Dba17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1418
•24 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DBA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1418
File number(s): SYG 2140 of 2017 Judgment of: JUDG STREET Date of judgment: 24 June 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection Visa Application – Malaysian applicant of Tamil ethnicity – whether there was a breach of s 359AA of the Migration Act 1958 (Cth) – whether the Tribunal failed to consider the applicant’s social group – no jurisdictional error made out – application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 359A, 359AA, 424AA , 425 and 476. Number of paragraphs: 20 Date of hearing: 24 June 2021 Place: Sydney Solicitors for the applicant: In person. Solicitors for the respondent: Mr J Pipolo, Mills Oakley ORDERS
SYG 2140 of 2017 BETWEEN: DBA17
Applicant
AND: ADMINSTRATIVE APPEALS TRIBUNAL
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
ORDER MADE BY:
JUDG STREET
DATE OF ORDER:
24 JUNE 2021
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.
REASONS FOR JUDGMENT
JUDGE STREET:
BACKGROUND
This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 14 June 2017, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a protection visa (“the Visa”).
The applicant was found to be a citizen of Malaysia and his claims were assessed against that country. The applicant was found to be of Tamil descent and arrived in Australia on 5 March 2016 as the holder of a Subclass 601 (Electronic Travel Authority) visa.
On 31 May 2016, the applicant lodged an application for a protection visa. The applicant claimed to fear harm by reason of his Tamil ethnicity and the favouring of the Malay community. The applicant also claimed that he attended a protest held by “INDRAF” in November 2007 and became a member. The applicant claimed that he later joined the opposition and attended the Bersih rally in August 2015. The applicant claimed that he was arrested at that rally then repeatedly detained and tortured by the police. The applicant alleged that the police threatened him with false cases. The applicant claimed that he participated in political movements against the ruling party and that if he returned he would be imprisoned, tortured and potentially killed by the police or government hired hooligans.
On 26 July 2016, the delegate found the applicant failed to meet the criteria for a protection visa. On 16 August 2016, the applicant applied to the Tribunal for review. On 6 June 2017, the applicant attended a hearing before the Tribunal to give evidence and present arguments. The applicant changed his claims in relation to involvement with Hindraf in 2008 and that he was not involved in protests in 2007. The applicant alleged that he was detained with others at a roadblock in 2012 and kept in a police truck for 4 hours before paying a bribe to be released. The applicant alleged that after this he was stopped 2 or 3 times and beaten on one of those occasions by the police. The applicant alleged people come to his home and threatened his family because of his involvement with Hindraf.
THE TRIBUNAL DECISION
The Tribunal accepted that the applicant was a supporter of Hindraf and was involved in some local Hindraf activities and accepted that, on one occasion, he was stopped at a roadblock and that there was an incident in 2012 where he was kept in a police truck. The Tribunal did not accept the applicant was involved in any high-level organisation or that he attended rallies or political gatherings for Hindraf or Bersih. Other than the finding referred to, the Tribunal did not accept that the applicant was arrested on suspicion of attending a Bersih rally or that he has been threatened or harmed since 2008.
The Tribunal identified the inconsistencies in relation to the applicant’s accounts of the events and referred to putting those inconsistencies to the applicant pursuant to section s 424AA of the Act. The Tribunal did not accept the applicant’s explanation for the inconsistencies.
The Tribunal also made adverse findings taking into account the applicant’s knowledge about Hindraf. The Tribunal took into account in that regard, the inconsistency in respect of his account of the key events fundamental to his claims.
The Tribunal was not satisfied that the applicant attended any political rallies in Malaysia or that he was arrested, tortured and threatened because of political involvement. The Tribunal taking into account independent country information did not accept there was a real chance of serious harm on the basis of being discriminated against as an Indian Malaysian. The Tribunal took into account county information and found that the low level discrimination as a Tamil would not amount to serious harm. The Tribunal found that the applicant did not have a well-founded fear of persecution. The Tribunal found that the applicant did not meet the refugee criterion under s 36(2)(a) of the Act and found the applicant did not meet the complementary criterion under s 36(2)(aa) of the Act and affirmed the decision under review.
CONSIDERATION
These proceedings were commenced on 7 July 2017. On 5 October 2017, a registrar made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed. The matter remained apparently in the National Migration Docket and was not transferred to the docket of this Court until May 2021. On 12 May 2021, a registrar made orders fixing the matter for hearing today.
At the commencement of the hearing, the Court explained to the applicant the nature of the hearing. The applicant confirmed that he understood the explanation given by the Court. The applicant made reference to the events allegedly occurring in November 2015. The Tribunal made adverse credibility findings in respect of the applicant’s claims in that regard.
