CKS15 v Minister for Immigration

[2017] FCCA 113

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKS15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 113

Catchwords:
MIGRATION – Review of a decision of the Refugee Review Tribunal – application for a Protection (class XA) visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36(2)(a), 36(2)(aa), Div 4 Part 7

Cases cited:

Kopalapillia v Minister for Immigration (1998) 86 FCR 547

Applicant: CKS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2558 of 2015

Judgment of: Judge Hartnett

Hearing date: 3 November 2016

Delivered at: Melbourne

Delivered on: 25 January 2017

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Ms Kowalewska

Solicitors for the Respondents: The Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2558 of 2015

CKS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court was an application filed 18 November 2015 wherein the Applicant sought judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) which affirmed a decision of a delegate of the First Respondent to refuse the Applicant a Protection (Class XA) visa (‘the visa’). The date of the decision of the Tribunal was 12 November 2015.

2. The grounds of the application are as follows:-

   “For my refusal of protection visa refusal, I kindly seeking review due to my lack of English lang. uage, [sic] I was unable to express my concerns and did not provide evidence.”

3. The Applicant further claimed in his application that he “could not getting [sic] supporting docs. from Malaysia”.

4. By response filed 25 November 2015, the First Respondent sought that the application be dismissed and that costs follow such dismissal.

5. By order of Registrar Buljan of 27 April 2016, the Applicant was to file and serve any amended application with proper particulars of the grounds of the application and written submissions prior to the hearing. No amended application nor submissions have been filed or served. The Applicant was nevertheless given an opportunity to make any oral submissions as to his application at the time of hearing.

6. The First Respondent relied on contentions of fact and law filed 17 October 2016. The Court also had before it the evidence as contained in the Court Book filed 28 April 2016 and the Supplementary Court Book filed 10 October 2016.

History

1. The Applicant is an unmarried Chinese Buddhist from Johor in Malaysia. He first arrived in Australia in February 2010 under the name of X and became unlawful on 19 May 2010. He was detained on 17 July 2012. He requested removal from Australia and departed on 6 August 2012. The Applicant did not lodge a protection claim at this time.

2. The Applicant returned to Australia under his current name on 23 November 2012. His visa expired on 23 February 2013 and he remained in Australia unlawfully. On 22 January 2015 he applied for the Protection (Class XA) visa.

3. A delegate of the Minister for Immigration and Border Protection refused to grant the visa on 10 April 2015.

4. On 3 May 2015 the Applicant applied to the Tribunal for review of the delegate’s decision.

5. On 21 October 2015 the Applicant appeared before the Tribunal to give evidence and present arguments in support of his review application. He was assisted by an interpreter. The Tribunal made an oral decision at the hearing to affirm the delegate’s decision.

Applicant’s Claims

1. The Applicant claimed that he had difficulties with local gangsters in Malaysia who were seeking protection money from him and that as a consequence he had an argument with them in 2009. As set out in the Tribunal’s Statement of Reasons and Decision (‘the Decision Record’) in paragraph 14. The Tribunal noted as to that claim:-

   “…that there is country information of examples of gangs seeking protection money from small business owners. So that element of the applicant’s claim is plausible. The Tribunal notes, however, that this dispute that the applicant got into an argument with these gangsters or gang members was back in 2009.”

Tribunal Findings

1. Otherwise, as set out in its Decision Record and in the First Respondents’ submission the Tribunal found:-  

   a)that the Applicant’s claim did not provide a reason under the Migration Act 1958 (‘the Act’) for a well founded fear of persecution. It noted that under the provisions of s.5J of the Act there are particular reasons outlined, being race, religion, nationality, membership of a particular social group or political opinion. The Tribunal found that the Applicant made no submission on ‘this concern’; and

   b)it did not accept that the Applicant’s claims provide any grounds under s.5J(1) of the Act. Accordingly, it did not accept that the Applicant had grounds under s 36(2)(a) of the Act for the grant of the visa.

