Connor, Branson and Marshall JJ, and that credibility findings are a matter par excellence for the Tribunal: Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 at [67] per McHugh J. Where the assessment of an applicant's credibility and the credibility of an applicant's claims are open on the evidence before the Tribunal, there is no jurisdictional error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
It is apparent that the Tribunal tried to take as broad a view of the applicant's claims as possible, and accepted that the applicant did not want to return to Malaysia, but considered that his fears were exaggerated.
The Tribunal’s ultimate conclusion was that the applicant had exaggerated his claims. In circumstances where the applicant's case revolved around his claim over a dispute over fish, without any independent evidence in support of that claim, and where the claim was not supported by country information, that was a reasonable conclusion.
For reasons set out in the immediately preceding paragraphs there is nothing inherently unreasonable in the Tribunal’s credibility findings, and nothing legally unreasonable in the Tribunal’s findings with respect to credibility: see [14] and [15] above.
As to bias, actual or apprehended bias which affects the Tribunal Decision may give rise to jurisdictional error: Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 (“Jia Legeng”); Re Refugee Review Tribunal;Ex parte H [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425, but there is no indication of bias on the face of the Tribunal Decision, and there is otherwise no particularised basis upon which such a serious matter as bias could be distinctly and clearly proven: Jia Legeng at [69] per Gleeson CJ and Gummow J and [127] per Kirby J. Further, the Tribunal Decision itself evidences that the Tribunal had a state of mind which admitted of the possibility of different conclusions being reached having regard to the evidence or arguments that might be presented to it: Jia Legeng at [72] per Gleeson CJ and Gummow J. There is, therefore, no basis for the allegation of bias, either specifically in relation to the Tribunal’s credibility findings, or generally in relation to the Tribunal Decision.
Ground 4 is, for the above reasons, not made out.
Generally
The applicant's grounds are essentially an invitation to take issue with the merits of the Tribunal’s findings. This Court has no jurisdiction to engage in merits review. Fact finding, including the making of credibility findings, is within the jurisdiction of the Tribunal and not this Court, and the Court reviewing the Tribunal Decision must be astute not to turn judicial review into merits review: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, RD Nicholson and Selway JJ; Wu Shan Liang CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
There was no error, jurisdictional or otherwise, in the Tribunal Decision.
Conclusion and orders
The Court has concluded that the applicant has failed to make out any of his four grounds. The Court is satisfied that there was no jurisdictional error in the Tribunal Decision. It follows that the Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 17 June 2016
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