CRU16 v Minister for Immigration
[2018] FCCA 2090
•30 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRU16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2090 |
| Catchwords: MIGRATION – Protection visa – applicants claimed to fear harm in Malaysia by reason of their Chinese ethnicity – applicants claimed to be specifically targeted for racial discrimination and hatred because of their Chinese ethnicity – tribunal undertaking detailed analysis of applicants’ claims – tribunal’s duty to review is inquisitorial – tribunal entitled to question applicants – no evidence adduced that questioning was unfair – tribunal entitled to give commensurate weight to country information in reaching its conclusions – tribunal’s finding that applicants did not satisfy the requirements ss 36(2)(a) and 36(2)(aa) of the Migration Act open to it – applicants did not advance claims of jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958, ss 36(2)(a), 36(2)(aa), 36(3), 91R(1). |
| Cases cited: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 Craig v The State of South Australia (1995) 184 CLR 163 Kirk & Anor v Industrial Court of New South Wales & Anor (2010) 239 CLR 531 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Nagalingam v Minister for Immigration, Local Government & Ethnic Affairs (1992) 38 FCR 191 |
| First Applicant: | CRU16 |
| Second Applicant | CRV16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 426 of 2016 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 30 July 2018 |
| Date of Last Submission: | 30 July 2018 |
| Delivered at: | Perth |
| Delivered on: | 30 July 2018 |
REPRESENTATION
| First Applicant: | In person |
| Solicitors for the First Applicant: | None |
| Second Applicant: | In person |
| Solicitors for the Second Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Sparke Helmore |
ORDERS
The application filed 21 September 2016 is dismissed.
The applicants pay the first respondent’s costs in the fixed sum of $5 000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 426 of 2016
| CRU16 |
First Applicant
And
| CRV16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
On 21 September 2016, the applicants commenced a proceeding in this court seeking orders for the issue of constitutional writs in relation to a decision of the Administrative Appeals Tribunal made on 25 August 2016. In that decision, the tribunal decided to affirm a decision of the minister’s delegate not to grant the applicants protection visas.
By orders of a registrar of this court made on 26 October 2016, the hearing of this case was fixed for 30 July 2018. Those orders required the applicants to file and serve any amended application and further affidavits on which they wished to rely by 21 December 2016 and their written submissions 42 days prior to 30 July 2018. The applicants did not file any amended application, any further affidavits or any written submissions, whether by the date ordered or at all.
In their application to this court, the applicants relied on four grounds of application. They were as follows, recorded verbatim (with errors in the original) –
1.AAT has been asking me the same question over and over again of why we can’t go back to our country until the end of the interview. AAT repeated the same questions even I answered the question, it is not fair trying to push me like this.
2.AAT has been saying that Malaysia is a big country so the gang members won’t find us. But this is just assumption what if they find us and killed us.
3.We will not risk our lives based on the AAT’s assumption that Malaysia is a big country so that the gang members won’t be able to find us.
4.We hope the court could give us a fair judgment instead of believing the AAT’s assumptions.
The applicants indicated on their initiating application that they required an interpreter. A Mandarin-speaking interpreter was duly arranged by the court to be present on 30 July 2018 at the hearing of this case.
The question in this case was whether the applicants demonstrated that the tribunal fell into jurisdictional error. Ordinarily, although by no means exhaustively, jurisdictional error is demonstrated when an applicant successfully persuades a court that on the hearing of a merits review, the tribunal –
a)identified a wrong issue;
b)asked itself a wrong question;
c)ignored relevant material;
d)relied on irrelevant material; or
e)in some instances, made an erroneous finding or reached a mistaken conclusion.
Cases of immense veneration have so held, including Craig v The State of South Australia[1] and Minister for Immigration and Multicultural Affairs v Yusuf.[2] The above catalogue is an illustration only of jurisdictional error. As the High Court observed in Kirk & Anor v Industrial Court of New South Wales & Anor,[3] it is neither necessary nor possible to record a rigid taxonomy of the lengths and breadths of jurisdictional error.
[1] (1995) 184 CLR 163
[2] (2001) 206 CLR 323
[3] (2010) 239 CLR 531
In addressing whether the tribunal fell into jurisdictional error in this case, I have carefully considered the evidence, paying particular regard to the fact that the applicants have at all relevant times been unrepresented, and that the English language is not their first language. I fully acknowledge that the migration jurisdiction in this court is complex, particularly to an unrepresented applicant. To that end, I have approached this case giving the applicants the benefit of any technical non-compliance with orders for the filing of material.
Synopsis
For the reasons that follow, in my judgment the applicants failed to demonstrate the existence of jurisdictional error in this case, with the consequence that this application must be dismissed, and the applicants must pay the minister’s costs.
