CSP16 v Minister for Immigration
[2018] FCCA 3746
•17 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CSP16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3746 |
| Catchwords: MIGRATION – Judicial review application – Protection Visa – extension of time – whether application to the Court is competent under s.477 – whether Tribunal breached ss.424A and 424AA – whether Tribunal breached ss.353 and 420 – whether Tribunal failed to take into account a relevant consideration – whether Tribunal acted unreasonably – application to extend time refused. |
| Legislation: Migration Act 1958 (Cth), ss.353, 420, 425, 424A, 424AA, 476, 477 Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.3, 5, and Sch. 1 |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442; (2013) 139 ALD 252 |
| Applicant: | CSP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2578 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 13 June 2018 |
| Date of Last Submission: | 11 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 17 December 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Mr J McGovern of Clayton Utz |
ORDERS
The application made on 23 September 2016 pursuant to s.477(2) of the Migration Act1958 (Cth) to extend time is refused.
The applicant pay the respondents’ costs set in the amount of $6900.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2578 of 2016
| CSP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) on 23 September 2016, seeking an extension of time within which to make a competent application to the Court for review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 12 August 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
Section 477(1) of the Act requires that any such application be made within 35 days of the date of the relevant Tribunal decision. In the current case, the application to the Court was lodged on 23 September 2016. This is outside the specified time limit by 6 days. The application is therefore not competent.
Section 477(2) of the Act provides for an extension of time within which to make a competent application to the Court, if the applicant makes an application for an extension of time in writing, and the Court considers that it is in the interests of the administration of justice to extend time. As mentioned above, the applicant has made such an application in writing on 23 September 2016.
Before the Court
The parties first appeared before a Registrar of the Court on 19 January 2017. Orders we made, by consent, including, amongst other things, an order that the applicant file an amended [proposed substantive] application and any evidence by way of affidavit by 2 March 2017, and giving the parties the opportunity to file written submissions. The applicant did not file any documents pursuant to these orders. The Minister filed written submissions on 6 June 2018 (“the Minister’s first written submissions”).
The parties next appeared before a Registrar of the Court on 4 May 2017. An order setting down the hearing of the extension of time was made on that occasion.
At the hearing of the application for an extension of time (13 June 2018), the applicant appeared in person. He confirmed that he did not require the assistance of an interpreter. The Minister was represented by a solicitor.
The applicant sought to hand up written submissions (which had not been filed or provided to the Minister), which he said he had written himself, with the assistance of a lawyer (“the applicant’s first written submissions”). The applicant indicated that he had a number of matters to raise before the Court but was not prepared to do so on that day. He did not explain why he was unable to prepare for the hearing in the thirteen months available to him since the hearing date was set.
Nonetheless, I made orders giving the applicant further time to file any evidence by way of affidavit and any written submissions, which included any amendments to the proposed substantive application. The Minister was given the opportunity to file any evidence and written submissions in reply. The matter was adjourned until 11 July 2018.
The applicant filed written submissions (“the applicant’s second written submissions”) and an affidavit on 22 June 2018. He did not file any amended application, however the written submissions contained what the applicant described before the Court as “six grounds to review on the case” (see further below). The Minister filed written submissions on 29 June 2018 (“the Minister’s second written submissions”).
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The affidavit of the applicant made on 23 September 2016 filed with the application to the Court.
c)The affidavit of the applicant made on 22 June 2018.
The applicant’s affidavit of 22 June 2018 consists of a number of headings and “annexures”. These may be understood as follows.
One, a document that purports to be a transcript or an extract of a transcript of the Tribunal’s hearing with the applicant. There is nothing in the affidavit, or on the face of the document, to explain the provenance of the “transcript”. Nor does the transcript identify the “speakers” beyond a numerical attribution.
Before the Court, the applicant stated that he used a “certified translator” to prepare the document. It must be said that even if that were the case the document lacks many of the features of a transcript provided by a qualified transcriptionist as often seen in matters before this Court.
The applicant explained that he wanted to rely on the “transcript” in relation to the “no body” argument he wished to raise before the Court (see further below).
In any event, in the interests of giving the applicant every opportunity to argue his case, the transcript was read into evidence.
Two, a bundle of documents which appear to be various communications between the applicant and a firm of solicitors concerning a “Professional Service Agreement”.
I understood from the applicant that he sought to rely on these documents in relation to the question of “delay” in making his application to the Court. This also was read into evidence (see further below).
Three, a bundle of documents being copies of media articles and reports concerning Malaysia. The applicant explained that he wished to rely on these documents to show he was unable to safely return to Malaysia.
