CKY16 v Minister for Immigration

[2020] FCCA 906

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKY16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 906

Catchwords:
MIGRATION – Protection visa – IAA assessment – where primary applicant born in Myanmar and of Muslim faith – where primary and secondary applicants spent 18 years in Malaysia – where applicants arrived in Australia by boat in 2012 – where primary applicant lodged visa application in 2013 – where primary applicant had Pakistani parentage, claimed to be stateless and that this adversely affected his opportunities – where primary applicant claimed that his village was controlled by militia – where primary applicant identified poor treatment due to ethnicity – no family elsewhere in Myanmar – where secondary applicant claims to be stateless – where the applicants provided birth certificate for youngest child, resulting in suggestion of bogus documents – where applicants lodged application for judicial review – application dismissed.

Legislation:

Federal Circuit Court of Australia Act1999 (Cth), ss.67. 68
Migration Act 1958 (Cth), ss.5, 65, 91WA, 473DA, 473DB, 473DC, 437DD, 473GA, 473GB, 477

Cases cited:
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
DBE16 v Minister for Immigration and Border Protection [2017] FCA 942
DGZ16 v Minister for Immigration and Border Protection [2018] 258 FCR 551
Minister for Immigration v Citizenship v SZMDS (2010) 240 CLR 611

First Applicant: CKY16

Second Applicant: CKZ16

Third Applicant: CLA16

Fourth Applicant: CLB16

Fifth Applicant: CLC16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 1880 of 2016

Judgment of: Judge A Kelly

Hearing date: 31 March 2020

Date of Last Submission: 31 March 2020

Delivered at: Melbourne

Delivered on: 23 April 2020

REPRESENTATION

Counsel for the Applicant: Mr R. Abbas

Solicitors for the Applicant: R & J Lawyers

Counsel for the Respondents: Ms J. Lucas

Solicitors for the Respondents: Sparke Helmore

THE COURT ORDERS THAT:

1. By consent, pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), the Court directs that the parties be allowed to appear and to make submissions before the Court by audio link.

2. The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

3. By consent, the time within which the applicant may file an application for judicial review be extended, now for then, to 4 February 2019.

4. The amended application filed on 4 February 2019 be dismissed.

5. The applicant pay the costs of the first respondent as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1880 of 2016

CKY16

First Applicant

CKZ16

Second Applicant

CLA16

Third Applicant

CLB16

Fourth Applicant

CLC16

Fifth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By amended application filed on 4 February 2019, the applicants seek judicial review of a decision of the Immigration Assessment Authority (Authority) made on 21 July 2016 affirming a decision of a delegate of the first respondent (Minister) refusing to grant them Protection visas pursuant to s 65 of the Migration Act 1958 (Act).

2. By the amended application, the applicants sought an extension of time pursuant to s 477 of the Act within which to seek judicial review of that decision. The application was lodged seven days out of time. However, the Minister consented to the extension in the circumstances and I am satisfied such an extension was appropriate.

3. For the reasons which follow, I have concluded that the application should be dismissed.  In summary, I have concluded that the Authorities’ decision was not affected by legal unreasonableness in circumstances where the primary applicant was found not to be credible.  Nor was the decision affected by procedural fairness for want of informing the applicants of matters, including country information, which might be dispositive of the claim on review.  I do not accept that the decision was tainted for failure to take into account relevant considerations or by having taken irrelevant considerations into account.

Background

1. The background to the matter is largely common ground.

2. The first applicant is a male of Muslim faith aged 49 years who claimed to be stateless.  He was born in Myanmar.  His father was a Muslim from Pakistan who came to Myanmar as a young child, and his mother is a Buddhist who was born in Myanmar.  The second applicant is a female of Muslim faith aged 48 years old who was born in Myanmar who also claims to be stateless.  The third, fourth and fifth applicants are the children of the first and second applicants.  According to his claims, the first and second applicants left Myanmar in 1994 and had lived for 18 years in Malaysia before travelling via Indonesia to Christmas Island.

