CJY16 v Minister for Immigration

[2017] FCCA 685

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJY16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 685

Catchwords:
MIGRATION – Application for judicial review – citizen of Malaysia – refusal of protection visa – adverse credibility findings – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.195

CQG15 v the Minister [2016] FCAFC 146
Re Minister for Immigration and Multicultural Affairs, Ex Parte Durairajasingham [2000] HCA 1,74 ALJR 405, 168 ALR 407

Applicant: CJY16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 28 of 2016

Judgment of: Judge Young

Hearing date: 14 March 2017

Date of Last Submission: 14 March 2017

Delivered at: Darwin

Delivered on: 14 March 2017

REPRESENTATION

Applicant appearing in person via videolink

Counsel for the Respondent: Ms Gallagher

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application filed 26 August 2016 be dismissed.

2. That the Applicant pay the Respondent’s costs of and incidental to the application fixed in the sum of $4,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 28 of 2016

CJY16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex tempore

1. These reasons for judgement were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT) made on 8 August 2016. The applicant is a Malaysian citizen. She is 32 years old. She applied for a protection visa which was refused on 8 February 2016 by a delegate. On 28 July there was a hearing by the AAT with a Mandarin interpreter present. As I mentioned, on 8 August 2016 the AAT affirmed the decision of the delegate to refuse the applicant a protection visa. The original grounds set out by the applicant in her application for a protection visa were, and I summarise, that her father had had a stroke and she was unable to afford medical treatment for him so she went to a politician and the politician said that he would help her but on condition that she changed her religion to Islam. She refused to do that and then came to Australia and sought protection. Her stated fear on returning was that, according to her application, “they would change my religion as a Muslim”, which I take to mean that on return she would be compelled to convert to Islam.

3. In the hearing before the AAT those claims were made and there were additional claims made for the first time.  She alleged that she had been the subject of threats from a moneylender in Malaysia. She said that she had been forced to move away from her family home in Kuala Lumpur. She also said that her family had been harassed and threatened by the same moneylender some two months after she left Malaysia. She said that she feared returning to Malaysia due to the security situation and claimed that she had been beaten and robbed. 

4. None of those matters were disclosed in her protection visa application. She said that the reason for that was that she had had a friend complete the form and it did not truly reflect her claims. The Tribunal did not accept that explanation primarily because in her protection visa application the applicant said that she spoke, read and wrote English in addition to Mandarin and Malay languages and at the beginning of the Tribunal hearing the Tribunal asked the applicant whether what she had stated in her protection visa application was true. She also said, according to paragraph 21 of the reasons of the Tribunal, that she understood the contents of the forms when she signed them and did not wish to add or change the information provided in the forms. 

5. It was on those bases that the Tribunal concluded that the applicant was not truthful and, in addition, in relation to the associated claims or more general claims made by the applicant about Malaysia the Tribunal, relying on Department of Foreign affairs and Trade country information, said that it was not satisfied that the applicant’s claims about the health system in Malaysia or the political or security situation as outlined by the applicant were correct. The Tribunal accepted that the applicant’s father may have had a stroke but it did not accept that she had approached a politician at any time. It did not accept that there was a real chance of serious harm or harm of any kind should the applicant return to Malaysia.

6. The Tribunal also assessed the applicant’s complementary protection claims and, as they were the same or rested on the same claims as the protection visa claims, there was a finding that there was no obligation of complementary protection either. 

7. In this court the applicant identified five grounds for her application:

   Ground 1, “AAT was prejudiced and did not believe my approaching politician and refused help and assistance because of my refusing to join the party or change religion”. 

   Ground 2, “The Tribunal was very biased and did not believe that I had borrowed money from moneylender at high interest rate and had been unable to repay the moneylender, who came to my family home, threatened me that they would harm me if I did not repay the money and the unreasonable high interest”.

   Ground 3, “AAT made unreasonable presumption that I had not been beaten and robbed in the past or had mirror taken from car”.

   Ground 4, “AAT tried to discredit me with relentless pursuit of my not mentioning the moneylender’s threatening and harm to me at the very beginning of protection visa application in the visa application form”.

   Ground 5, “AAT has prejudice against me and did not believe me of my parents living in the family home previously and moved at a later time for avoiding harm from the moneylender”. 

   (without alteration from original).

8. It can be seen that grounds 1, 2 and 5 are at least superficially couched in terms of prejudice or bias. There are no particulars of bias or prejudice and there is in fact was no evidence whatsoever of any bias or prejudice by the Tribunal. I interpret those grounds as attacks on the credibility findings made by the Tribunal against the applicant and I take each of the grounds, including ground 3 and 4, as simply challenges to the Tribunal’s credibility findings.  

9. As is well understood, credibility findings are often a matter par excellence for the Tribunal. The Minister relied on Re theMinister for Immigration and Multicultural Affairs, Ex Parte Durairajasingham [2000] HCA 1, 74 ALJR 405, 168 ALR 407 at [67] where McHugh made that well-known observation. However, as pointed out by the Full Court of the Federal Court in CQG15 v MIBP [2016] FCAFC 146, nothing that McHugh J said in Durairajasingham should be read as permitting the conclusion that findings on credibility are not amenable to judicial review on jurisdictional error grounds. Their Honours said at paragraph [37] that there is a risk that a mechanical use of the phrase “par excellence” as a formula fails sufficiently to appreciate this important reality. The court went on to say that there could be challenges to credibility findings on the basis of jurisdictional error on a number of different grounds, including failure to afford procedural fairness, reaching a finding without any logical or probative basis, unreasonableness, which may in context be more or less the same thing, and the kinds of error discussed by Flick J in SZVAP.

10. I treat the application as really a challenge to the credibility findings of the Tribunal.  On my reading of those findings, the findings were made on a logical and evident basis. The initial claims set out in the protection visa form in writing by the applicant said that she speaks, reads and writes English, no doubt as a second language, but nevertheless that she speaks, reads and writes English. On direct questioning by the Tribunal as to whether or not she adopted what was said in the form and whether or not she wished to add anything to it she expressly refrained from making additional claims. She then orally made additional claims of the kind that I have just referred to, that is, in addition to the claim of fear of a compulsory conversion to Islam in Malaysia, that there were threats against her and her family by a moneylender and, in addition, allegations about being beaten up and having a car mirror stolen. It appears to me on reading the Tribunal decision that it was unavoidable that the Tribunal would have serious doubts about the applicant’s credibility. Those doubts were not dispelled by the applicant.

11. In the circumstances there appears to me to be a logical and evident basis for the adverse credibility findings. Those credibility findings were to some degree supported by the country information that the Tribunal relied on, particularly the country information regarding the health system. I am not satisfied that there is any error in the Tribunal’s reasoning.  The application is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  5 April 2017