CWT17 v Minister for Immigration

[2018] FCCA 4030

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWT17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 4030

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: CWT17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1383 of 2017

Judgment of: Judge Riethmuller

Hearing date: 1 November 2018

Date of Last Submission: 1 November 2018

Delivered at: Melbourne

Delivered on: 1 November 2018

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Mills Oakley

ORDERS

1. The application be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1383 of 2017

CWT17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’).  The applicant came from Malaysia to Australia in November 2015 on a visitor visa. The applicant lodged an application for a protection visa in February 2016. 

The applicant’s claims

1. The applicant said he needed protection because his business partners were trying to force him out of a co-owned phone shop.  The applicant said that his partners had arranged for gangsters from the Three Line gang to beat him.  The applicant was fearful that if he returned to Malaysia, he would be killed.  The applicant told the Tribunal that his brother was attacked with a knife when the gangsters mistook his brother for him when his brother was driving his car.

2. The applicant said he came to Australia via Singapore.  He said he had hoped to obtain documents from Malaysia, but could not do so unless he attends personally to get them. 

The Tribunal Hearing

1. The Tribunal heard the applicant’s evidence. The Tribunal did not believe the applicant. The Tribunal gave reasons for this, saying:

   15. Firstly, his evidence about these matters was vague and did not contain the kind of detail and explanation commensurate with the truth. For example he provided little detail of his connections with the Malay partners he entered into a partnership with, saying he knew them for a year through mutual friends, and only saw them when he visited from Kuala Lumpur, where he was living. He indicated that he invested money with them as they spoke nicely and politely, yet he did not provide any details of his interactions with him prior to the agreement, which would explain why he would enter into a partnership with them without a written contract. He appeared to have no idea of what he would get out of his investment, which would have been expected had he invested money. His explanation about why they wanted him to convert was also confused, and lacking in detail, as he based this on the fact that bumiputra are required to participate in all businesses, yet his partners were Malay. When asked about this, he said that they required him to convert and be bumiputra, but did not provide any detailed reasons. He also provided little detail of why the partners would continue to harass him when he had left the business and area. The Tribunal put to him that they had achieved their objective, which was to extricate him from the business, so that there did not appear to be a motive to continue to seek him out. He said that they wanted a signature that he was not involved, in case he returned later and asked for money. However, as there was no written contract this does not appear to be a convincing explanation as to why they would continue to seek him out, when he had done the very thing they wanted him to do, leave the area and the business, and he had not returned or asked them for money. This does not appear to be an adequate motive to attempt to kill or at least seriously harm him, as he suggests was the case when his brother was stabbed in a case of mistaken identity, in a city a long way from his hometown. These details were not adequately explained and for this reason the Tribunal does not accept that the account of what happened to him in relation to these partners and associates is credible.

2. The Tribunal also noted that the applicant included different claims before the Tribunal which were not set out in his first application.  The applicant said that this was because he had engaged a person he describes only as ‘Joe’ to lodge his form. The applicant claims he was the victim of migration fraud because Joe did not do a proper job of lodging his form. The Tribunal considered the applicant’s evidence about how his form came to be lodged and did not accept his explanation: see [17] and [18].

3. The Tribunal also considered whether there was discrimination of Indian Malays in Malaysia, but were not persuaded that there was a ‘real chance’ of persecution, nor that the discrimination that seems to take place in Malaysia is serious enough to amount to ‘serious harm’, which is required for a protection visa.

Judicial Review

1. The applicant’s grounds for judicial review are as follows:

   1. I made an application for Protection visas on 2nd Feb 2016 and My application for Protection Visa has been refused 6 May 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act). A delegate of the Minister for Immigration (the Department) refused to grant the visa on 18 March 2016

   2. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian my application has been refused.

   3. I explained to the tribunal that I have a genuine fear for my life back in Malaysia and I have been discriminated against my race and religion. I was told that this country belongs to Muslim people and I feared for my safety.

   4. Tribunal member has accepted that the country information indicates that Indian Malay may face low levels of discrimination attempting to gain entry into the state tertiary system or the civil service but I do not consider that this amounts to either serious harm or significant harm. I have explained to the Tribunal member that real story is different that what it is on the news and what government wants people to know outside Malaysia. I will be targeted once I return to my home country and will be prosecuted against my race and religion. I do wish to return to my home country.