3. On 17 September 2012, the applicants arrived in Australia by boat. 

4. On 3 July 2015, the applicants lodged valid applications for Temporary Protection (subclass 785) visas.  In a statutory declaration made on 30 October 2013, the first applicant made the following claims:

   a)as a Muslim born in Myanmar to a Pakistani father, he did not have a legal right to identity papers, free education, medical assistance or the ability to work;

   b)the only identity documents he and his wife had ever held were their refugee cards as issued to them in Malaysia by the UNHCR;

   c)the village he lived in numbered about 500 households and was controlled by Khun Sa militia, but his family was one of only about seven Muslim households;

   d)his family was treated badly, including by other oppressed groups, for example, Rohingyans, because of their ethnicity and Pakistani background;

   e)his father was a farmer who owned three plots of land but those lands were all confiscated;

   f)on a day trip to visit his father in hospital, the bus he was travelling on was stopped in a military blockade and he was taken to a small house where an officer told him “you’re lucky that your father is still alive”;

   g)he was forced to work as a porter for the military and, in one incident in 1993, he carried a basket on his back in mountainous terrain for over a month whilst receiving physical abuse.  He managed to escape to his sister’s house, where he contacted his mother who informed him that he could not return home because the military were looking for him every day.  His sister travelled back to his home to collect his wife, and when they had reunited they managed to smuggle themselves across the border to Thailand;

   h)he has no family members living elsewhere in Myanmar and no identity papers enabling him to resettle to another part of that country;

   i)he fears repression, oppression, harm or death at the hands of the military, rebels and Buddhist nationalists if he were to return to Myanmar.

5. The second applicant also provided a statutory declaration made on 30 October 2013 which relied upon the first applicant’s claims and briefly outlined her claims to protection, including that:

   a)her parents were born in Myanmar, were Muslim, but never had identity papers;

   b)as a stateless Muslim woman in Myanmar, she was vulnerable to physical abuse, rape and death from the government’s security forces, rebel groups and Buddhist nationalists;

   c)she feared for the safety of her children if they were to return to Myanmar because they would not have access to education, health care and citizenship papers;

   d)as she did not have citizenship documents providing the right to enter Myanmar, she feared that she would be arrested and badly hurt if she were to return.

6. Following a request from the Department of Immigration, on 4 February 2014 the applicants provided copies of their UNHCR refugee cards, the children’s birth certificates and other supporting documentation.  However, the first applicant noted that he could not provide copies of his birth certificate or passport because he had never possessed them, nor his marriage certificate as it was still in Myanmar.

7. On 16 December 2015, the first and second applicants attended an interview with the delegate.  During the interview, the delegate questioned the first applicant as to why the fifth applicant’s birth certificate listed a person other than himself (Hla Myint) as father.  The first applicant stated that he had paid his friend money to obtain it.  By contrast, during her interview, the second applicant stated ‘spontaneously’ that Hla Myint was the first applicant’s other name and the Burmese passport number listed on the birth certificate belonged to another person who had attended the hospital as a witness.  The delegate offered the applicants a week to provide submissions addressing the discrepancy between the first and second applicants’ explanations.

8. On 23 December 2015, the applicants’ representative provided the post-interview submissions together with statutory declarations deposed by the first and second applicants. The submissions addressed the issue of whether the fifth applicant’s birth certificate was a bogus document. The submissions noted that the document did not satisfy the definition of a bogus document in s 5(1) of the Act because: it was not issued in respect of the primary applicant; it was issued by an official authority in Malaysia without having been altered by a person who did not have the authority to do so; and, it was not obtained because of a false or misleading statement, because in order to obtain a Malaysian birth certificate there did not appear to be a requirement that either of the parents be Malaysian or be able to present identity documents. The applicants submitted that s 91WA(1)(a) of the Act was not engaged because the applicants had not intended to mislead or deceive the Department by providing it with the fifth applicant’s birth certificate as part of “innocently providing all of the identity documents that they had for their family”.  Alternatively, the applicants submitted that if the delegate deemed the birth certificate to be a bogus document, there was a reasonable explanation for doing so because they were illiterate and required the assistance of others to obtain birth certificates.  Finally, the applicants submitted that they did not speak openly to the delegate about the discrepancy in the birth certificate because they were “scared, stressed and nervous and worried”.

9. On 2 June 2016, a delegate of the Minister refused the application, finding that first and second applicants to be nationals of Myanmar.  The delegate found that the first applicant had lied about his use of the name Hla Myint, found him not to be a credible witness and did not accept their claims to be undocumented and stateless persons.  However, the first applicant’s claim to have been involved in an altercation with a soldier in 1993 was accepted and that this had resulted in his departure from Myanmar.  The delegate accepted the first applicant’s claim to fear harm as a result of an imputed political opinion but considered that as the incident had occurred more than two decades earlier, he would not be pursued by the authorities in relation to that incident.  Claims to be a refugee or otherwise entitled to complementary protection were rejected.

10. On 8 June 2016, the Authority notified the first applicant that the delegate’s decision had been referred to it for review.  On 21 July 2016, the Authority affirmed the delegate’s decision and provided a statement of its reasons for doing so (Reasons).