It was clear that the applicant’s reliance on these documents was for the purpose of seeking impermissible merits review. In any event, all of the documents post-dated the Tribunal’s decision. They were not read into evidence.
Four, a copy of the Tribunal’s “Guidelines on the Assessment of Credibility”. The purpose of seeking to rely on this document was not made clear. In any event, it was read into evidence.
The application for an extension of time
The issue for the Court now is whether it is in the interests of the administration of justice to extend time. The factors to be considered in relation to the question of the extension of time are not exhaustive. However, there are a large number of authorities which provide guidance to this Court, as to how to approach the consideration contemplated by s.477(2) of the Act (SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 236 FCR 442; (2013) 139 ALD 252; SZUWX v Minister for Immigration and Border Protection [2016] FCAFC 77; (2016) 238 FCR 456, MZZLD v Minister for Immigration and Border Protection [2016] FCA 1201; (2016) 154 ALD 316, MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478, Ahmed v Minister for Immigration and Border Protection [2016] FCA 751 and SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 see also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at [18] – [23]).
In the current case, the factors arising from the circumstances presented in considering the exercise of the discretion appear to be the length of the delay, whether any satisfactory explanation or reasonable excuse has been given for the delay, whether the Minister would suffer any prejudice if time were extended, and primarily, whether the proposed substantive application for judicial review is sufficiently, or reasonably arguable or has reasonable prospects of success, or has such merit to justify the extension of time to allow the matter to proceed to a final hearing in the interests of the administration of justice. In deciding whether to grant the application for an extension of time, the grounds of the proposed substantive application should have such prospects of success so as not to render the extension of time an exercise in futility.
The applicant’s grounds supporting the application to extend time are in the following terms:
“1. Seeking for legal advise.
2. Lawyer require more time to view in the case.”
[Errors in original]
The length of the delay in the current case is 6 days after the date of the expiry of the 35 day period referred to in s.477(1) of the Act. Although not inordinately long, the period of delay is still of such length as to require, in the weighing of the relevant factors in the exercise of the Court’s discretion, some reasonable or satisfactory explanation.
The grounds of the application for an extension of time provide a bare assertion that the “lawyer” required “more time to view the case”. The applicant’s affidavit filed with the application in these proceedings provides no explanation.
Before the Court, the applicant submitted that he knew there was a “time-limit”, he approached a law firm for assistance, but on the “last day” they refused to help unless he paid them “more money”. Even if the applicant had given this in evidence, this still does not provide a satisfactory explanation for the delay given that he had also stated that he knew there was a time limit.
Nor does the applicant’s affidavit evidence (that is the annexure) help him to make a satisfactory explanation. At their highest, the documents, relating to the lawyers, merely show that the applicant had “engaged” lawyers in relation to this matter.
The documents say nothing about why the lawyers were unable to assist the applicant in making his application within time. What remains is that the applicant, with legal assistance, failed to make his application within time. This is not a satisfactory explanation for the delay.
In any event, what is conclusive in the decision not to exercise discretion in the applicant’s favour is the complete lack of merit in the grounds of the proposed substantive application.
Background to the Applicant’s Proposed Grounds and Complaints
The applicant is a citizen of Malaysia (CB 2). He is of Chinese ethnicity and Buddhist religion (CB 4). He first came to Australia in October 2010 as the holder of a subclass 976 visa (a type of visitor visa, granted electronically). He departed Australia on 12 October 2013 and then returned on 17 October 2013 as the holder of a subclass 457 visa ([1] at CB 192). The applicant applied for a protection visa which was received by the Minister’s department on 5 May 2015 (CB 1 to CB 81).
In summary, the applicant claimed to fear harm on the basis of his opinions on the Islamic religion. He had publically voiced his opinions on the internet since 2007, and set up a web page criticising the “Hudud law”, after it was passed in 2015. He claimed to have received “threats” to his life as a result of publishing this web page, and that the Malaysian police had threatened to arrest him.
He was invited to, and attended, and interview with the delegate on 20 January 2016 (CB 109 to CB 112 and CB 117.5). The delegate refused the application on 2 February 2016 (CB 113 to CB 127). The applicant applied for review to the Tribunal on 16 February 2016 (CB 128 to CB 134). The applicant was invited to, and attended, two hearings before the Tribunal on 6 June 2016 and 9 August 2016 (CB 139 to CB 140, CB 182 to CB 183 and [4] at CB 192).
The Tribunal affirmed the delegate’s decision on 12 August 2016 (CB 189 to CB 221). The applicant was notified of the Tribunal’s decision in a letter sent by email on 15 August 2016 (attaching the Tribunal’s decision record) (CB 189).
