Cti17 v Minister for Immigration

[2018] FCCA 2243

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTI17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2243

Catchwords:
MIGRATION – Application for review of decision of the Administrative Appeals Tribunal – protection (Class XA) visa – where Applicant ‘disagrees’ with Tribunal’s findings – 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:

CTG17 v Minister for Immigration & Anor [2018] FCCA 2244

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

Applicant: CTI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1322 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 1322 of 2017

CTI17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

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

2. The grounds of review are as follows:-

   “1.    Disagree with the statement no.24-38, pages 6-11 in the decision record.

   1) (24) I not agree that my wife application change religion and name success.

   2) (25) same as above.

   3) (26) I not agree if my wife success change religion and name and no harm to us.  And my place that is rural are very hard to asking my community to protect us.

   4) (28) I not agree.  What I meant we have report but seem not action from authority because I am not someone important.  If I someone of couse my report will noted by authority.

   5) (29) same as above.

   6) (30) I not agree  just because I am 49 year old I save stay in my place and among my community.

   (7) (31) I not agree everyone fanatic in muslim thinking because of me my wife conversion from Islam.  If am died or lost they think my wife will change her mind.

   8) (32) I not agree with that statement.  As my place rural area that everything above religion is sensitive issue.

   9) (34) I not agree that we are safe when we removed from Australia to Malaysia. Among group fanatic Islam will looking for us when the know we are at Malaysia and that will harm my family too. 

   If we died because of nobody help us,  that is very sad because we still have responsibility to our family that we have to look after.  Please look our case and please consider it.”

   (Errors in original.) 

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

4. On 20 March 2018 Registrar Ryan made orders by consent which included an order that the Applicant file written submissions 28 days before this date.  The Applicant did not file any submissions.  The Respondent was likewise required to file written submissions and the Respondent relies upon those submissions which were filed on 24 July 2018. 

5. There is also before the Court the evidence as contained in the Court Book filed 4 April 2018 which in particular contains the Statement of Decision and Reasons (‘the Decision Record’) of the Tribunal.

6. The Applicant was given an opportunity this day to make oral submissions and he did so. His oral submissions were, in essence, a statement to the effect that he disagreed with the findings of the Tribunal.  He submitted that it was not easy to depart from the practice of Islam and that he and his wife were Christian people.  He then proceeded to explain some of his religious beliefs with the inclusion of an extract from the Bible. 

7. The Applicant submitted that the Tribunal should have let him stay longer in Australia because anything about religion is not easy to resolve, and that things were going to get worse.

Background

1. The Applicant is a citizen of Malaysia.  He arrived in Australia on 29 May 2015.  Almost one year later, and on 18 March 2016, the Applicant applied for the visa.

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 Act 1958 (Cth) (‘the Act’).

3. The delegate noted the claims of the Applicant being at that time his written claims as provided to the Department of Immigration and Border Protection (‘the Department’). Those claims were summarised as being:-

   a)the Applicant had received death threats because he married a Muslim woman and this is not allowed unless the spouse converts to Islam;

   b)his wife “came out” of the religion of Islam;

   c)both families advised them to leave the country for security reasons.  The Islamic community knows of his wife’s Christian practice and interferes and threatens to kill his family. The Islamic religious Department always came to the house and disturbed the peace; and

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

4. The delegate considered relevant country information in relation to those matters raised in the claims of the Applicant.  The delegate noted that the Applicant had outlined his situation in minimal detail and had not provided any documentary evidence to corroborate his claims such as evidence of his religion or marriage to his wife.  The delegate noted in paragraph 24 of the Decision Record that:-

   “While claiming that his wife practises Christianity, I note that [his wife] has declared her religion as ‘Muslim’ on her application for protection which was lodged on the same date as the applicant’s application.” 

5. The delegate also noted that both the Applicant and his wife’s applications had been written by the same hand, albeit the Applicant declared he did not receive any assistance with the completion of his application for the visa.  The delegate noted further in paragraph 24 that:-

   “…the applicant and his purported wife arrived in Australia on different dates...”

6. This, together with other matters, led the delegate to doubt the claimed nature of the relationship between the Applicant and his purported wife. 

7. The delegate also found the Applicant’s delay in submitting a protection visa application raised serious concerns about the immediacy, gravity and credibility of his claims of fearing persecution in Malaysia.  The delay indicated to the delegate that on the occasion of the Applicant’s arrival in Australia, he did not have a genuine fear for his safety.

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

9. The Tribunal acknowledged receipt of the Applicant’s application by correspondence on 18 August 2016. On 20 April 2017, the Tribunal forwarded to the Applicant an invitation to attend a hearing before it to give evidence and to present arguments relating to the issues in his case.

10. The hearing date was 22 May 2017.  The invitation to hearing also noted that an interpreter in the Malay language would be available for the Applicant. 

11. 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 under s.65 of the Act.

12. The Tribunal noted firstly that the Tribunal hearing was a combined hearing with the Applicant wife’s hearing, she having also filed an application for review of a decision made by a delegate of the First Respondent which refused to grant to her a protection visa under s.65 of the Act.

