CPL17 v Minister for Immigration
[2018] FCCA 1365
•25 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CPL17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1365 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 65, 411, 415 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 BUP16 & Ors v Minister for Immigration & Anor [2017] FCCA 1782 Minister for Immigration v SGLB (2004) 207 ALR 12; [2004] HCA 32 |
| Applicant: | CPL17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1852 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 25 May 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr J Pinder of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1852 of 2017
| CPL17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 17 May 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts concerning the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s submissions filed on 21 May 2018.
The applicant is a citizen of Malaysia who arrived in Australia on 30 July 2015 on an electronic travel authority (class UD) (subclass 601) visa. The applicant applied for a protection visa on 30 October 2015.[1]
[1] Court Book (CB) 1–35
On 4 February 2016 the delegate refused to grant the applicant a protection visa.[2]
[2] CB 73–100
The applicant sought review of the delegate's decision before the Tribunal by application dated 24 February 2016.
The applicant appeared at a hearing before the Tribunal on 8 May 2017.[3]
[3] CB 127–129
The Tribunal made its decision on 17 May 2017, affirming the decision not to grant the applicant a protection visa.[4]
[4] CB 137–154
Applicant’s claims
The applicant claimed to fear harm in Malaysia from religious police who would detain him in a Muslim rehabilitation centre for “faith purification” or sentence him to death for apostasy.[5] In support of his claims, he recounted the following events:
a)his mother was a Christian, but the applicant converted to Islam to marry his wife because her family were strict Muslims;
b)in 2006, he had a disagreement with his wife and she moved out because her relatives had observed him attending a Christian religious gathering;
c)the applicant and his wife reconciled in 2007, but separated again in October 2013 after the applicant came home drunk and physically assaulted his wife;
d)in June 2015, the applicant inadvertently visited his mother with his youngest daughter while she was hosting a bible study group and the applicant's ex-wife accused him of proselytising their daughter;
e)his father-in-law told the religious police, who came to his house, but they let him off with a warning when he paid a bribe; and
f)the applicant had attended church in Australia and wanted to live as a Christian and follow Christianity.
[5] CB 36–41
Tribunal decision
The Tribunal rejected the applicant's claims on the basis of adverse credibility findings and because they were not well-founded. The Tribunal made the following key findings:
a)it accepted that the applicant's mother was Christian and that it was plausible that the applicant had attended church with his mother as a child and was baptised;[6]
b)it accepted the applicant completed a pre-conversion course and was accepted as a Muslim;[7]
c)it accepted the applicant and his wife fought and separated on two occasions and that she moved in with her parents in 2013;[8]
d)it accepted that from his conversion in 1998 until he departed for Australia in 2015 the applicant rarely attended mosque and did not pray five times a day, and found that his father-in-law's acceptance of this behaviour undermined the applicant's claim that his wife's family were strict Muslims;[9]
e)it did not accept the applicant's claim that he inadvertently took his children to visit his mother when she was hosting church events;[10]
f)due to inconsistencies in his account,[11] it did not accept that the applicant was accused of proselytising or that he was detained by the religious police;[12] and
g)it did not accept that the applicant had attended church in Australia regularly or that he was a member of a Christian community[13] and having accepted the applicant's evidence that he attended a mosque in Australia[14] it found his claim to want to practise Christianity was not credible.[15]
[6] CB 144: [59]–[60]
[7] CB 144: [64]
[8] CB 144: [67]–[68]
[9] CB 145: [70]–[72]
[10] CB 145: [73]
[11] CB 140: [21]–[22], CB 141: [25], CB 142: [35] and CB 144: [57]
[12] CB 145: [74]–[75]
[13] CB 146: [83]–[84]
[14] CB 145: [77]–[78], [81]
[15] CB 146: [85]
For those reasons, and on the basis of country information, the Tribunal did not accept that the applicant would be of any interest to religious police in Malaysia or that he would be persecuted in Malaysia for reason of his religion,[16] his race or ethnicity,[17] or his race and religion considered cumulatively.[18]
[16] CB 147: [93]
[17] CB 147: [96]–[99]
[18] CB 148: [100]–[102]
In the context of complementary protection, and for essentially the same reasons, the Tribunal was not satisfied the applicant faced a real risk of significant harm.[19]
[19] CB 148–149: [103]–[111]
The present proceedings
These proceedings began with a show cause application filed on 14 June 2017. There are four grounds in it:
1.The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon his returns to Malaysia.
2.The Tribunal member failed to consider an integer of Applicant's claim, in failing to consider whether or not a converted Christian (regardless of past persecution) in Malaysia was at risk of harm from Muslim fanatics and Sharia Court, and not able to access effective protection.
3.The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the MigrationAct.
4.The Tribunal has failed to investigate applicant's claim, specially the grounds of persecution in Malaysia.
(errors in original)
The application is supported by an affidavit filed with it which I received as a submission. In that affidavit the applicant asserts that the Tribunal constructively failed to exercise its jurisdiction.
I have before me as evidence the court book filed on 10 October 2017.
I invited oral submissions from the applicant this afternoon. He initially appeared at a loss to know what to say. I prompted him to tell me what he thought was wrong with the Tribunal decision. The applicant told me about his background in Malaysia and the difficulties he anticipates there, should he be required to return.
The applicant told me he was not saying there was necessarily anything wrong in the Tribunal decision, but I understood him to be saying he would like someone else to take a closer look at his claims. I explained to the applicant the limited nature of this Court’s jurisdiction and the need to address legal issues, such as whether there was a fair hearing opportunity.
