CTG17 v Minister for Immigration

[2018] FCCA 2244

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTG17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2244

Catchwords:
MIGRATION – Application for review of decision of the Administrative Appeals Tribunal – protection (Class XA) visa – where Applicant ‘disagrees’ with Tribunal decision – Applicant seeks impermissible merits review – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 65, 424A, 425, 499

Cases cited:

CTI17 v Minister for Immigration & Anor [2018] FCCA 2243

Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505

Applicant: CTG17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1320 of 2017

Judgment of: Judge Hartnett

Hearing date: 7 August 2018

Delivered at: Melbourne

Delivered on: 7 August 2018

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Mr Lipinski

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1320 of 2017

CTG17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed 22 June 2017 wherein the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 2 June 2017.  By that decision, the Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicant a protection (Class XA) visa (‘the visa’).

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

   “1. Disagree with the statement no 32, 34, 36-37, 43-47, 50-56, pages 6 -14 in the decision record.

   1) (31)  Submit the application to JAIS to change my name meaning that I declare myself not Muslim. But I can’t provided document because the all document I have lost during I travel in Australia.

   2) (59)  I not agreed just because I am not the important person that I will safe.  If I someone in my place of couse my treat be a big isu to authority.  Just because I am noboday that why I came to Australia to ask for protection.  I don’t want my son and my mother in danger because of me.

   3) (36)  what is meant is different.  My place near to school while is majority is Muslim.  The in the small town and rural area that not easy to ask everyone in my community protect me.  My treat come from outsite people that we can’t aspect when they come and we event don’t know them.

   4) (37) We not feel safe event we make police report because this is always happen in my place.  That is impossible I can make make if die.  The police wad prove.  How to prove because the treat verbaly and what happen to me if the people can’t control themself and will kill me when I protect myself.

   5) (43) I not agree just because I am 47 year old that people not dare to kill me my community can’t event watch me every sirpe my moment.  I just want my life nothing to worry above my safe in my age.

   6) (44) I not agree because some case fight by lawyer also not success.  one case Jenny Petter @ Nur Muzdhalijah Asdullar, Tiony Choo Ling @ Mohd Syafiq Abdullah and Salina Jau Abudllah all of them not success change of to non Mmuslim name.

   7)  (45)  same and (44).

   8) (46)  I not agree because the harm start when I lodge application to change my name to JAIS.  as I work at government agency the news spread to fast to among muslim community.  my life street and not feel save that why I resign from government and come to Australia ask for protection.

   9) (47)  My life not safe if we stay at Sarawak.  some case not report to authority because they scare to that and hiding in some place but I can’t hide myself because I have mother and son that I have to look after them.  my mother is 78 years and I want her happy in her life.

   10)  (52)  I not agree that we are safe if we removed from Australia to Malaysia.  we have to died and yet everyone believe that we not safe. And time is to late asking for protection and my son and my mother will be nobody look after them.”

   (Errors in original)

3. The First Respondent seeks dismissal of the application and costs.

4. On 20 March 2017 the Court made orders by consent, which included that the Applicant file written submissions 28 days before the final hearing.  The Applicant has not filed any such submissions but was given an opportunity this day to make oral submissions. Essentially, the oral submissions of the Applicant were a statement to the effect that the Applicant did not agree with the findings of the Tribunal.

5. The Applicant added that whilst she was living here she was still following up on what was happening in her “place”, being Malaysia, and the country from which she departed before arrival in Australia.  The Applicant submitted to the Court that the authorities were afraid that she would support her children to leave Islam.  She submitted her life was difficult and harsh if she were to return to Malaysia and that the authorities were constantly looking for her and were continually looking for her family. Her children were living in constant fear.  The Applicant submitted that the Tribunal made a wrong finding when it found that there was no threat to her.

6. The First Respondent filed written submissions (as ordered) and relies upon those written submissions which are dated 24 July 2018. 

7. There is also before the Court the evidence as contained in the Court Book filed 4 April 2018.  The Statement of Decision and Reasons (‘the Decision Record’) of the Tribunal of 2 June 2017 is contained in the Court Book.

Background

1. The Applicant arrived in Australia on 30 March 2015.  Almost one year later, and on 18 March 2016, the Applicant applied for a protection (Class XA) visa and upon making that application, the necessary associated bridging visa was granted to her. 

2. By decision dated 1 August 2016, the delegate refused to grant the visa on the basis that the Applicant did not satisfy the criteria under ss.36(2)(a) or 36(2)(aa) of the Migration Act1958 (Cth) (‘the Act’).