Relevant factual history.
On 9 April 2014, the first applicant arrived in Australia as the holder of a visitor (subclass 601) visa. At all relevant times, she was a citizen of Malaysia. Her partner was the second applicant. On 16 August 2014, both applicants applied for protection. On her application for protection, the first applicant set out in hand her reasons for claiming protection. Those reasons may be paraphrased in the following manner –
a)she had a fruit shop in Perak Ipoh in Malaysia;
b)as she was Chinese, local Malays came to her shop and attempted to blackmail her;
c)the local Malays began hitting her and looting her shop; and
d)she suffered racial discrimination, as well as violence, such that she had no choice but to escape Malaysia.
Those matters were recorded in the answer she gave to question 44 on her protection visa application. In answer to question 45, the first applicant gave details of the harm she experienced in Malaysia. She said the following, relevantly paraphrased –
a)Malays came to her shop with knives;
b)her husband was injured on the arms and back when attempting to protect her; and
c)Malays are very cruel, and they always threatened her and her husband to give them money.
In answer to question 46, the first applicant gave details of her fear of what may happen to her if she went back to Malaysia. Relevantly paraphrased, she said the following –
a)racial discrimination and hatred against Chinese is everywhere in Malaysia;
b)if she went back, the Malays will still target her;
c)before she escaped, the Malays came to her fruit shop to blackmail her;
d)even after she came to Australia, her friend told her that Malays were still looking for her and her husband; and
e)if she went back, she and her husband will suffer great harm.
In answer to question 47 about who she thought may harm her if she went back to Malaysia, the first applicant wrote “the Malay gang members”.
In answer to question 48, the first applicant gave details of why she thought the harm she described would occur if she was sent back to Malaysia. Relevantly paraphrased, the first applicant stated as follows –
a)the local Malays hate the Chinese;
b)the Chinese have to work hard to make money to survive in Malaysia and, if she and her husband do business, the Malays blackmail the first applicant and her husband;
c)she and her husband were harmed before and they will be harmed again if they went back to Malaysia; and
d)the Malay gangs are already looking for the applicants, the gangs will not let them go, the gangs will go after the applicants and the applicants cannot be safe in Malaysia.
In answer to question 49, the first applicant gave details of whether she thought the authorities in Malaysia would protect her if she went back. With errors in the original, her response may be relevantly paraphrased as follows –
a)she tried to report to the police;
b)she showed the police CCTV footage;
c)after a while, the police arrested the Malays but released them as police always protect the Malays;
d)the police did not protect the applicants and asked for money by way of protection instead; and
e)the police are Malays, they are corrupted, the government are corrupted and the applicants cannot obtain protection.
By letter dated 22 February 2016, sent by registered post, the first applicant was notified that her protection visa application was refused by the minister’s delegate. The delegate provided 19 pages of reasons in support of his decision to refuse the application for protection.
On 16 March 2016 the first applicant applied electronically for a merits review before the tribunal.
On 21 July 2016 the tribunal provided the first and second applicants with an invitation to attend a hearing before the tribunal to give evidence and to present arguments. The hearing was scheduled for 10am on 17 August 2016. On 10 August 2016 and again on 16 August 2016 the tribunal gave the first applicant SMS reminder notifications of the tribunal hearing. The hearing took place on 17 August 2016, as arranged. Bot applicants appeared, assisted by a Mandarin-speaking interpreter. The hearing commenced at 10:10am and concluded a little over two hours later at 12:15pm.
On 25 August 2016 the tribunal decided to affirm the delegate’s decision not to grant the applicants the protection visas that they sought. It is necessary to go to the detail of the tribunal’s reasons.
Between paragraphs 4 and 8 of its reasons, the tribunal paraphrased the elements of s 36 of the Migration Act (“Act”). In my view, no exception could be taken to the tribunal’s distillation of the refugee criterion of s 36(2)(a) or of the complementary protection criterion of s 36(2)(aa) of the Act.
Between paragraphs 9 and 11 of its reasons the tribunal recorded the applicants’ citizenship, their dates and places of birth and that they were not excluded by s 36(3) of the Act from Australia’s protection obligations.