Procedural history

1. On 1 September 2016, the applicants filed an application for judicial review of the Authority’s decision together with an affidavit affirmed by their solicitor that exhibited a copy of the Reasons, and an affidavit affirmed by the first applicant outlining his reasons for applying for an extension of time.

2. By a Response filed on 14 October 2016, the Minister opposed the application on the stated basis that the Authority’s decision was not affected by jurisdictional error. The Minister did, however, consent to the time for making the application be extended under s 477 of the Act.

3. On 28 February 2017, orders were made, by consent, listing the matter for final hearing and appointing the first applicant as litigation guardian for the third, fourth and fifth applicants. 

4. On 4 February 2019, an amended application was filed which abandoned the original grounds and advanced four new grounds of review.

5. Although submissions were filed on behalf of the applicant and Minister, oral submissions were made only in respect of amended Ground 3.  Otherwise, the applicants’ relied upon their written submissions.

Consideration

Ground 1 – legal unreasonableness

1. Ground 1 of the amended application reads:

   The Immigration Assessment Authority's (IAA) decision that there was no real chance of harm being caused to the applicants was unreasonable.

   Particulars

   i.   the IAA accepted that:

   a.the applicants were Muslims; (at [18], [24], [28], [63] of the decision)

   b.  would continue to be Muslims;

   c.The third, fourth and fifth applicants were children of the first and second applicant;

   d.  The applicants were from Myanmar;

   e.Muslims are among the stateless in Myanmar; (at [47] of the decision)

   f.There were some barriers to the Muslims obtaining citizenship in Myanmar; (at [49] of the decision)

   g.First applicant was a victim of forced labour; (at [58] of the decision)

   hThere were military activities in the area and ongoing conflicts;(at [59] of the decision)

   i.The family of the first applicant was forced to pay heavy fines and bribes to the military and the rebels; (at [59] of the decision)

   j.First applicant assaulted a soldier before leaving Myanmar; (at [59] of the decision)

   k.First applicant was forcibly recruited and needed to use violence against a soldier to escape from army; (at [60] of the decision)

   l.some barriers to work will arise for the applicants in Myanmar; (at [64] of the decision)

   m.There is a real chance that the applicants may face low and moderate levels of discrimination and disadvantage on the basis of their religion and ethnic background and/or on the basis of the gender of the second applicant and her daughter. (at [88] of the decision)

   n.There is credible information of rapes of the Muslim women in northern Rakhine Sate, which authorities failed to investigate. (at [71] of the decision)

   o.There is evidence of the sexual violence of women and the young girls stemming from the Kachin conflict, which extends from Kachin State into northern Shan State. (at [71] of the decision)

   p.The applicants will face some disadvantage and discrimination due to their religion and gender if they return to Myanmar. (at [80] of the decision)

   ii.The IAA made an adverse finding regarding the credibility of the applicants on the basis of irrelevant and insignificant issues.

2. As I understood the applicants’ written submission as concerned this ground, it was that, having accepted each of the matters set forth in the particulars above, it was not open to the Authority to find that there was no real chance of persecution or of serious harm should they return to Myanmar.[1]  In advancing this ground, it was accepted that adverse credibility findings had been made against the first applicant.[2] 

   [1] Applicants’ submission at [33].

   [2] Applicants’ submission at [32].

3. I accept that the adverse credibility findings made by the Authority were open to it on the material before it and that a high degree of caution must be exercised before finding that adverse credibility findings establish jurisdictional error in an administrative decision.[3] The Authorities’ findings were made based on an assessment of the claims and evidence asserted by the applicants: [38]-[46], [50] and [60]-[61]. I also accept that Ground 1 should be considered as an impermissible attack on the merits of the Authorities’ decision. Having regard to those matters, it was not legally unreasonable to have rejected the applicants’ claims or to have found that they did not face a real risk of harm given the country information that was before it.

   [3]Minister for Immigration v Citizenship v SZMDS (2010) 240 CLR 611, [131]-[135] (Crennan and Bell JJ); DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30(5)] (Kenny, Kerr and Perry JJ).

4. Ground 1 is rejected.

Ground 2 – procedural fairness

1. Ground 2 of the amended application reads:

   The IAA's decision was in breach of procedural fairness.