3. The delegate summarised the Applicant’s written claims at that stage as being as follows:-

   a)she received death threats because she married a Christian man, which is not allowed, as she is a Muslim;

   b)she “came out” of the religion of Islam;

   c)both families abused she and her husband because of her practicing as a Christian. The Islamic community interferes and threatens to kill her; and

   d)the authorities are controlled by the Muslims and she does not feel safe to seek assistance.

4. The delegate considered extensively relevant country information when the matter was before the delegate. The delegate doubted the claimed nature of the relationship between the Applicant and her purported husband; noted the very limited information provided by the Applicant, with no documentary evidence to corroborate her claims such as evidence of her religion or marriage to her husband; and noted further the Applicant’s delay in submitting a protection visa application. The delegate was not satisfied that the Applicant had established her case and without further context the delegate found, on the information before the delegate, that the Applicant would receive effective protection from the authorities in Malaysia from any threats against her life. 

5. On 12 August 2016, the Applicant applied to the Tribunal for merits review of the delegate’s decision. The Applicant attached to her review application the delegate’s decision and the letter from the Department of Immigration and Border Protection (‘the Department’) notifying her of the delegate’s decision to refuse to grant the Applicant the visa on the basis that the Applicant did not satisfy s.36(2)(a) and (aa) of the Act.

6. The Tribunal, by letter of 20 April 2017 sent by email to the Applicant, invited the Applicant to attend a hearing on 22 May 2017. The invitation to attend a hearing was to enable the Applicant to give evidence and present arguments relating to the issues in her case. The Applicant and her husband attended the hearing on 22 May 2017.  

7. By letter dated 2 June 2017 sent by email to the Applicant, the Tribunal notified the Applicant of its decision dated 2 June 2017 to affirm the decision of the delegate to not grant the visa.

The Tribunal decision

1. In its Decision Record the Tribunal:-

   a)set out the relevant criteria for a protection visa and mandatory considerations in accordance with Ministerial Direction Number 56 made under s.499 of the Act;

   b)summarised the Applicant’s claims in her visa application as set out in paragraphs 9 and 10 of the Decision Record, and being that:-

   i)the Applicant had received death threats because she had married a Christian; and

   ii)the Applicant came out of the Islam religion;

   iii)both the Applicant and her husband’s family told her to leave Malaysia;

   iv)the Muslim community knows of her practice as a Christian and will kill her;

   v)the Islamic Department came to her home; and

   vi)she is unable to go anywhere in Malaysia to avoid the violence.

2. The Tribunal noted that in her application for the visa, the Applicant had identified herself as a Muslim.  She stated that she married on 1 November 2014, although the marriage was not registered with the authorities.

3. The Tribunal proceeded to set out its findings and reasons, accepting that Malaysia was the Applicant’s country of nationality for the purposes of the refugee and complementary protection assessments.  It found the Applicant to not be a credible witness, providing inconsistent evidence. The Tribunal considered relevant country information, in particular, the Department of Foreign Affairs and Trade (‘DFAT’) country information report in respect of Malaysia, dated 19 June 2016. Such country information, together with other relevant country information, was discussed by the Tribunal with the Applicant and her husband.

4. The Tribunal asked the Applicant the basis of the Applicant’s claims in circumstances where the country information canvassed between the Tribunal and the Applicant and her husband did not support the claims as made by the Applicant. Throughout that process, the Tribunal, as detailed in the Decision Record, found the Applicant to change her evidence and the Tribunal said at paragraph 32 of the Decision Record:-

   “The Tribunal considers that the applicant has contrived the claim that she sought to convert back to Christianity in Malaysia. The Tribunal considers that the applicant has not been truthful about this aspect of her claim, as made at the hearing.  The Tribunal does not accept that the Applicant has approached the Sharia Court in Malaysia seeking an order allowing her to revert to Christianity.” 

5. The Tribunal otherwise had regard to the Applicant’s evidence and further claims, including that:-

   a)the Applicant has resided in a location in which there was a significant Christian presence;

   b)members of the Applicant’s ethnic group predominantly practised Christianity; and

   c)the Applicant was previously Christian and converted to Islam for her first husband.

6. The Tribunal did not accept:-

   a)that the Applicant was threatened because of her relationship with her husband because she was a Muslim and he was a Christian;

   b)the Applicant made a failed application to convert back to Christianity in Malaysia;  or

   c)the Applicant was threatened or harassed because she sought to change her name.