The Tribunal’s consideration of the applicant’s claims and evidence is comprehensive. In essence, the Tribunal member found that he had embellished his claims and was willing to provide false information in the hope of obtaining a protection visa. The Tribunal was also concerned about significant changes over time in the applicant’s various accounts of events in Malaysia, and inconsistencies in his evidence.
However, these were not the only reasons the Tribunal relied on to affirm the delegate’s decision. The Tribunal also specifically considered whether the applicant would face harm as a non-Muslim and Freemason in a predominantly Muslim country.
The Tribunal also specifically considered whether he would face harm because he was a non-Muslim who opposed Sharia law. In that context the Tribunal found, for the reasons given, that it did not accept “if he were to return to Malaysia, that the applicant would be motivated to regularly express his views about sharia law and Islam online or that he would be motivated to maintain a blog or a Facebook page about these subjects”. ([97] at CB 216).
The Minister’s written submissions provide a detailed summary of the Tribunal’s decision. I note as background the Minister’s submissions at [11] to [15]:
“11. The Tribunal ultimately found that the applicant was not a person to whom Australia owed protection obligations under s 36(2)(a) or s 36(20(aa) of the Act. The Tribunal's findings in this respect rested largely on its adverse credibility assessment of the applicant. The Tribunal set out its reasons for this credibility finding generally at DR [72] and in further detail at DR [73]-[83].
12. In addition to its findings outlined in DR [72], the Tribunal also specifically did not accept that the medical evidence provided by the applicant established that he was assaulted in the past because of his online activities. In short, the Tribunal concluded that "the applicant [was] not telling the truth about the reasons he left Malaysia, or why he does not want to return to Malaysia now".
13. After making these adverse findings, the Tribunal considered whether, having regard to what it did accept of the applicant's claims, there was a real chance that he would face significant harm if returned to Malaysia. The Tribunal concluded that there was not such a chance or risk.
14. Finally, the Tribunal considered the applicant's evidence in relation to his purported black listing on a Malaysian government agency website. The Tribunal concluded that the applicant's evidence in this respect was not satisfactory, nor conclusive, pointing out that the supposed black list was only in relation to the Roads and Transport Department and it did not accept that there was a real chance the applicant would face significant or serious harm because his name appeared on this alleged black list.
15. For the reasons outlined above, the Tribunal also concluded that the applicant did not meet the criteria for a protection visa under the complementary protection regime in s 36(2)(aa) of the Act.” (References omitted)
[Errors in original]
The Proposed Substantive Application
The sole ground of the proposed substantive application is in the following terms:
“Review the Tribunal decision”.
Without particularity the ground is meaningless. However, when regard is had to the statement attached to the applicant’s originating affidavit filed with the application to the Court, it is clear that the review the applicant seeks is a review of the merits of the Tribunal’s decision. The statement takes issue with factual findings made by the Tribunal.
This Court cannot engage in merits review. That is not permitted. The applicant’s proposed ground therefore does not call for an extension of time, it is a powerful argument in itself not to extend time.
The applicant was invited to a hearing before the Tribunal pursuant to s.425. The Tribunal’s account of what occurred reveals that the applicant was given a meaningful opportunity to give his evidence and make the arguments as to why he should be given a protection visa. The applicant’s transcript of the hearing provides no basis to contradict the Tribunal’s account.
There is nothing in the evidence to indicate that the Tribunal failed to discuss any issue in the review. The Tribunal’s account of the hearing, and the transcript, reveals that the Tribunal was focused on engaging with the applicant’s evidence and claims. The Tribunal clearly raised its concerns with his evidence.
The applicant’s statement seeks to take issue with the Tribunal’s various findings, including as to his credibility. The evidence reveals that the Tribunal’s findings were all reasonably open and were probative of the material before it.
The Tribunal gave a reasoned and intelligible explanation as to why, in part, the applicant exaggerated and embellished his fears. As to the weight the Tribunal gave to the evidence, this was a matter for the Tribunal within the proper exercise of its jurisdiction.
The Tribunal’s decision record reveals a measured, detailed and comprehensive examination of the evidence.
I note in particular that the Tribunal dealt properly with the applicant’s claims as to what would occur in Malaysia if he were to return given his views about Sharia law.
The Tribunal did not make any finding that the applicant could avoid harm by acting discreetly (S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473; 78 ALJR 180; 203 ALR 112). Rather, the Tribunal made a specific finding that it did not accept: “…that the applicant would be motivated to regularly express his views about Sharia law and Islam online or that he would be motivated to maintain a blog or a Facebook page about those subjects.” ([97] at CB 216).
