Cyo17 v Minister for Immigration

[2019] FCCA 457

FEDERAL CIRCUIT COURT OF AUSTRALIA

CYO17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 457

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal affirming decision of a delegate of the Minister for Immigration and Border Protection not to grant to the Applicant a protection visa – contention that Administrative Appeals Tribunal did not provide the applicant with enough time to produce documents, recklessly made adverse credibility findings without considering all of the evidence, merely confirmed the findings of the delegate and did not consider the correct social group to which the applicant claimed to belong – none of the grounds made out – no jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36

Federal Circuit Court Rules 2001 (Cth)
Migration Regulations 1994 (Cth)

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
CPW16 v Minister for Immigration & Border Protection [2017] FCA 1210
AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Applicant: CYO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2090 of 2017

Judgment of: Judge Dowdy

Hearing dates: 14 March 2018 & 6 April 2018

Delivered at: Sydney

Delivered on: 6 March 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Ms A. Nanson

Solicitors for the First Respondent: Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 3 July 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2090 of 2017

CYO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of Malaysia aged 30 years, having been born on 15 November 1988.

2. By Application filed in this Court on 3 July 2017 he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 7 June 2017 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 23 November 2016 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa). 

Background

1. The Applicant arrived in Australia on 8 June 2016 on an Electronic Travel Authority (Class UD) (Subclass 601) visa. He then applied for the Protection visa on 11 August 2016.

Claims for Protection

1. In his Protection visa application form the Applicant stated that he could speak, read and write the English language, that he did not need an interpreter for an interview, that the ethnic group to which belonged was Indian and that he was of the Hindu religion. In response to questions 88 to 96 in his Protection visa application form, the Applicant advanced verbatim the following claims for protection, amended in minor respects for ease of understanding:

   a)the main reason he left Malaysia was because he had been charged and accused of a crime which he did not commit. He was ambushed on a night where he had gone “chilling out” with some friends and “the cops” found amounts of “drugs and pill”. He parked his car in front of the house of a friend and the cops discovered a Berretta model pistol with no bullets in his car. He had never owned those kinds of things and due to all these matters his friends, he and three other persons were arrested and sentenced to prison, but he wasn’t guilty and eight days later he was “bailed out” with an amount of RM30,000;

   b)if he happened to return to Malaysia the gang which was involved in these crimes “turns out to be one of my friend’s cousin”. The cousin is now looking for the Applicant and threatened him because he thought he was the one who “blow off everything to the cops”. The cousin lost his half of the drugs / pills that night and it happens to be that the Applicant “was at the wrong place, wrong time” and his life is not safe anymore;

   c)the harm he experienced in Malaysia was that several times after he was bailed out from jail, those remaining three friends were still in prison. The cousins of his friends seek revenge on the Applicant, they threatened him many times making chaos in front of his house and threw liquid paint on his car;

   d)he did not seek help in Malaysia, but he was “just bailed with the crime I never convicted”. He is worried about the safety of his family and himself;

   e)he did not try to move to another part of Malaysia because those gangs had wide links in Malaysia and he would be followed wherever he goes there. It is for that reason that he decided to move abroad, away from Malaysia and away from their knowledge of him;

   f)if he returned to Malaysia their grudge of him will never fade and he may be at risk especially because he attempted to relocate to Australia. He is traumatised by the thought of ever bumping into one of them again. They will kill him because they thought he “was the one who blew it off to the cops”;

   g)the authorities in Malaysia will not be able to protect him because he does not want to involve any of the authorities as he has been released from the police department and he is worried for his safety if he ever made reports against the gang; and

   h)he will not be able to relocate within Malaysia because the gang will find him as long as he is there.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of a Protection visa can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Decision of Delegate

1. In her Decision Record the Delegate first found that the Applicant had not claimed to fear harm from Malaysia because of his race, religion, nationality, political opinion or as the member of a particular social group and that he was not a refugee as defined by s.5H(1) of the Migration Act 1958 (Cth) (the Act). The Delegate then proceeded to consider a body of independent country information in relation to the complementary protection criterion and then found at [26] of her Decision Record as follows:

   [26]I note the applicant has outlined his situation in limited detail, and has provided vague and contradictory information. The applicant has not provided any evidence to substantiate his claims regarding the outstanding criminal matters. The applicant stated that he was released on bail, yet he was able to depart the country on a valid passport, which would suggest he was not a person of interest to the authorities.

   (emphasis added)

2. Then at [28] the Delegate found that there was nothing in the evidence to suggest that the Malaysian government would fail to provide the Applicant with the same degree of protection as that of its other nationals and that country information did not indicate that he would not be given state protection if he returned to Malaysia.

3. Accordingly, the Delegate was not satisfied that Australia had protection obligations to the Applicant under s.36 of the Act and cl.866.221 of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations) and refused to grant the Protection visa to the Applicant.

