CYT16 v Minister for Immigration

[2018] FCCA 2820

FEDERAL CIRCUIT COURT OF AUSTRALIA

CYT16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2820

Catchwords:
MIGRATION – Application for judicial review – Protection (Class XA) visa – whether the Tribunal failed to consider evidence – whether the Tribunal failed to use logical reasoning – impermissible merits review – no error by the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6

Applicant: CYT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2206 of 2016

Judgment of: Judge McNab

Hearing date: 9 July 2018

Date of Last Submission: 9 July 2018

Delivered at: Melbourne

Delivered on: 9 July 2018

REPRESENTATION

Applicant appearing in person

Solicitors for the Respondent: Australian Government Solicitor (Ms. A Briffa)

ORDERS

1. The application filed 6 October 2016 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2206 of 2016

CYT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(DELIVERED EX-TEMPORE – REVISED FROM TRANSCRIPT)

Introduction

1. This matter comes before the Court by an application filed on

   
   

   6 October 2016. The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a delegate of the First Respondent to refuse him a Protection (Class XA) visa.

Grounds of review

1. The Applicant appeared before me today. In response to questions from the Court in relation to the substance of his grounds of appeal, it was clarified that the grounds for judicial review raised are that: 

   (1)the member of the Tribunal failed to consider the reasons that I provided in relation to the danger that I am facing in Malaysia;

   (2)the member of the Tribunal failed to consider all the information I told them and all the evidence that I submitted in relation to my claims; and

   (3)the Tribunal did not take seriously that if I was to go back to Malaysia to live with my wife and daughter, my wife’s family will not allow that and my wife’s brother and father will take me to be killed.

2. Those grounds diverge slightly from the written grounds, which contained errors of expression, but the Court has strived to accurately interpret the grounds of review put forward by the Applicant. In discussions between the Court and the Applicant in relation to the grounds, the Applicant was asked what claims were not considered by the Tribunal. No specific matter was said not to have been considered; however, the Applicant was concerned that the Tribunal had not accepted that he faced serious harm in Malaysia from his wife’s family. He also raised that if he was not to receive a protection visa then his wife will want to divorce him.

3. The Applicant stated that he wished to have more time to bring his wife over from Malaysia in order to prepare for this hearing. He said that he had been told by a lawyer that he would have a better chance to obtain a protection visa if his wife was present at the hearing. The Court was not minded to adjourn the matter for that reason, particularly in light of the fact that the application has been filed in the Court since 6 October 2016. The Applicant has had more than enough time to make whatever arrangements he wished to make in order to obtain legal representation or to have his wife in Australia if he thought that her presence may assist.

4. I accept the submission made by representative of the Minister,

   
   

   Ms Briffa, which was that the presence of the Applicant’s wife was unlikely to have any impact on the decision this Court must make. This is in light of the fact that the Applicant’s wife was not a witness before the Tribunal and her presence at the hearing is not a matter that this Court is required to consider in making a determination.

Background

1. The Applicant is a citizen of Malaysia who arrived in Australia on

   
   

   4 March 2014 on a tourist visa.

2. On 17 April 2014, the Applicant filed an invalid application for a protection visa and subsequently made a valid application for a visa on 1 July 2014. It was the valid visa application that was considered by the delegate and subsequently the Tribunal.

3. On 27 November 2014, the delegate of the Minister refused to grant the visa, and on 20 December 2014, the Applicant applied to the Tribunal for a review of the delegate’s decision.

4. The Applicant appeared before the Tribunal on 20 August 2016 to give evidence and present arguments, and on 6 September 2016, the Tribunal affirmed the delegate’s decision.

Applicant’s protection claims

1. The Tribunal set out verbatim the Applicant’s claims made in his visa application at [10] of its record of decision. The Tribunal also recorded the claims that he made in oral evidence before it at [14]. The Applicant, in his protection visa application and at the hearing before the Tribunal, claimed to fear harm arising from his relationship with his wife. In particular he claimed to fear harm from the wife’s family because he was not born a Muslim, is of Hindu descent, has a Nepalese background and was considered to be an unsuitable marriage partner by the wife’s family.

The Tribunal’s decision

1. The Tribunal accepted that the Applicant married a Muslim woman in June 2013 and they have a daughter. The Tribunal also accepted that the Applicant converted to Islam from Hinduism in July 2012. The Tribunal noted that the Applicant had not claimed that he holds any fear of harm on the grounds of his religious conversion. The Tribunal considered country information to the effect that there was no indication that Islamic converts faced persecution. This was recorded at [20] of the decision, although the Tribunal noted that religious conversion from Islam to other religions tended to face severe stigmatisation in Malaysia.

2. The Tribunal did not consider that the Applicant was at risk of harm from his own family and did not accept the Applicant’s claims to have been threatened or harmed by his wife’s family members in the past. The Tribunal set out in detail the reasons for those findings in detail. There were three key reasons put forward by the Tribunal for not accepting the claims.