The Tribunal gave intelligible reasons for this probative of other evidence before it, including the applicant’s own evidence.
Further Complaints Made by the Applicant
As set out above, at the hearing of this matter the applicant sought to file in Court what he said were his written submissions in support of his application.
Written submissions had not been previously served on the Minister. However, they were essentially in “note” form (for example the references to “sticker two” on the first page). For a large part, they were not amenable to discerning jurisdictional error on the part of the Tribunal.
Merely making allegations that the Tribunal failed to take into account certain claims, which the Tribunal’s decision record reveals that it did, does not assist the applicant. Further, it is clear that the applicant’s assertion that the Tribunal failed to “consider” his claims, was really a complaint that the Tribunal did not “accept” these claims.
In any event, given that the applicant was not legally represented, as set out above, I adjourned the hearing and made orders giving the applicant the opportunity to file written submissions which hopefully would provide a more meaningful expression of the applicant’s claims that the Tribunal had fallen into jurisdictional error. It is to those submissions to which I have referred below. The first written submissions were “subsumed” in the second written submissions.
I agree with the Minister that the applicant’s submissions are long and discursive. It must be said that they appear to be a disjointed, subjective narrative by the applicant. The references to “a no body” at page 2 speaks for itself. In any event, at best for the applicant, they may be understood as seeking to raise the following.
One, an explanation for the delay. The written submissions do not add to the applicant’s explanation as set out above.
Two, an “introduction” consisting of a series of assertions of error. These can be addressed in the consideration of the “grounds”.
Three, a number of “grounds” the Minister has in my view fairly described as follows:
“(a) The Tribunal erred in its treatment of country information before it. (Ground One)
(b) The Tribunal erred in making adverse credibility findings against the applicant. (Ground Two)
(c) The Tribunal's conduct of the review was in breach of ss 424A, 424AA, and 425 of the Act and demonstrated that the Tribunal member was biased against the applicant. (Ground Three)
(d) The Tribunal took into account an irrelevant consideration when assessing whether there was a real chance the applicant would face serious harm on return to Malaysia. (Ground Four)
(e) The Tribunal's conclusions regarding the applicant's appearance on a ‘blacklist’ and the weight afforded to “a consideration” were unreasonable. (Ground Five)
(f) The Tribunal misunderstood or misapplied the real chance test with respect to the applicant's claims for protection under s 36(2)(a) ands 36(2)(aa) of the Act. (Ground Six)”
(at [6] of the Minister’s second set of submissions)
Four, the applicant makes references to the delegate’s decision. To the extent that this may be some attempt to seek review of the delegate’s decision, this Court has no jurisdiction to do so (s.476 of the Act). The applicant’s “grounds” that appear to seek such review therefore lack merit.
Five, the applicant’s written submissions purport to set out, what on its face, appears to be the applicant’s account of the hearing before the Tribunal.
In the circumstances, it would be unfair and prejudicial to the Minister to have regard to these parts of the written submissions. Even in submission form, the provenance of this material remains unexplained. Nonetheless, I have had some regard to that part of the submissions which provide a transcript of the Tribunal hearing, as it is set out in the “annexure” to the applicant’s affidavit. In particular for the purpose that it may give some substance, or meaning, to the applicant’s complaints as expressed generally throughout the written submissions.
While the Minister has made, what in the circumstances can be described as, a valiant attempt to discern relevant meaning (that is, to a proper assertion of jurisdictional error) from the applicant’s narrative by grouping the “complaints” into six grounds, it is convenient to deal with each of the applicant’s complaints as follows.
Tribunal did not review DFAT report
The applicant complains that the Tribunal did not: “…review DFAT in detail, had miss up a few important points”. This can, as the Minister submits, be understood as a complaint that the Tribunal erred in its treatment of country information. I note again that the written submissions suffer from the same difficulties as the “first” version handed up during the hearing. For example, it is difficult to see what is meant by “… Government/RMP rarely interevent of religious prosecution…”.
The applicant alleges, variously, that the Tribunal failed to take into account relevant considerations. These relevant considerations appear to be references to topics contained in, and identified, (by the applicant’s submissions) as a DFAT report.
It may be that the applicant seeks to refer to the DFAT report relied on by the Tribunal, and as referred to by the Tribunal in its decision record (see [64] to [66] at CB 204 to CB 206).