Tribunal Decision

1. The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 1 December 2016 and provided a copy of the Decision Record of the Delegate to the Tribunal at the same time.

2. The Applicant attended a hearing before the Tribunal on 20 March 2017 to give evidence and present arguments with the assistance of an interpreter in the Tamil and English languages.

3. At [13] of its Decision Record the Tribunal recorded the substance of the evidence and material before it, including the oral evidence of the Applicant at the Tribunal hearing.

4. At [15] – [21] of its Decision Record the Tribunal recorded the Applicant’s claims as previously made and then from [22] – [47] the Tribunal recorded the Applicant’s evidence given at the Tribunal hearing in response to questioning by the Tribunal.

5. At [48] – [56] of its Decision Record the Tribunal assessed the claims of the Applicant and at [56] recorded its finding that the internal inconsistencies in the Applicant’s claims and evidence were significant and that the Applicant was not a credible witness.

6. At [56], [66] and [67] the Tribunal found as follows:

   [56]The Tribunal views the above internal inconsistencies and concerns to be significant and as outlined above does not accept the applicant's responses for the inconsistencies. These matters cumulatively lead the Tribunal to find the applicant is not a credible witness.

   …

   [66]The Tribunal rejects the applicant's claims in their entirety and does not accept he has a profile with or is known by the police, authorities, gangs or anyone else for the reasons he claims. It follows it does not accept he came to Australia in June 2016 in fear for the reasons he claims or to protect his dignity, save himself from harm or as he was traumatised or as he could not go anywhere in Malaysia as the police and gangsters would find him.

   [67]On the basis of the credibility findings above, it follows the Tribunal does not accept were the applicant to return to Malaysia now or in the reasonably foreseeable future he will face any of the difficulties he claims for the reasons he claims at the hands of the police, authorities, gangs or gangsters or anyone else. It follows it does not accept the applicant will be imprisoned, sentenced, assaulted, killed, threatened, physically or verbally harmed, traumatised, his family will be threatened or harmed or face any of the difficulties he claims in any manner whatsoever for the reasons he claims.

7. Finally, at [70] – [73] of its Decision Record the Tribunal dealt with and found that the Applicant did not face a real chance of persecution involving serious harm as either a Tamil or a Malaysian of Indian ethnicity, nor would he suffer significant harm on return to Malaysia under the complementary protection criterion.

8. The Tribunal was not satisfied that the Applicant satisfied the Refugees Convention criterion under s.36(2)(a) of the Act or the complementary protection criterion under s.36(2)(aa) and affirmed the decision of the Delegate not to grant the Protection visa to the Applicant.

First Hearing Date

1. On 4 August 2017 in the presence of the Applicant the final hearing of this matter was set down for 14 March 2018. On that date Ms Nanson appeared for the Minister and the Applicant himself did not appear, but a friend appeared on his behalf and tendered a medical certificate which merely said that the Applicant would be unable to attend work from 13 March 2018 to 14 March 2018 inclusive and which certificate was wholly inadequate to justify an adjournment. The Minister asked for dismissal of the Application for absence of appearance under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), but in the result I stood over the final hearing of the matter until 6 April 2018 when the Applicant did appear.

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds appearing in the Application were verbatim as follows:

   1. The Tribunal failed to provide adequate opportunity to the Applicant and this resulted in miscarriage of justice and has vitiated the procedural fairness.

   Particulars

   The Tribunal failed to provide adequate time for furnishing the document in support of his claim. In Para 5 the applicant requested for a month’s time (30 days) to obtain the documents from Malaysia, have it translated and be produced before the Tribunal. The Tribunal granted only 7 days time which is grossly inadequate to obtain documents from Malaysia. This has resulted in denial of opportunity and failure to adhere to the principles of natural justice and the provisions of law resulting in miscarriage of justice.

   2. The Tribunal made jurisdictional error in that it was unreasonable in making adverse credibility findings recklessly without a sound basis by not considering all the information on record available at the time of review before it.

   Particulars

   The applicant gave evidence before the Tribunal in support of his claim regarding various charges in which he was falsely implicated by the police. The Tribunal failed to consider all evidence on record and merely confirmed the delegate findings on the ground of adverse credibility findings as some of these facts were not revealed before the delegate. The Tribunal did not adhere to the principles laid down in in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 at [61] wherein Sackville J observed that evidence by the protection visa applicant may be “given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision maker/investigator” and noted that “even applicants with a genuine fear of prosecution may not present as models of consistency or transparent veracity”. It is submitted that while assessing applicant’s creditability Tribunal did not have due regard to these aspects in the present case.