The adverse credibility findings by the Tribunal were open for the reasons given by the Tribunal in paragraphs 14 to 18 of their decision, being the inconsistencies in respect of the applicant’s claims. The Tribunal did not accept the applicant’s explanation for the inconsistencies. The Tribunal also took into account on the adverse credibility findings, the applicant’s limited knowledge about Hindraf. The applicant’s disagreement with the adverse findings does not identify any relevant error.
The applicant also referred to recent events that have occurred in Malaysia. Those recent events are not relevant to the hearing before this Court and cannot establish any relevant error by the Tribunal. The applicant’s submissions otherwise invited the Court to engage in impermissible merits review. No jurisdictional error arises by reason of the applicant’s oral submissions.
THE GROUNDS
The ground in the application are as follows:
Ground One
The Tribunal made jurisdictional error in that it did not provide "clear particulars" as required under section 424AA of the Migration Act. Further the Tribunal failed to advise the applicant that he may seek additional time to comment on or respond to the information as required under section 424AA (1) (b)(iii).
Particulars
The Tribunal at the time of hearing failed to provide "clear particulars" as required under law in relation to the inconsistency in evidence. In a matter related to disclosure under Sec 424A (similar to 424AA) Flick J in SZNKO Vs Minister Of Immigration & Citizenship & Anor (2010) 184 FCR 505; [2010] FCA 297 at [23] states to the effect that information "cannot in all cases be clinically divorced from the context in which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case". It was pointed out that his Honour suggested that s.424A requires the disclosure "of so much as to ensure that the opportunity to comment... or respond.. is meaningful' (at [23]) and it is submitted that no such meaningful information was provided to the applicant.
The Tribunal itself observes in paragraph 16 that "Even allowing for nervousness, confusion of dates and tension" --- which indicates that the applicant was tense and nervous at the time of hearing. This being the case the Tribunal should have advised that applicant that he can take additional time or seek an adjournment to-reply to the adverse information put to him under Sec 424AA. The Tribunal's failure to provide the advice to the applicant that he had an opportunity to seek additional time amounted to miscarriage of justice.
Ground Two
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 (ii) Participated is several rallies and actions against the Government (iii) failure of police to take action against criminals (iv) failed asylum seeker who returns to Malaysia after stating and demonstrating that the ruling Government and police in Malaysia are inffective 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.
GROUND 1
The information put to the applicant were inconsistencies and credibility concerns that were not information enlivening any obligation under s 359A of the Act. The applicant has not identified any information that required the Tribunal to take steps under s 359A of the Act. Further, in the absence of a transcript this Ground cannot be made out. The applicant was given an opportunity to put on evidence and did not do so. Indeed, the Court accepts that given the assertion by the Tribunal of compliance within s 424AA of the Act, the inference should be drawn that the applicant was given an opportunity to seek additional time to respond.
On the face of the material before the Court the applicant had a real and meaningful hearing consistent with s 425 of the Act. There is no evidence that the applicant requested an adjournment or additional time to respond or that the applicant took any steps in the 8 days after the hearing.
No jurisdictional error is made out as alleged in Ground 1.
GROUND 2
The Court has no power to review the decision of the delegate. The Tribunal expressly dealt with the applicant’s claim to fear harm as a Tamil and Indian Malaysian in paragraphs 25 to 27 as well as paragraph 32 of its decision. There was no claim by the applicant to fear harm as a member of a social group and no such claim fairly arose on the material before the Tribunal.
Further, no claim was advanced by the applicant that he feared harm as a Hindu middle-aged male and no such claim fairly arose on the material before the Tribunal. The Tribunal rejected the applicant’s claim to have attend rallies for either Hindraf or Bersih or that the applicant was arrested or threatened at his home. These adverse factual findings reject the premise of the asserted social groups concerning rallies and action against the Government. No such social group claim was advanced by the applicant to the Tribunal and no such claim fairly arose on the material before the Tribunal. That adverse finding also means that the applicant was not a member of a social group of failed asylum seekers who had denounced the Government. Further, the applicant never advanced such a claim and no such claim fairly arose on the material before the Tribunal.
The failure of police to take action does not identify any social group and no such social group claim was advanced by the applicant or fairly arose on the material before the Tribunal. As no such social group claims were advanced or clearly arose on the material before the Tribunal, no jurisdictional error is made out by Ground 2.
No jurisdictional error has been made out. Accordingly, the application is dismissed.
I certify that the preceding twenty (20) paragraphs are a true copy of the settled transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 24 June 2021 and the parties were sent a sealed copy of the Court’s orders. Associate:
Dated: 23 September 2021
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