At best, the complaint appears to be that the Tribunal did not “review [the] DFAT [report] in detail”, in circumstances where the “DFAT is Mandatory consideration in accordance with Ministerial Direction No.56…”. This is “explained” by the assertion that the Tribunal failed to consider certain matters referred to in the DFAT report.
In its decision record the Tribunal, correctly, identified that it was mandatory for it to consider, relevantly, country information reports prepared by the DFAT ([10] at CB 193). The Tribunal in that light had regard to country information about Malaysia when considering and assessing the applicant’s claims to fear harm (see [64] to [66] at CB 204 to CB 206).
As the Minister submits, the choice of country information (within the obligation imposed by the Ministerial Direction No.56) and its assessment, and weight, to be assigned are matters for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]; QAAT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 968 at [51]).
The applicant’s complaint, when considered in light of the Tribunal’s decision record, is simply that the Tribunal should have found favourably for him. If it had considered the DFAT reports “in detail” it would have done so. This complaint does not reveal jurisdictional error. It is simply an attempt to cavil with the Tribunal’s assessment of the country information before it.
As to the assertion of a failure to take into account a relevant consideration, the applicant has not shown what other statutory requirement (beyond that imposed by Ministerial Direction No. 56) the Tribunal was compelled to take into account (Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; (1986) 162 CLR 24 (“Peko-Wallsend”)). In all, what the Minister identifies as “ground one” lacks merit.
Breach of ss.424A and 424AA
“Ground two” is described in the applicant’s submissions as “Ground 1”, “Credibility Assessment”. It is convenient to deal with this “ground”, which the Minister describes as ground two, with what the Minister describes as “ground” three (a claimed breach of ss.424A and 424AA).
Again, the applicant’s “grounds” provide difficulty in discerning any allegation of legal error from the “notes” provided under this heading. At best the following can be said.
The Tribunal breached s.424A, and s.424AA, because it did not provide the applicant with an opportunity to explain the term “a no body”. The ground attempts to provide a “Cambridge dictionary” meaning of this term.
Before the Court, the applicant’s submissions were, as best as they could be understood, that before the delegate, and as recorded by the delegate, the applicant told the delegate that he is “a no body” to the authorities. I understood this to mean that he said he was a person of little consequence or interest to the Malaysian authorities.
Relevantly, the delegate recorded in his decision record (at CB 122.5):
During the Protection visa interview the applicant advised that he is not of adverse interest to the Malaysian authorities; he is a ‘no body’ to the authorities; the authorities will not harm him; and he will be in danger from the community.
The applicant’s explanation of the “ground” before the Court was that the Tribunal was required by s.424A to ask him what he meant by the term “no body”. The Tribunal did not do so, and therefore breached s.424A by not asking him what he meant by this when making his claims before the delegate. The assertion is that the Tribunal then used this (the reference to “no body”) to find adversely to his credit.
The applicant’s “ground” appears to be part of his complaint that the Tribunal should not have found adversely to his credit. At [72] (CB 208) the Tribunal stated:
I accept the applicant is of Chinese ethnicity and Buddhist faith. I accept that he may disagree with proposals to expand the use of Sharia law in Malaysia and, in particular, consider hudud punishments to be barbaric and hold views that could be perceived as a denigrating Islam. Nonetheless for all the reasons that follow, I have significant concerns about the credibility of the applicant’s claims to have attracted the adverse attention of the authorities or any person or group in Malaysia in the past. In my assessment, the applicant’s evidence about his past experiences in Malaysia has changed significantly over time and these inconsistencies in his evidence demonstrate that he is willing to present false information in the hope of strengthening his claims to obtain a protection visa. Furthermore, having considered the available evidence about the nature and extent of the applicant’s online activity, I have formed the view that he has greatly exaggerated the extent of his online activity in the hope of obtaining a protection visa. My concerns about the credibility of the applicant’s claims are set out in detail below.
The Tribunal’s obligation pursuant to s.424A is to give to an applicant for comment, or response, information which it considers would be the reason, or a part of the reason, for affirming the delegate’s decision.
On the evidence before the Court, the Tribunal’s reasoning at [72] (CB 208) was certainly an expression of concern with the credibility of the applicant’s account of his dealings with, and the interest in him, of the Malaysian authorities (see also [71] and [73] (CB 208 – CB 209)).
The Tribunal found that the applicant had given inconsistent information about his interactions with the Malaysian authorities and his claimed problems in Malaysia. In relation to “no body”, the Tribunal contrasted his written claims with his statements as recorded by the delegate in his decision record, that he is a “no body” to the Malaysian authorities, that is, he would not be harmed by them.