   3. The Tribunal failed to consider the correct social group to which the applicant belongs namely being an (i) ethnic Indian of Tamil origin (ii) Hindu, middle aged male (iii) falsely implicated in criminal cases by corrupt police (iv) failure of state to protect him against gangsters (v) failed asylum seeker who returns to Malaysia after criticising that the ruling Government and police in Malaysia are ineffective and corrupt.

   Particulars

   The Tribunal and the delegate failed to consider the correct social group (PSG) to which the applicant belongs. They have considered only some of the characteristics of the social group but failed to consider the other aspects of the particular social group like failed asylum seeker who had blamed the Government and police of callousness and corrupt practice.

Consideration

Ground 1

1. This Ground complains that the Tribunal granted him only seven days within which to obtain translated documents from Malaysia, and the facts relevant to the Ground are as follows.

2. At the Tribunal hearing the Applicant made claims for the first time that his motor vehicle was in the custody of a police officer who called him and told him that if he wanted his car back he would need to pay money. The Applicant said that he was “slapped and punched when he initially refused to pay the money” but he went down to the police station a little later and paid RM2,000 to the police: see [32] of the Decision Record of the Tribunal.

3. At [33] of its Decision Record the Tribunal records questioning the Applicant about why there had been no mention in his Protection visa application about being slapped and punched and paying RM2,000 to the police to get his car back, and the Applicant asked for time to obtain evidence in support of these claims. The Applicant asked for a month to obtain documents, and at [5] the Tribunal recorded as follows:

   [5]The applicant was given until 27 March 2017 to provide untranslated police reports as to the difficulties he faced. He was given until 29 March 2017 to provide the translated documents. The applicant requested a month to obtain the documents. However, the Tribunal advised it considered the time given as reasonable as his application had been live for seven months and he had been put on notice in the Department decision of 23 November 2016 as to the need to substantiate his claims with evidence.

4. The Applicant, on a date for which there is no clear evidence but was probably 24 March 2017, provided to the Tribunal a copy of an Order in Malaysian under s.413 of the Malaysian Criminal Acts Code issued out of the Telok Datok Magistrates’ Court dated 24 May 2016 and a certified English translation of that Order dated 23 March 2017. He also provided a copy of a Police Report from Selangor Police Station in Malaysian, together with a certified English translation of that document also dated 23 March 2017. The contents and substance of these two documents were set out by the Tribunal in the fifth and sixth bullet points to [13] of its Decision Record and are again referred to at [60], as follows:

   [60] In making this finding the Tribunal has also considered the two police reports submitted by the applicant after the hearing but on the basis of the applicant's complete lack of credibility and on the prevalence of document fraud in Malaysia² places no weight on these documents as evidence of his claims.

   2. The DFAT Malaysia Report states, at paragraph 5.28, that it is possible for individuals to 'rent' or 'buy' another person's identity and to then utilise that person's MyKad card to obtain other documents fraudulently, including passports. While it would be possible to fraudulently obtain a MyKad card, DFAT assesses it is relatively rare given personal identity and other records are cross-checked by the Ministry for Home Affairs. Instances of fraud are investigated by the Royal Malaysian Police. However, the Tribunal also notes the prevalence of passport and other document fraud throughout Malaysia. The use of false Malaysian passports is frequent, including both the use of falsely created passports and of Malaysian passports genuinely issued to applicants who have provided fraudulent supporting documentation with their passport application (see, for example, intellasia.net, 27 August 2008, "More Malaysians with fake passports arrested in Thailand", accessed via United States Embassy Kuala Lumpur, 2 March 2009, "Malaysia Fraud Summary (Sept 2008 - Feb 2009), accessed via httos://dazzlepod.com/cable/09KUALALUMPUR150/: & The New Zealand Herald, 9 July 2012 , "Malaysian passport scam tests NZ border", accessed via http :// id=1 &objectid=1 081831 3).

1. I note that in my view the Tribunal was legally entitled to take the view expressed at [60] of its Decision Record, in particular because it had come to strongly adverse views concerning the credibility of the Applicant’s claims and central contentions. As Gleeson CJ said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [12]:

   [12]… It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.

2. The Applicant now complains in Ground 1 that the Tribunal only granted him seven days to obtain documents from Malaysia, and thereby denied him natural justice and procedural fairness. In my view Ground 1 fails to establish that the decision of the Tribunal is affected by jurisdictional error for the following reasons.

3. First, the Applicant had told the Tribunal that he had read the Decision Record of the Delegate (see [41] of the Decision Record of the Tribunal) which had pointed out to the Applicant that he had “not provided any evidence to substantiate his claims regarding the outstanding criminal matters”: see [6] above. The Tribunal was entitled to take the view that the Applicant should have understood the importance of corroborating documentary evidence by the time of the Tribunal hearing.