Between paragraphs 12 and 14 of its reasons the tribunal recorded certain details of the claims assessment process. Among those matters recorded were the following –
a)applicants for protection frequently suffer stress and they encounter difficulty in giving their evidence and that asylum seekers should be given the benefit of the doubt where those persons are generally credible, but they may be unable to substantiate all their claims; and
b)applicants must satisfy the tribunal that all the statutory elements of their claims are met and that the decision maker is not required to make out the applicant’s case nor is the tribunal required to accept uncritically all and any allegation by the applicant, citing the High Court’s decision in Minister for Immigration and Ethnic Affairs v GuoWei Rong[4] as well as the Federal Court’s decision in Prasad v Minister for Immigration and Ethnic Affairs[5] and in Nagalingam v Minister for Immigration, Local Government & Ethnic Affairs.[6]
[4] (1997) 191 CLR 559
[5] (1985) 6 FCR 155
[6] (1992) 38 FCR 191
The tribunal said it was prepared to accept the second applicant was a member of the first applicant’s family, even though neither applicant could recall the date of their marriage.
Between paragraphs 21 and 23 of the tribunal’s reasons the tribunal recorded the applicants’ claims that they had suffered discrimination by reason of their Chinese ethnicity and that they had experienced persecution on the basis of their race as Chinese in Malaysia. It seemed to me that the tribunal correctly encapsulated the applicants’ claims arising from their ethnicity as Chinese in Malaysia.
In paragraphs 19, 24 and 27 of its reasons the tribunal confirmed that both applicants had received about 12 years of education in Malaysia, that they were able to work, that they had operated a business when they lived in Malaysia, that they had worked in Australia and that they could work in Malaysia upon their return as they possessed skills and experience to assist them in any workplace.
In paragraph 30 of its reasons the tribunal found that independent country information revealed that corruption in Malaysia was endemic and that the applicants may have paid bribes, even to police. However, the tribunal found that such behaviour was directed to the community at large and not specifically to the applicants. The tribunal found that requests for bribes by public officials and police was not systematic and discriminatory conduct directed to the applicants, but rather was a way of life affecting all members of the community.
In paragraph 31 of its reasons the tribunal found that by reason of the operation of the Bumiputera policy that favours ethnic Malays, discrimination exists in Malaysia against other ethnic groups including Chinese. But the tribunal found that such discrimination did not constitute serious harm for the purposes of s 91R(1) of the Act. Further, the tribunal stated that while the applicants may encounter difficulty in finding employment on their return the tribunal did not accept that the applicants would be denied employment, accommodation, access to government services or benefits because of their Chinese ethnicity or for any other convention reason.
In paragraph 32 of its reasons the tribunal stated that the applicants did not face a real chance of serious harm by reason of their Chinese race in Malaysia if they returned to Malaysia now or in the reasonably foreseeable future.
Between paragraphs 33 and 39 of its reasons the tribunal addressed the evidence that focused on the applicants’ claims to fear harm from Malay gangsters who attempted to extort protection money from them. The tribunal found in paragraph 40 its reasons that the applicants were subject to extortion by Malay gangsters who operated near their stalls. However, the tribunal considered whether police refused to act and found that the arrest of some Malay men then their release did not indicate that the police refused to act.
In paragraph 43 of its reasons the tribunal found that country information revealed that protection against persecution could be provided to the applicants by Malaysia and that Malaysia was willing and able to offer such protection, such protection consisting of appropriate criminal law, a reasonably effective police force and an impartial judicial system.
In paragraph 44 of the tribunal’s reasons it found that it was not satisfied that –
a)police would fail to act by giving protection from Malay gangsters if requested to do so;
b)effective state protection was not available;
c)a real chance of serious harm from gang members existed; and
d)the applicants would be unable to avail themselves of effective state protection in Malaysia for any reason.
In paragraph 45 of its reasons the tribunal found that it was not satisfied that the applicants faced a real chance of serious harm in Malaysia in the reasonably foreseeable future.
The tribunal found that the applicants did not satisfy the elements of s 36(2)(a) of the Act. The tribunal also found that the applicants did not satisfy the complementary protection elements of s 36(2)(aa) of the Act. The tribunal decided to affirm the delegate’s decision.
In this court
In the passages above I have already set out the grounds on which the applicants relied in commencing this proceeding. It is next necessary to address each ground on which the applicants rely.
First ground
In essence, under this ground the applicants complained that they were repeatedly asked why they could not go back to their country. The applicants asserted that it was not fair that they were pushed like that (their words).
Several things must be said about the applicants’ first ground. As the High Court held in Minister for Immigration and Citizenship v SZGUR & Anor,[7] the tribunal’s duty is a duty to review that is inquisitorial. The tribunal is entitled to question an applicant. It is entitled to explore the veracity of the answers an applicant provides. It is entitled to ask the same question in different forms with a view to exploring the truth of the answers. The question of why the applicants were unable to return to Malaysia was a critical question in the tribunal’s assessment of the applicant’s protection claims. The question called for detailed examination and searching answers.