   5. Tribunal member has clearly stated that member accepts that I have genuine fear for my safety but still refused to grant me a visa this is an error in law and jurisdiction. Tribunal member has miss interpret definition of fear and we founded fear along with definition of refugee.

   6. I have personally experienced trouble in my home country and situation is getting worse and child kidnapping, extortion and torture. Authorities have failed to protect as on many occasions I have been sent back even without writing my complaint. I have genuine fear for my life and would like FCC to set up new orders replace old orders.

   7. I would like to advise that I have been victim of Migration Fraud and I have made genuine claim and as I have experienced harm in Malaysia. Please take another look at this matter and set new orders to replace old orders to grant me a visa so that I could protection myself against crimes of race and religion and my human rights.

2. The first three grounds are effectively a narrative of the Tribunal’s decision.

3. The fourth ground appears to be seeking to have the Court conduct a merits review. In judicial review proceedings, it is not for this Court to review the facts and make its own findings. The applicant must identify an error of law or procedure.

4. The fifth ground misstates what the Tribunal found. The Tribunal did not accept that the applicant had genuine concerns, as the Tribunal did not believe him.

5. The sixth ground is again a merits review ground, setting out his position and complaining that the Tribunal did not act upon it.  To the extent that the ground seeks this Court to engage in a merits review of the Tribunal, that is not open to the Court.

6. The seventh ground refers to the alleged migration fraud that I discussed above.  The nature of the fraud alleged in this case did not prevent the Tribunal from properly dealing with the matter. In this case, the applicant had a hearing, and was able to give his version of events to the Tribunal about what had happened when lodging his application form. In any event, the Tribunal rejected the applicant’s claim, independently of the problem with the application form.

7. The applicant lodged a document, on the morning of the hearing, in the form of a written outline, attached to an affidavit.  Paragraphs 6 and 7 of that document, on the third page, are as follows:

   6. I would like to bring into FCC's attention that my visa application with DIBP was lodged by a. fellow name Joe who filled up my application form and I was not given chance to provide all the information and that's the reason information on the original application form was different than my evidence provided at the AAT.

   7. Tribunal did not rely on the information provided verbally and repeatedly requested for supporting evidence to support my claim. I did not have any physical evidence to support my claim. Tribunal claimed that information provided verbally in absence of supporting documents could not be considered as credible information and refused my claim on those basis.

8. These paragraphs also go to the fraud claim, which I have dealt with above. 

9. On the fourth page, paragraphs 1 and 2 state:

   1. I was harmed in my home country and upon return to Malaysia I will have my life danger again and I may be kidnapped, beaten or even forced to convert into Muslim to spare my life.

   2. I strongly believe that AAT has treated me unfairly and misinterpret legislation while deciding on my matter. AAT has made an error in law and declares that following criteria is not met s.36(2)(a), (aa), (b), or (c). Further tribunal claims that Under s.SJ(l), applicant has no well-founded fear. Tribunal also claims that under Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines while deciding on these matter.

10. These paragraphs appear to be generalised claims against the Tribunal, without any specific error being identified.

11. In oral submissions before me, the applicant complained that he had not been told of the importance of obtaining more evidence, such as the police reports.  There is no obligation on the Tribunal to suggest other evidence that the applicant may be able to obtain.  This is not a case where that evidence would, in a practical way, be overwhelming or determinative of any factual issue. 

12. I see no error on the part of the Tribunal in not disclosing what is effectively its thought processes, nor making suggestions to the applicant as to where he may seek further evidence.

13. In the circumstances of this case, I am not persuaded that any of the grounds in the applicant’s application demonstrate grounds for judicial review. Nor am I persuaded that the late filed submissions or oral submissions identify a ground for judicial review. 

14. I therefore dismiss the application.

    [Further argument ensued]

Costs

1. In this matter the applicant has been unsuccessful.  Costs ordinarily follow the event.  The applicant should pay the Minister’s costs.  I find that the amount sought is reasonable (it is less than the scale fee for a one-day hearing in this type of case, even though this case has now had two dates).

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:  

Date:  21 February 2020