2. The Tribunal went on to consider whether there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia, there was a real risk the Applicant would suffer significant harm under s36(2)(aa) of the Act. As said in its Decision Record:-

   a)the Tribunal questioned the Applicant as to why he decided to return to Malaysia in 2012 if he had a fear of harm. The Applicant stated that it was because he was detained in Australia. The Tribunal found that the Applicant had the opportunity to seek protection the first time he had come to Australia, and had not done so. The Applicant claimed that he was not aware of this opportunity. The Tribunal considered that the Applicant would have been aware of the opportunity to seek a protection visa while he was being detained. The Tribunal considered that the Applicant had the opportunity to apply for the visa but chose not to do so, and returned to Malaysia;

   b)the Tribunal noted that the Applicant returned to Australia in November 2012 and again chose not to apply for the visa until January 2015;

   c)the Tribunal noted that it was legitimate to take into account the Applicant’s delay in lodging an application for a protection visa in assessing the genuineness or the depth of the Applicant’s claim for fear of persecution;

   d)the Tribunal stated the fact that the Applicant did not make the application earlier was of significant concern to it. It found that the Applicant had not always been honest in providing information to the Department. It noted that in his application for the visa, the Applicant was directly asked if he had been in Australia to which he answered ‘no’. The Tribunal did not accept the Applicant’s explanation that he was thinking of his current circumstances;

   e)the Tribunal did not accept that the Applicant had to close his own business. It noted that in his application for the visa, the Applicant had made no reference to any business of his own but one that was run by his father. This was a business that the Applicant confirmed as still operating. The Tribunal did not accept that the Applicant was forced to close his business, as he did not have such a business;

   f)the Tribunal did not accept as plausible that six years after the earlier referred to (in paragraph 12 herein) argument in 2009, gang members had any ongoing interest in the Applicant arising out of this argument. It did not accept that a dispute as to paying some money to gang members in 2009 would lead to any ongoing animosity or difficulty for the Applicant. It did not accept that these gang members had been seeking the Applicant subsequently;

   g)the Tribunal noted that the family business had continued to operate, and the Applicant had not made any claims that the business had any difficulties arising for other family members since he left. The Tribunal considered that any arguments that he may have had in 2009 were now well in the past and would not be a reason for the Applicant to be harmed now or in the reasonably foreseeable future;

   h)the Tribunal found that the Applicant would be able to return to Malaysia and work in the family business, as he had done in the past, and would not face a real risk of significant harm from the gangsters for the reason he claimed;

   i)the Tribunal noted that the Applicant had not claimed that his family had to pay money at the present time and consequently, it did not consider that there was a real risk that the Applicant would be required to pay protection money in the future;

   j)given the Tribunal’s significant concerns with the evidence of the Applicant, the Tribunal did not accept that the Applicant was a truthful witness. It considered that the Applicant had concocted or embellished certain claims to seek to remain in Australia. It found the Applicant’s claims that he required protection now, were not true; and

   k)the Tribunal found that the Applicant did not have a real risk of significant harm on return to Malaysia. Accordingly, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Malaysia, there was a real risk the Applicant would suffer significant harm.

Consideration

1. The Applicant does not raise any proper grounds of judicial review nor any particularisation of those matters. The Applicant was assisted by a Mandarin and English speaking interpreter at the hearing before the Tribunal. There is nothing in the Tribunal’s decision which indicates that the Applicant was not given a fair hearing. The Tribunal complied with its obligations under Division 4 Part 7 of the Act.

2. The Applicant’s claim that he could not get supporting documents at the time of the Tribunal’s hearing is without merit. The Applicant has not indicated the nature of the documents he was intending to obtain and there is nothing in the Tribunal’s decision which indicates that the Applicant had requested further time to provide documentary evidence in support of his claims for protection. The application for the visa was lodged in January 2015. As submitted by Counsel for the First Respondent, the Applicant had ample time to obtain any evidence which he may have wished to obtain in support of his application.

3. The Tribunal made adverse credibility findings about evidence relating to the Applicant’s claims for protection. As submitted by Counsel for the First Respondent, a finding as to credibility is a finding of fact and is sound if based on rational grounds after consideration of matters logically probative of the issue of credibility.[1]

   [1] Kopalapillia v Minister for Immigration (1998) 86 FCR 547.

4. The Tribunal’s findings of fact were open to it on the available evidence and material before it and were not unreasonable, illogical or irrational. No jurisdictional error attends the decision and the application will accordingly be dismissed with costs.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  25 January 2017