The Tribunal relevantly stated (at [73] CB 208 – CB 209):
Firstly, the applicant has provided inconsistent evidence about his interactions with the Malaysian authorities and the problems he had in Malaysia. Although the applicant's written claims state he left Malaysia because he was threatened with arrest if he expressed views against Islamic law, when he was asked at the Tribunal hearing whether he was afraid of anyone at the time he left Malaysia, he said not really. At the hearing he referred to an incident that ·he said occurred in 2006 in which the police warned his mother that he should not post online otherwise he would be charged under the ISA. The applicant's evidence about his interactions with the police in Malaysia was inconsistent: in his written claims he claimed he left Malaysia after the police threatened him to write about Islamic law otherwise he would be charged under the ISA and that the chief of police gave a warning to his mother that if he returned to Malaysia he would be arrested under the ISA; in contrast, as the delegate's decision records, the applicant told the delegate he is ‘a no body’ to the authorities and the authorities will not harm him. Also of concern: he told the delegate that incident involving the police warning occurred in 2014 whereas he told the Tribunal that the police warning occurred in 2006 and he did not claim to be or adverse interest to the Malaysian authorities because of his online activity in Australia. Furthermore, at the hearing the applicant did not repeat his written claim that he reported an anonymous death threat to the Malaysian authorities but the police ignored his report and told him that if he did write anything against Islamic law he would be charged under the ISA. Instead, he· presented a new claim that he was assaulted in 2004 whilst riding a motorbike and that after 2006 he did not have any significant problems. I consider the applicant's shifting evidence about these matters casts doubt upon his credibility as a witness.
Inconsistencies in an applicant’s evidence and claims, the subjective views of the evidence, are not information for the purposes of s.424A. (SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [17] – [18]).
In any event, and contrary to the applicant’s complaint, the Tribunal did put its concerns about the inconsistencies in his evidence to him at the hearing (see for example [37], and what follows at [38] to [49], and in particular at [57] and [59] (CB 198 to CB 203). Nor is there anything in the applicant’s transcript of what he asserts was the Tribunal hearing to dispute the Tribunal’s account in this regard).
Further, the Tribunal did not simply base its adverse credibility findings on the matter of the “no body” claim. The Tribunal’s reasoning leading to its adverse credibility finding was based on a number, and various, inconsistencies in his evidence which the Tribunal also described as “shifting” ([73] at CB 209).
The Tribunal also found, based on the applicant’s own evidence to it, that “he was willing to provide false information” ([74] at CB 209), and that he “admitted that he embellished his written claims” ([75] at CB 209). Further, that his claims “change significantly over time” ([72] at CB 208). Even further, that he greatly exaggerated the extent of his online activity ([77] at CB 210).
All of these findings were reasonably open to the Tribunal on what was before it. Although the applicant did not press in his ground that the Tribunal’s approach was illogical or irrational I note what was said by Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (at [52], [54] – [56]).
Further, in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [66]:
It may be accepted that cases such as SZNPG and Smith do make the point that, unless it is strictly necessary, it is preferable not to reach a conclusion that an applicant is a “liar”. But while this is indeed sound practice, the remarks do not suggest that the Tribunal will have fallen into jurisdictional error if it does reach such a finding. There was ample foundation in this instance for the Tribunal to reach the conclusion that the appellant was not a witness of truth.
So too in the current case. The Tribunal’s conclusion as to the applicant’s lack of credibility was based on findings reasonably open to it and for which the Tribunal gave reasons probative of the evidence and material before it. There is no arguable case of jurisdictional error in this regard.
Breach of s.425
The Minister suggests in submissions that the applicant also seeks to complain of a breach of s.425. At best, this is again probably by virtue of the complaint that the Tribunal did not give him the opportunity to explain about “no body”, although the complaint may have been intended to have a broader application.
Whatever the case, the applicant was invited to a hearing before the Tribunal pursuant to s.425 of the Act on 6 June 2016. On the evidence, it was a meaningful opportunity to give his evidence and arguments. He was invited to a subsequent hearing following the provision of his written submissions, and that occurred on 9 August 2016.
The applicant’s complaint, and taking into account what purports to be a transcript of the Tribunal hearing, and as it appears in the written submissions, is apparently that the Tribunal misled, or sought to entrap the applicant (see the reference to: “setting trap in the question try to be misleading the applicant to answer” (see item “15” at page 15). Further, that the Tribunal “keep switching different way asking same question” (item 14 at page 14)).