7. The Tribunal found, as set out in paragraph 33 of the Decision Record:- 

   “The Tribunal considers that there is a legal process available to the applicant which she has not embarked upon whereby she could seek to revert to her original Christian religion from Islam. The Tribunal accepts that this is not an easy process, and as detailed, of the applications that have been made to convert away from Islam, more have failed than have succeeded. However the circumstances of [the] applicant, including that she was originally a Christian and is seeking to revert to Christianity, are grounds that have been accepted by the Sharia Court as being grounds to permit the reversion.  The applicant’s location in Malaysia also assist her, she is from Sarawak where Christians outnumber Muslims.  There is a recent example in Sarawak of a man who had been a Christian, had been converted to Islam by his parents, and who sought and received the permission of the court to revert to Christianity.  The man had been a Muslim for longer than the applicant has been and the court permitted him to convert.  The applicant is of an ethnicity which is predominantly Christian, with a very small percentage (1.5%) being Muslim.  The Tribunal considers these factors assist the applicant, and that she would have the opportunity to make this case before the Sharia Court, as is permitted by law.  The Tribunal considers that, on the basis of the personal circumstances of the applicant, that she will be successful in her request to the court to be permitted to leave Islam and return to the Christian faith and practice.  The Tribunal considers that the applicant has not availed herself of all the legal opportunities available to her in Malaysia to lawfully change her religion so that she may be permitted to have her marriage to [her husband] recognised.”

8. The Tribunal had regard to the Applicant’s personal circumstances and found that the Applicant did not face a real chance of serious harm or a real risk of significant harm arising out of:-

   a)her request to revert to Christianity;

   b)her cohabitation with her Christian husband while awaiting the outcome of the application for reversion;  or

   c)her conversion to Christianity being perceived as encouragement for apostasy.

9. The Tribunal found the Applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act or the complementary protection criterion in s.36(2)(aa) of the Act.

Consideration

1. These reasons should be read in conjunction with the reasons in CTI17 v Minister for Immigration & Anor [2018] FCCA 2243, which deals with the Tribunal decision in respect of the Applicant’s husband or purported husband. The two proceedings were heard by the same Tribunal member on the same date with both parties participating in the same hearing. On judicial review and by consent, Registrar Ryan made orders that the two proceedings be heard together. This occurred.

2. Like the husband’s application, the wife’s grounds of judicial review effectively seek, in the circumstances of this case, impermissible merits review.

3. The Tribunal correctly applied the law. As submitted by the First Respondent, the Tribunal:-

   a)correctly described and applied the regime established by ss.5H, 5J and 36(2)(a) of the Act;

   b)correctly described and applied the appropriate risk threshold (real risk of significant harm) for the complementary protection regime under s.36(2)(aa) of the Act consistent with Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, although the Tribunal did not expressly refer to that case; and

   c)correctly described and applied the law in relation to its ability to make credible findings.

4. The findings made by the Tribunal were clearly open to it. On the material before it, there was nothing illogical about the decision-making process. The Tribunal considered relevant country information, its choice of same and the weight to be given to it, a matter for the Tribunal, and discussed that country information with the Applicant and her husband.  The Tribunal discussed the various elements of the claims of the Applicant and did not fail to consider any claim put before it by the Applicant or any claim that might reasonably have arisen on the material before the Tribunal.

5. The Tribunal complied with its procedural fairness obligations under Part 7 of the Act and it did not breach its obligations under ss.424A or 425 of the Act. At the hearing before the Tribunal, the Applicant was given an opportunity to provide oral evidence and the Tribunal questioned the Applicant about those matters of concern to the Tribunal and in particular, any inconsistencies between matters raised by the Applicant in her visa application, and matters raised in her oral evidence given at the hearing.

6. The Court accepts the submission of the First Respondent that the information on which the Tribunal relied in affirming the delegate’s decision fell within the scope of the exceptions to the requirement under s.424A of the Act to invite the Applicant to comment on adverse information because:-

   a)the Tribunal relied on country information in affirming the delegate’s decision, which is covered by an exception pursuant to s.424A(3)(a) of the Act; and

   b)the Tribunal relied on information provided in the visa application in affirming the delegate’s decision, which is covered by an exception set out under s.424A(3)(b) of the Act.

7. The Tribunal questioned the Applicant as to any inconsistencies in respect of the evidence contained in the Applicant’s application and her evidence at the hearing.  The Tribunal put relevant country information to the Applicant for response and discussion, and interacted with each of the husband and wife in a thoughtful and logical way. 

8. There is no jurisdictional error attending the decision of the Tribunal and accordingly, the application is dismissed and costs shall be awarded to the First Respondent.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 17 August 2018