   Particulars

   i.The Authority made these findings by relying on the country information reports prepared by the Department of Foreign Affairs and Trade (DFAT) for protection status determination purposes. However, the Authority failed to provide this information to the applicants and seek their response.

   ii.The authority observed that there was no suggestion or claim that the applicants would seek to, or even would be able to access and live in the conflict areas but failed to raise this with the applicants and seek their response. (at [67], [75] of the decision)

2. The substantive complaint raised by the applicants’ written submission was that the Authority made findings that there was no real chance that any of the applicants would be seriously harmed if they returned to Myanmar by relying on reports of country information prepared by the Department of Foreign Affairs and Trade (DFAT) and information on citizenship law of Burma without first providing this information to the applicants and seeking their response. The failure to do so was said to constitute procedural unfairness, being that the applicants were not afforded a meaningful opportunity to respond to the information.

3. The applicants further complained that the Authority had observed there was no suggestion or claim they would seek, or be able, to access and live in areas affected by conflict and that it had also failed to raise this with the applicants and seek their response.

4. The Authority’s procedural fairness obligations are set out in Pt 7AA, Div 3, of the Act which is taken (together with ss 473GA and 473GB) to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to a review by the Authority.[4]  As a consequence, and in contrast with reviews under Pt 5 and Pt 7 of the Act, there was no procedural fairness obligation to put dispositive matters to an applicant or to alert an applicant that a matter might be decided on a different basis from how the matter was determined by the delegate: DGZ16 v Minister for Immigration and Border Protection.[5] The combined effect of ss 473DA(1), 473DB(1) and 473DC(2) required the Authority to conduct a review of the delegate’s decision on the papers. The common law rules of procedural fairness does not govern the way in which reviews are to be conducted under Part 7AA.[6]

   [4] Act, s 473DA.

   [5] [2018] 258 FCR 551, [75] (Reeves, Robertson and Rangiah JJ).

   [6]Ibid.

5. The DFAT country information and citizenship law of Myanmar/Burma was not new information for the purpose of s 473DD of the Act, as this information was already before the delegate and was set out in the decisional record of the delegate.

6. The applicants had been given an opportunity to discuss their claims at the interview before the delegate. Concerns as to the applicants’ credibility were also discussed at interview: [9].

7. Furthermore, there was no obligation on the Authority to give notice that it may make a particular finding or to invite the review applicants to comment on such a possibility, either in writing or at an interview.[7]

   [7]            DBE16 v Minister for Immigration and Border Protection [2017] FCA 942, [65].

1. Ground 2 is rejected.

Ground 3 – relevant considerations

1. Ground 3 of the amended application reads:

   IAA failed to take relevant consideration into account before rejecting the claim of the applicants that they were stateless.

   Particulars

   i.The IAA failed to decide whether the applicants were stateless by making a determination on the basis of the operation of the citizenship law of Myanmar/Burma.

   ii.Failed to assess and determine the level and availability of legal protection in Myanmar to people like the applicants.

2. While the applicant’s written submission did not appear to engage with this ground, it was particularised so as to suggest that the Authority failed to take into account the citizenship law of Myanmar/Burma when determining whether the applicants were stateless and failed to take into account state protection.  This is not a tenable proposition.

3. The Reasons identified the country information indicating that there were ~800,000 stateless persons and, contrary to the applicants’ oral submissions, identified the applicable Burmese laws which governed citizenship. The Authority rejected the applicants’ claims that they were stateless, doing so on the basis that it did not accept that they were witnesses of credit and did not accept their claims that they were not citizens of Myanmar: [46]-[51].

4. Ground 3 is rejected.

Ground 4 – irrelevant considerations

1. Ground 4 of the amended application reads:

   IAA took irrelevant consideration into account.

   Particulars

   i.The IAA considered country information about legal rights of women and education for girls to find that there was no real chance of the applicants being harmed. IAA failed to appreciate that the claim of the applicants was not based on gender only but on the gender of a particular religion. (at [74], [75], [76] of the decision)

2. As best I could understand the applicants’ written submission it was that the Authority considered general country information about legal rights of women and education for girls in finding that there was no real chance of the applicants being harmed but the Authority failed to put this information to the applicants before rejecting their claim.

3. Contrary to the applicants’ submission, the Authority made detailed findings in relation to the applicants’ claims to fear harm on account of their religion[63]-[70]; a fear of harm faced by Muslim women in Myanmar: [71]; and, gender: [71]-[78]. It also considered the applicants’ claims on a cumulative basis: [82], [87]. In this respect, the Authority took into account the availability of education and health services for young girls and women in Myanmar and sexual violence against women in certain areas of Myanmar, but found that the applicant wife and daughter would not face harm on return for these reasons: [74]-[77].

4. For the reasons given above in relation to Ground 2 also, there was no error by the Authority in taking into account, but not putting to the applicants, country information which was relevant to its decision.

5. Ground 4 is rejected.

Conclusion

1. For the reasons above, the application should be dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Associate: 

Date:  23 April 2020