Based on the Tribunal’s account of the hearing, and even on the applicant’s “transcript”, the Tribunal’s questions appear clear, focused and relevant to the applicant’s claims. For example, the particular matter “raised” at pages 14 and 15 of the applicant’s submissions is whether the applicant would face harm for reason of the claim that his name appeared on a Malaysian Roads and Transport Department “blacklist”.
This was the applicant’s claim. The Tribunal was entitled, if not obliged, to raise this with him. Simply because the applicant was unable to provide a satisfactory explanation does not of itself reveal a breach of s.425. On the evidence the Tribunal complied with its obligation to give the applicant the opportunity to discuss the issues in the review. No reasonable argument indicating legal error arises from this complaint.
Bias
The applicant’s submissions appeared to indicate that the Tribunal was biased (“without consider [in context his explanations] make her own conclusion” (see item 14 at page 14)).
Given the seriousness of such a complaint, an allegation of bias must be “distinctly made and clearly proven” (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679). The applicant’s submissions failed to meet the first of these elements, let alone provide some arguable basis that the allegation of bias could be made out.
On the evidence before the Court, and even in light of the applicant’s transcript, it cannot be said that the Tribunal did not bring an open mind to the conduct of the hearing, or the conduct of the review. The applicant’s grievance and disagreement with the Tribunal’s findings do not indicate, let alone provide a basis to establish, bias.
Breach of ss.353 and 420
Under the heading of “ground three” number “five” (addressed by the Minister in his submissions under “ground two”) the applicant refers to the Tribunal’s lack of persuasion as to three “incidents 1995, 2002, 2003”. He states that at the hearing he mentioned only two incidents (of past harm).
The complaint appears to be that the Tribunal breached s.353(2) and s.420(2) of the Act because the events involved in these incidents occurred in the past, and “a person may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons” (page 3 at item 5). Further, a similar breach occurred because the Tribunal used “a forgotten event” to cast doubt on the applicant’s credibility (this with reference apparently to [73] of the Tribunal’s decision (see CB 208 to CB 209)).
What can immediately be said is that s.353 does not apply to the applicant’s circumstances. Section 420(2) did not exist at the time the applicant made his application for review (15 February 2016). Section 420 was amended on 1 July 2015: Tribunals Amalgamation Act 2015 (Cth).
To the extent that what is set out at s.420(1) currently, is in similar terms, to the repealed s.420(2), I agree with the Minister’s submission that the section does not import substantive common law requirements of procedural fairness into Part 7 of the Act. Therefore, on its own, this cannot give rise to grounds for judicial review: Minister for Immigration & Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 at 233 [16].
In any event, the applicant’s complaint may be that it was not open to the Tribunal to base its adverse credibility finding on the applicant’s inconsistent evidence about events that happened in the past, and which are subject to memory loss and the like, even in matters involving “personal history”.
There is no evidence that the applicant offered that explanation to the Tribunal in response to the Tribunal’s expressed concerns about the credibility of his evidence. As set out above, the Tribunal’s findings were all reasonably open to it and for the reasons that it gave. They were probative of the material before it. No legal error is indicated by this complaint.
Tribunal failed to take into account a relevant consideration
The applicant variously claims that the Tribunal failed to take into account a relevant consideration, and took into account an irrelevant consideration (the Minister describes this as “ground four”).
It is the case that either assertion, if made out, may reveal jurisdictional error (Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; (1986) 162 CLR 24 at [15]). Of course as the Minister submits the relief sought would only be granted if the error was capable of materially affecting the decision (Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors [1986] HCA 40; (1986) 162 CLR 24 at [15]).
To the extent that this complaint relates to country information, that is addressed above. For the remainder, the complaint appears to be with the Tribunal’s finding that the applicant would not face harm in Malaysia for reason of his minority status in that country as a non-Muslim, and with particular reference to [88] (at CB 213) of the Tribunal’s decision:
As I discussed with the applicant the news articles he has submitted do not support his claims that sixty per cent of Muslims in Malaysia support IS. (Nor for that matter, do the reports support his claims that thousands of Malaysians have gone to fight with IS). At the second hearing the applicant referred to an attack on a nightclub in Malaysia that the police have linked to ISIS. While I accept that the country information indicates that indicate a small number of people in Malaysia have travelled abroad to fight in support IS and suggest that a larger, but still relatively small, percentage of the total population of 31 million people may support IS, I do not accept the applicant’s claims that most of the Muslims in Malaysia support IS and nor, on the evidence before me, do I accept that there is a real chance that the applicant will face serious harm or significant harm simply because he is not a Muslim
[Errors in original]
[Footnotes omitted]
In particular, that the Tribunal failed to consider the applicant’s claim that non-Muslim minorities fear harm from extremist Muslims. In contradiction, the applicant also appears to complain that the Tribunal’s assessment as to whether he feared harm based on his minority status amounted to taking into account an irrelevant consideration.