13. The Tribunal, in its Decision Record set out the relevant criteria for a protection visa and noted that it had taken into account, in accordance with Ministerial Direction Number 56 made under s.499 of the Act, the policy guidelines prepared by the Department of Immigration – Refugee and humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’), to the extent that they were relevant to the decision under consideration.

14. The Tribunal accurately set out the relevant law. 

15. The Tribunal summarised the Applicant’s claims, they being those claims as set out in the decision of the delegate and as referred to in paragraph 10 above and additionally, that the Applicant and his wife could not go anywhere in Malaysia to avoid the violence. 

16. The Applicant claimed further that he had married his wife on 1 November 2014 although the marriage was not registered with the authorities.  The Tribunal noted in paragraph 19 of the Decision Record that the Applicant’s claims:-

    “…revolve around his relationship with his wife, who is presently a Muslim, though was born a Christian.  The applicant claims that he will not be able to live with his wife.  He claims also that he may be harmed because he will be seen as assisting a Muslim to convert to Christianity. He provided some country information at the hearing about a Christian pastor in Kuala Lumpur who had disappeared.  The reports indicate that the pastor was involved in an organisation that was accused of attempting to convert Muslims when they hosted a party with Muslim attendees at a Church.”

17. The Tribunal discussed the Applicant’s claims with he and his wife.  The Tribunal noted that the location of the Applicant and his wife in Malaysia had a greater proportion of Christians than Muslims.  The Tribunal noted that the Applicant confirmed his wife’s background as a former Christian and of Iban ethnicity. 

18. The Tribunal noted the country information that the Applicant came from a State in Malaysia where the number of Christian followers outnumbered Muslims, the only State that the Tribunal was aware of that had that statistic. 

19. The Tribunal said further at paragraph 20 of the Decision Record:-

    “The Tribunal noted their respective ethnic groups, he came from [a] small tribe of Punan, while his wife was Iban, are predominately Christians.  The applicant confirmed that the Punan are almost all Christians, while the Tribunal noted that 75% of Iban are Christian, and only 1.5% of Iban are Muslim.  Ibans are the biggest ethnic group in Sarawak, [being the State from which the Applicant and his wife came] with a population of 745,400.”

20. The Tribunal discussed relevant country information that was before it which included the most recent DFAT report on Malaysia,[1] and noted that there was a process available for people who seek to convert from the Muslim faith in Malaysia.

    [1] DFAT Country Information Report Malaysia datd 19 July 2016. 

21. The Tribunal said at paragraph 21 of the Decision Record relevantly:-

    “…Country information available and discussed at the hearing details that a Sharia Court can permit a person to convert from Islam to another religion.  The country information states that this is not available for Malaysians who are Muslims by birth, but that it has been permitted when a person has converted to Islam from another religion, and then subsequently wants to convert again.  This is in particular in circumstances where the person may have converted to Islam to marry a Muslim, and the relationship has ended and the person wishes to return to their original religion.  Most examples of this are people who convert from Christianity to Islam, and wish to return to Christianity.”

22. The Tribunal considered on the basis of country information that the Applicant’s wife would be able to present a strong case to the Sharia Court to convert back to Christianity.  This was because the Applicant’s wife, as a former Christian from the Iban tribe living in Sarawak, now divorced from her Muslim husband, would be able to present a case that the court would accept as a reasonable reason for her to convert to Christianity. 

23. The Tribunal considered that as the Applicant’s wife would be able to revert to Christianity, the Applicant and his wife would be able to reside in Malaysia as Christians. 

24. The Tribunal considered as set out in paragraphs 28 to 29 of the Decision Record, that there was an inconsistency between the information provided in the Applicant’s visa application, and that at the hearing, and expressed concern as to the Applicant’s willingness to provide false information to bolster his claims in circumstances where contrary issues were raised. This was in relation to the Tribunal asking of the Applicant whether he had been to the police to report any of the threats that he claimed had been made to he and his wife as he claimed at the hearing, given this contradicted the Applicant’s evidence in the form of his application for the visa wherein he stated he did not feel safe even asking for help from the authorities. 

25. The Tribunal accepted there would be some people who would not accept the Applicant’s wife’s choice to revert to Christianity but did not accept that those in the community who did not agree with her choice would seek to harm the Applicant or his wife. 

26. The Tribunal did not consider that the Applicant’s wife’s pursuit of a path of reversion to Christianity would cause her to be threatened or harmed by any groups who oppose apostasy or that the Applicant would be seen as someone who had encouraged such apostasy. 

27. The Tribunal found the Applicant did not face a real chance of serious harm or real risk of significant harm on the basis of:-

    a)his wife reverting to Christianity;

    b)his wife choosing to leave the Islamic faith; or

    c)the Applicant encouraging his wife to revert to Christianity.

28. Accordingly, the Tribunal found that the Applicant did not satisfy ss.36 (2)(a) or 36(2)(aa) of the Act and affirmed the decision of the delegate to refuse the visa.

Consideration

1. These reasons should be read in conjunction with the reasons in CTG17 v Minister for Immigration & Anor [2018] FCCA 2244, which deals with the Tribunal decision in respect of the Applicant’s wife or purported wife. 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. The Applicant’s grounds of review as set out in his judicial review application do nothing more than seek impermissible merits review in the circumstances of this case. 

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 his wife.  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 application in his visa application and his 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. 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 forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 17August 2018