4. Second, there is no identification or evidence of any other documents which the Applicant needed to obtain from Malaysia to submit to the Tribunal. It seems clear that the documents in Malaysian which he had translated in Australia on 23 March 2017 were already in Australia, unless they had been electronically transmitted to him from Malaysia between 20 March 2017 and their translation on 23 March 2017. There is no evidence that any other documents could not have been forwarded to Australia either before 29 March 2017 or the date of the Decision Record of 7 June 2017. The Applicant did in fact submit documents to the Tribunal which the Tribunal considered and took into account and he has failed to identify any other documents which he wished to submit and for which he required further time to make provision.

5. In my view the time given by the Tribunal to the Applicant to enable him to provide further documents was not legally unreasonable and in any event in the result did not cause the Applicant any practical injustice.

6. Accordingly, in my view Ground 1 is not made out.

Ground 2

1. Ground 2 in substance contends that:

   a)the Tribunal made reckless adverse credibility findings;

   b)without considering all the evidence; and

   c)merely confirmed the Delegate’s findings.

2. In my view, none of these contentions are made out.

3. It is of course the case that credibility findings of the Tribunal are not beyond judicial scrutiny. Credibility findings remain “findings of fact the same as any other fact”: CPW16 v Minister for Immigration & Border Protection [2017] FCA 1210 at [15] per Flick J. However, in this case I do not consider that the findings of the Tribunal in relation to the Applicant’s credit, or otherwise, could be said to be unreasonable, without a logical, rational or probative basis or founded on objectively minor matters. Nor could they be regarded as “blanket, reflex or exaggerated adverse credit findings”: AZU15 v Minister for Immigration & Border Protection (2016) 240 FCR 143 per Allsop CJ, Kenny and Bromwich JJ at 145 [11]. Rather, they seem to me to be findings which were legally open to the Tribunal on the material before it. In my view the Tribunal has performed its statutory task of undertaking a review by reference to the merits of the claims made by the Applicant before the Tribunal, but in the result found against him based on credibility findings which in the circumstances were open to it. The Decision Record of the Tribunal appears to constitute a comprehensive, detailed and reasoned consideration of the Applicant’s claims and it is certainly not a mere confirmation of the Delegate’s decision.

4. Finally, the Tribunal was conscious of the type of consideration and approach noted as important by Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 239 – 240 [61], as is evident from [58] of the Decision Record where it stated:

   [58]In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked. It is also sensitive to the various cultural differences that can impact on an applicant's responses to questioning, as discussed in the Tribunal's 'Guidance on the Assessment of Credibility'. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims.

5. Ground 2 is not made out.

Ground 3

1. The simple fact of the matter is that the Applicant never at any point claimed to belong to a social group with the conjunctive and cumulative features and characteristics asserted in this Ground. No such claim was made in his Protection visa application form and the Delegate found at [20] of her Decision Record that the Applicant had not claimed to fear harm as a member of a particular social group: see [6] above.

2. However, the Applicant gave to the Tribunal at the hearing a number of documents which the Tribunal described at bullet point 3 of [13] of its Decision Record, as follows:

   [13]…     

   •Independent information submitted at the Tribunal hearing as to racism in Malaysia; and particularly directed towards Malaysians of Indian descent, including at University. Also submitted was a report from 2009 as to a list of the killed and abused Malaysian Indians by police. Information was also submitted as to the lack of ethnic harmony in Malaysia.

3. The submission of those documents obviously led the Tribunal to consider that the Applicant was making a further claim that he might suffer harm in Malaysia as an Indian of Tamil ethnicity, and accordingly it referred to and considered such a claim at [68] – [73] of its Decision Record, including the consideration of independent country information relating to both Indian Malaysians and Indian Malaysians of Tamil ethnicity.

4. Ultimately, at [73] of its Decision Record the Tribunal expressed its view that it was not satisfied that there was a real risk that the Applicant would suffer significant harm on return to Malaysia on the basis that he was a Tamil, a Malaysian of Indian ethnicity, an Indian Malaysian or a member of a minority group in Malaysia. The Applicant has not established that he made any claim to the Tribunal that he should be considered as a middle aged Hindu or as a failed asylum seeker. The Tribunal rejected the Applicant’s claims root and branch and had made findings of greater generality that he would not suffer persecution or significant harm in Malaysia for belonging to any “minority group” and that if he returned to Malaysia he would not “now or in the reasonably foreseeable future...face any of the difficulties he claims for the reasons he claims at the hands of the police, authorities, gangs, or gangsters or anyone else… in any manner whatsoever for the reasons he claims”: see [67] of the Decision Record.

5. The Tribunal otherwise considered his claims about corrupt police and his inability to find state protection in Malaysia and rejected those claims.

6. Ground 3 also fails to establish that the decision of the Tribunal is affected by jurisdictional error.

Conclusion

1. The Applicant has failed to establish jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  6 March 2019