It was the applicant himself who claimed to fear harm as a result of his ethnicity and religion which were in minority in Malaysia, and which he said gave rise to a fear of harm from extremist Muslims who were motivated to inflict harm on such minorities, and who were also part of the Muslim majority in Malaysia. In particular, the applicant claimed to fear harm from these extremists because of his published views on Sharia law.
The Tribunal properly considered this claim (see [85] – [102] at CB 212 to CB 218). To have failed to do so, of itself, could have led to jurisdictional error.
The applicant’s “argument” now as expressed in his submissions, and his reliance on his “calculation” of the ethnic and religious make up of Malaysia, reveals that his complaint is no more than an attempt to cavil with the Tribunal’s findings, and its conclusion based on these findings. That is, it could not be satisfied that he faced a real risk of harm for the reasons he advanced. In short, his complaint seeks impermissible merits review and lacks merit such as to argue for an extension of time.
The applicant also relies on s.5(2)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“AD(JR) Act”) to base his assertion that the Tribunal took into account an irrelevant consideration (see [18] at page 16 – 17). The AD(JR) Act does not apply to the applicant’s case (see the definition of “decision to which this Act applies” in s.3, and Sch.1(da) and (db) of that Act).
Tribunal acted unreasonably
It would appear from what the applicant says is a transcript (or a part of the transcript) of the Tribunal hearing that he also complains (see the reference at [20] at page 17) about the Tribunal’s consideration of his claim to have been on a “blacklist” maintained by the Malaysian Department of Transport (see also [90] above).
The complaint is that the Tribunal acted unreasonably in giving “inadequate weight” to the “blacklist”.
As the Minister submits (at [44] of the Minister’s 29 June 2018 written submissions):
Unreasonableness in a decision sufficient to constitute jurisdictional error will only be found where, following a consideration of the subject matter, scope and purpose of a provision, and in light of the reasons given for the decision, a finding is "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", or "obviously disproportionate". Similarly, "illogicality" or "irrationality" sufficient to constitute jurisdictional error requires a finding be one which no rational or logical decision-maker could arrive at on the same evidence. These remain stringent tests, as findings of legal unreasonableness are ''fairly rare and would only occur in relatively clear cases".
[References and italics excluded]
Again, the applicant’s claim here is no more than an expression of grievance with the Tribunal’s conclusion on the “blacklist” claim. It seeks impermissible merits review. The Tribunal’s analysis on this matter was detailed and comprehensive. It took into account the applicant’s own evidence and country information before it (see [98] – [101] at CB 217 to CB 218).
To the extent that he complains that Tribunal gave “inadequate weight” to the “blacklist”, the weight to be assigned to evidence before it is a matter for the Tribunal in the proper exercise of its jurisdiction (SZTEX v Minister for Immigration & Border Protection [2014] FCA 1269; SZMUF v Minister for Immigration & Citizenship [2009] FCA 182; Minister for Immigration and Citizenship v Li [2013] HCA 18; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28).
Real chance test
The applicant’s “Conclusion of statement” appears to take issue with the Tribunal’s understanding and application of the “real chance test”.
The difficulty for the applicant is that on the evidence before the Court there is nothing to show that either complaint can be made out or, relevantly, has any merit.
The Tribunal’s expression of the correct test, as it applied to both the criteria for the grant of the protection visa, does not reveal any error or failure in the correct understanding (see [5] – [9] at CB 192 to CB 193, and with reference to the “Attachment” at CB 219).
The Tribunal’s application of the test, and its subsequent conclusion, reveal no error in its application to the circumstances presented on the facts as found (see in particular [101] and [102] at CB 218).
In all, the applicant was given the opportunity to present his evidence and make his arguments at the hearing with the Tribunal. On the evidence, this was a meaningful opportunity in the requisite sense. The Tribunal made findings of fact which were reasonably open to it on what was before it and for which it gave reasons probative of the material before it. This complaint also lacks merit.
Conclusion
The applicant’s complaints do not rise above a lengthy, and it must be said confused, attempt to express grievance with the Tribunal’s findings, and to seek to cavil with them. In the circumstances, what amounts to a request for impermissible merits review does not raise an arguable case which calls for the extension of time pursuant to s.477(2).
The application to the Court pursuant to s.477(2) is therefore to be refused. I will make the appropriate order.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 17 December 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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