   Firstly, there were inconsistencies between the Applicant’s written claims and his oral evidence. At [23], the Tribunal stated:

   For instance, in the visa application, the visa stated that his wife’s family found her a month after when they had run away (the first time); however, at the hearing, the Applicant said her brother found her after four days. As well, at hearing, the Applicant said he reported the attack by a group of men (whom he alleges were linked to the Applicant’s brother) in January 2013, who allegedly pushed him into a drain and warned him against continuing his relationship at the Rawang Police Station. However, in his visa application, he said he “never go to the police because it’s a love issue”.

3. Secondly, the Tribunal considered that the Applicant’s story was internally inconsistent and implausible. Central to this finding of implausibility was that, notwithstanding that the Applicant claimed that the wife’s parents’ did not support the wedding, the Applicant gave evidence that his father-in-law helped organise their wedding, which was held at their house with over 200 guests, and his only concern was about the Applicant’s conversion to Islam. I note that in his submissions made to the Court, the Applicant raised that the issues were not so much at the time of the wedding, but that these difficulties arose upon his wife becoming pregnant. Additionally, the Tribunal noted what it considered to be an inconsistency that, whilst on the one hand, the Applicant has claimed he refuses to give in to his in-laws’ demands to separate from his wife and child, he came to Australia alone. He also gave evidence at the hearing that she had visited him twice, in 2015 and 2016, yet returned to Malaysia, and one of the reasons for her return was that it was too expensive in Australia.

4. Thirdly, the Tribunal considered that the Applicant had raised claims at the hearing that were not included in his visa application.[1] The Tribunal noted that the Applicant raised claims at the hearing that were inconsistent with those disclosed in his application form. For example, in his application form he makes a claim that when his brother-in-law Mohamed (along with six friends) located him and his wife at his friend’s house in Malacca, that Mohamed tried to choke the Applicant, and the Applicant subsequently made a police report. The Tribunal noted that, whilst the Applicant mentions threats and harms from his family on the visa application form, he did not specifically mention Mahomed, and at the hearing he was unable to state his name apart from ‘Mahomed’. Other credibility issues were raised at [26] of the Tribunal decision in relation to the evidence given in relation to what was said to be the Applicant’s father-in-law’s gangs.

   [1] Tribunal Decision [25].

5. At [27] – [28], the Tribunal gave reasons for not accepting the Applicant’s account and raised its concerns about the credibility of the Applicant’s claims, including that the Applicant does not face a real chance of serious harm from the wife’s family members or people associated with her for any reason on return to Malaysia now or in the reasonably foreseeable future, and that his fears of persecution on that basis were not well founded. The Tribunal also dealt with a claim of serious or significant harm on the basis of the Applicant’s Nepalese background at [28].

6. The Tribunal noted that the Applicant had not claimed, and there was nothing to indicate, that Malaysians of Nepalese backgrounds face a real chance of serious harm or real risk of significant harm for reasons of their ethnicity in Malaysia. The Tribunal also found that, given that the Applicant had converted to Islam, and given that the Tribunal had not accepted his claims to have been attacked by Malays linked to his then-girlfriend’s family in the past, the Tribunal found it remote that the Applicant would face serious harm on return to Malaysia from Malays, Malay Muslims or anyone else on the grounds of ethnicity. For those reasons, the Tribunal refused the application.

Consideration

1. Turning to the grounds of review before this Court, in my view, ground one is without substance. The Tribunal set out in detail the Applicant’s claims, both in the written material provided by the Applicant and material raised in oral evidence before the Tribunal. The Tribunal dealt with each claim in a comprehensive and intelligible way. The Tribunal’s credibility findings were made on an assessment of the material before it, and, in my view, there is no indication that there has been a failure to take into account relevant matters or irrelevant matters having been taken into account. The Tribunal’s credibility findings are not affected by illogicality; nor are they apparently unreasonable.

2. In relation to ground two, for the same reason, this ground fails with regard to the Tribunal’s decision, it has taken into account the evidence raised by the Applicant and considered that material and made an assessment as part of its fact-finding exercise. The Applicant is seeking merits review in relation to both grounds, and it would be impermissible for the Court to engage in that process: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6 [48] – [52].

3. Finally, the third ground similarly invites the Court to engage in impermissible merits review. The Tribunal has considered whether the Applicant is at real risk of harm if he was to return to Malaysia and made a specific finding that it did not accept that he faced a genuine fear of persecution or a real chance of serious harm from his wife’s family or people associated with her family. There is no indication that the Tribunal did not treat the Applicant’s claims as serious or that the task of assessing the claims was not taken seriously.

Conclusion

1. For the above reasons, the application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  1 October 2018