[7] (2011) 241 CLR 594
Next, it fell to the applicant to show that the tribunal’s method of questioning was unfair, as alleged. Ordinarily, that is done by producing the transcript of the tribunal hearing, at which time a word-for-word examination of the questions asked can be undertaken. No such evidence was adduced in this case. To the extent that the applicants were asserting that the tribunal exhibited some form of bias in its conduct of the hearing, such an assertion needed to be firmly and distinctly made and firmly proven as the High Court held in Minister for Immigration and Multicultural Affairs v Jia Legeng.[8] To my mind, the tribunal gave proper, genuine and realistic consideration to the merits of the applicants’ case, as the High Court held the tribunal must do in Minister for Immigration and Citizenship v SZJSS.[9] I also took the view that the tribunal gave active intellectual consideration to the applicants’ claims, as the High Court held the tribunal must do in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs.[10] I also took the view that, upon a reading of the tribunal’s reasons, those reasons revealed that the tribunal adopted an approach indicating that its mind was open to persuasion consonant with the observations of the High Court in Jia Legeng. Put differently, it did not seem to me that there was a basis to conclude that a fair-minded observer, properly informed about the nature of this case, about the matters in issue and about the conduct of the tribunal might reasonably apprehend that the tribunal may not have brought an impartial mind to the determination of this application. In casting the issue in those terms I have relied on the observations of the High Court in Re Refugee Review Tribunal; Ex parteH.[11]
[8] (2001) 205 CLR 507
[9] (2010) 243 CLR 164
[10] (2003) 216 CLR 473
[11] [2001] HCA 28
Further, as the High Court held in GuoWei Rong, the tribunal is not obliged to uncritically accept an applicant’s claims. In my view, testing an applicant’s claims by questioning – even by detailed questioning in circumstances where an answer may well have already been given – does not contravene such a concept.
To my way of thinking, the applicants failed to make good their contentions in respect of the first ground.
Second and third grounds
In respect of both grounds, each had at its core the notion that the tribunal made a finding to the effect that Malaysia is a big country so the gang members will not find the applicants. A careful reading of the tribunal’s reasons, especially those between paragraphs 33 and 58 reveals that the tribunal did not make the findings alleged by the applicants in grounds two and three. As to the country information derived by the tribunal, in paragraphs 38, 40, 43 and 45 of its reasons the tribunal set out the gravamen of it. There was no reference in those paragraphs to the size of Malaysia being large or that gang members would find the applicants. So far as the use of country information was concerned, it is well established that the tribunal can give country information such weight as the tribunal thinks fit, as was held by the Full Court in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs.[12]
[12] [2004] FCAFC 10
To the extent that ground two contained a proposition expressed as a question, “what if the gang members find us and kill us”, it seemed to me that such a proposition was an invitation for me to engage in a merits review, a concept forbidden in this field of administrative and constitutional law as has been deeply entrenched by such cases as Australian Broadcasting Tribunal v Bond,[13] Attorney-General (NSW) v Quin,[14] Chan Yee Kin v Minister for Immigration and Ethnic Affairs[15] and Minister for Immigration and Ethnic Affairs v Wu Shan Liang[16] to name but a few.
[13] (1990) 170 CLR 321
[14] (1990) 170 CLR 1
[15] (1989) 169 CLR 379
[16] (1996) 185 CLR 259
Grounds two and three were devoid of merit.
Fourth ground
In this ground, the applicants hoped that I would give them a fair judgment rather than believing the tribunal’s assumptions. That is not a proper ground of review and it will be dismissed.
Today I asked the first applicant to tell me in her own words what she said the tribunal did wrong. She mentioned how bribery is prevalent in Malaysia. She otherwise did not advance her claim to the existence of jurisdictional error. I also invited the second applicant to tell me what he said the tribunal did wrong. He said he faced danger if he were to be sent back to Malaysia. That was addressed by the tribunal, as it happens adversely to the applicants.
A final word about this ex tempore judgment
In this case I delivered ex tempore reasons. I did so having read and considered the observations on point by the Full Court in BZD17 v Minister for Immigration and Border Protection[17] and the observations of Bromwich J in Symons v White (Sydney Catholic Schools).[18] It seemed to me that this case was a clear case in which no jurisdictional error was demonstrated and that it was undesirable to delay in providing the parties with my decision in this case. That said, including the time taken in the hearing of this case, I have spent over seven hours analysing material filed in this case and in considering the arguments advanced by both parties. Under no circumstances could either party say that this case has not been the subject of careful consideration, notwithstanding that these reasons were given ex tempore.
[17] [2018] FCAFC 94
[18] [2018] FCA 949
Conclusion
The application filed 21 September 2016 is dismissed. I order the applicants to pay the minister’s costs in the fixed sum of $5 000.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 1 August 2018
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