The applicant then told me two things. The first was that he has consulted a Malaysian lawyer in the last couple of days. The applicant considers that the lawyer would be in a better position to explain his claims.
The applicant also told me that he experienced interpretation problems at the Tribunal hearing. He said that the Tamil interpreter was from Sri Lanka and the applicant had difficulty understanding him. I asked the applicant if he had raised any interpretation problem with the Tribunal. He said that he had done so, but that the Tribunal had encouraged him to continue regardless.
There is nothing in the application or its supporting affidavit which suggests any problems of interpretation. The applicant has not taken up the opportunity afforded him by procedural orders made by a Registrar to amend his application or provide evidence, such as a transcript.
The Tribunal’s description of the applicant’s evidence at the hearing set out at [41] to [58] of the Tribunal’s decision gives no clue of any interpretation problem. Indeed, it suggests a normal flow of question and answer. The Tribunal hearing record reproduced at page 127 of the court book states that the interpreter was from Tamil Nadu State in India.
In his submissions in reply the applicant told me that he had analysed the Tribunal decision and found that the issues discussed by the Tribunal were not consistent with what he had said at the hearing.
Again, there is no evidence in support of that assertion made from the bar table. I conclude that the bare assertions made by the applicant at this relatively late stage do not establish any arguable case of jurisdictional error by the Tribunal.
I agree with the Minister’s submissions concerning the grounds of review advanced.
Ground 1
The first ground contends that the Tribunal failed to apply the correct test in relation to complementary protection and “construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants (sic) upon his return to Malaysia”. This is a template ground which has been raised in numerous other matters: see for example BUP16 & Ors v Minister for Immigration & Anor; [20] ACB17 v Minister for Immigration & Anor;[21] BHL16 v Minister for Immigration & Anor[22] and SZSHY & Ors v Minister for Immigration & Anor.[23]
[20] [2017] FCCA 1782
[21] [2017] FCCA 1880
[22] [2017] FCCA 1958
[23] [2018] FCCA 702
The Tribunal set out and applied the correct test and made findings that were open to it on the evidence before it.[24]
[24] CB 138: [7], CB 148–149: [103]–[111]
Ground 2
The second ground contends that the Tribunal failed to consider an integer of a claim, being whether “a converted Christian…in Malaysia was at risk of harm from Muslim fanatics and Sharia Court, and not able to access effective state protection”.
The “integer” now articulated by the applicant was not made, nor did it squarely arise on the material. Rather, the applicant appears to be retrospectively recasting his claims.[25] While the applicant did claim (and the Tribunal accepted) that he had converted from Christianity to Islam, the claim he raised was that he feared harm from religious police because his father-in-law had told them he was proselytising. The Tribunal considered this claim and made findings in relation to it.[26] The integer now advanced is conceptually distinct from the claim originally advanced by the applicant such that it did not “arise tolerably clearly from the material itself”.[27] Further, the Tribunal was not required to “excavate any possible claim or to sift carefully through a morass of material in order to determine whether such a claim has been made”.[28]
[25] Re Minister for Immigration; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [31]; NABE v Minister for Immigration (No.
[26] CB 142: [35], CB 144: [56]–[57], CB 145: [72]–[75], CB 146: [93]
[27] NAVK v Minister for Immigration [2005] FCAFC 124 at [15]
[28] SZUOK v Minister for Immigration & Anor [2015] FCCA 1429 at [20]
Ground 3
The third ground contends that the Tribunal had no jurisdiction to make its decision because its “reasonable satisfaction” was not arrived at in accordance with the provisions of the Migration Act 1958 (Cth) (Migration Act). This ground is without substance and does not raise an arguable jurisdictional error. Further, this ground is also a template ground.[29]
[29] See for example BLH16; ACB17
The Tribunal was required by the Migration Act to refuse to grant the applicant's protection visa application because it was not satisfied that the applicant met the prescribed criteria for the grant of the visa.[30] The Tribunal's conclusions that the prescribed criteria, s.36(2)(a) and (aa), were not met were open to it on the material before it and for the reasons it gave. The Tribunal plainly had jurisdiction to review the delegate's decision (as it was a Part 7-reviewable decision[31]) and reached a decision that was open to it in law.
[30] Subsection 65(1) and s.415 of the Migration Act
[31] Section 411 of the Migration Act
Ground 4
Ground 4 complains that the Tribunal failed to investigate the applicant's claim and “specifically the grounds of persecution in Malaysia”. The Tribunal made findings that were open to it for the reasons it gave, noting the following points:
a)it is for the applicant, not the Tribunal, to supply evidence in as much detail as necessary to satisfy the Tribunal that the relevant Convention criterion is satisfied;[32]
b)the Tribunal does not require rebutting evidence before rejecting the applicant's factual assertions;[33] and
c)the Tribunal is not under any general duty to make further inquiries,[34] nor is this a case where the Tribunal failed to make an “obvious inquiry about a critical fact, the existence of which is easily ascertained”.[35]
[32] Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at 576 [187]
[33] Selvadurai v Minister for Immigration (1994) 34 ALD 347; [1994] FCA 1105 at [7]
[34] Minister for Immigration v SGLB (2004) 207 ALR 12; [2004] HCA 32 at [43]
[35] Minister for Immigration v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25]
Conclusion
I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.
In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed. The applicant enquired about his options in the light of the dismissal of his application. He did not oppose an order for costs.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 29 May 2018
2) (2004) 144 FCR 1 at [62]; NBKT v Minister for Immigration [2006] FCAFC 195 at [73] and S395/2002 v Minister for Immigration (2003) 216 CLR 473; [2003] HCA 71 at [1]
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