DCA18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1310
•5 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DCA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1310
File number: MLG 1670 of 2018 Judgment of: JUDGE FORBES Date of judgment: 5 December 2024 Catchwords: MIGRATION – protection visa – application for judicial review of decision of Administrative Appeals Tribunal not to grant visa - claim of involvement with Malaysian gang members and illicit drug trafficking - whether Malaysian police and authorities can provide adequate protection - whether applicant a person of interest to authorities - where Tribunal found fear of persecution not well-founded - whether reasons of Tribunal internally incoherent - whether reasons legally unreasonable - reasons ambiguous but no jurisdictional error established Legislation: Migration Act 1958 (Cth) s 36, 65 Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
Collector of Customs v Pozzolanic (1993) 43 FCR 280
DFB16 v Minister for Immigration and Border Protection [2021] FCA 113
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of hearing: 21 November 2024 Place: Melbourne Counsel for the Applicant: Mr Aleksov Solicitor for the Applicant: WLW Migration Lawyers Counsel for the Respondents: Mr Barrington Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 1670 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DCA18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
5 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Applicant’s amended application for judicial review filed 25 October 2024 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
By an amended application dated 25 October 2024 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 21 May 2018. In its decision, the Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a Protection (subclass 866) visa pursuant to s 65 of the Migration Act 1958 (Cth) (the Act).
One of the applicant’s claims was that he feared being returned to Malaysia because the Malaysian police and other authorities would be unable to provide him with adequate protection from gang members with whom he previously associated. The applicant claimed to have been unwittingly involved in the trafficking of illicit drugs by the “3 Lines” gang and fears that the police would apprehend and punish him for his involvement in illegal drug activities.
The Tribunal found that the applicant has never been a person of interest to the authorities and that it was open to him to avail himself of effective protection measures should he face being threatened by any member of the gang. For reasons which will be discussed, the Tribunal found that the applicant’s fear of persecution or punishment is not consistent with country information, which indicates that Malaysia has a fair and effective police force and judiciary.
The Tribunal found that the applicant does not have a well-founded fear of persecution based on his claims regarding gang violence and membership.
The applicant contends that the Tribunal’s reasons are internally incoherent and contain unreconciled inconsistency. The applicant submits that the Tribunal’s pathway of reasoning reveals illogicality, irrationality or legal unreasonableness and thus jurisdictional error.
In short, the applicant contends that on a fair and proper reading of the Tribunal’s reasons, the Tribunal’s finding at [74] that “[…] there is no evidence that the applicant has breached the law” cannot logically sit with the Tribunal’s findings at [59] and [66] regarding the applicant’s involvement in illicit drug trafficking.
For the reasons which follow, while I accept that the Tribunal’s reasons are ambiguous, I am not persuaded that they involve illogicality. Properly read, the Tribunal was in my view referring to the fact that there was no evidence before the Tribunal that the applicant had breached the law. That finding was open to the Tribunal and falls short of the threshold for “extreme illogicality or irrationality” which must be met to establish jurisdictional error.
The application should be dismissed.
BACKGROUND
The applicant is a citizen of Malaysia. He arrived in Australia on 12 August 2016 on a visitor visa.
On 26 October 2016, the applicant applied for a protection visa. The applicant’s claims for protection can be summarised as follows:
(a)the applicant left Malaysia because he was fleeing members from the “3 Lines” gang on account of a drug exchange in which the applicant was involved. He was falsely accused of stealing drug money and as a result gangsters had been threatening him with harm, unless he returns the money;
(b)his co-offender was physically assaulted and hospitalised. The applicant claims he was beaten as well in spite of his pleas. He also fears for his family;
(c)the applicant did not seek help after the harm because he was afraid of the gang leader and group members. He also fears that the police would apprehend and punish him for his involvement in illegal drug activities;
(d)the applicant fled to Singapore but the gang located him and asked that he return, otherwise a bag of drugs would be placed in his motorcycle;
(e)the gang has political support; even a high ranking police officer has connections with the gang; and
(f)the applicant fears that since the drug deal went badly, the 3 Lines gang members will hunt down the applicant to kill him.
On 27 April 2017, the delegate refused to grant the applicant the visa.
Relevantly, the delegate gave extensive consideration to the applicant’s claim that Malaysian authorities would be unable to provide him with protection due to their connections with the 3 Lines criminal network. Based on independent country information, the delegate found that Malaysia is willing and able to discharge its obligation to protect its citizens, including the applicant, from harm.
Specifically, in relation to the applicant’s fear of the police and authorities due to his own conduct as a member of the gang, the delegate found:
“In relation to the claims that he would be punished by the authorities for his involvement in drug activities, there is no evidence before me to indicate that the criminal law he has allegedly breached targets or applies to a particular section of the population, nor is there any evidence that there is a selective enforcement of a law of general application. As outlined in the applicant’s account, the applicant is fearing prosecution or punishment for a criminal offence and according to country information above, Malaysia has a fair and effective judiciary system and it is open to the applicant to seek legal representation to defend himself.”[1]
[1] Court Book (CB) 54
As will be explained later in these reasons, the applicant submits that this finding of the delegate is relevant to the illogicality argument. It is common ground that the delegate’s decision record was before the Tribunal and was a matter considered by it. The applicant submits that this paragraph of the delegate’s decision acknowledges that the criminal law of Malaysia is a law of general application and records the applicant’s belief that he may have committed an offence under that law.
On 29 April 2017, the applicant applied for merits review of the delegate’s decision.
The Tribunal
On 28 September 2017 the applicant attended a hearing before the Tribunal at which he provided oral evidence. He subsequently provided further documentation after the hearing, but no documents to support his claims of involvement in a drug exchange, threats from the gang of which he was a member or investigations of his involvement in the gang’s activities.
In his oral evidence to the Tribunal, the applicant said that in or about 2011 he commenced work for a gang known as the “3 Lines” delivering motorcycle parts[2]. He alleged that in or about 2014 or 2015 he made deliveries for the gang across the Thai border with a friend. There, he says that they were attacked and beaten and that during the attack a bag containing drugs was taken from him by bandits. The applicant was not able to inform the Tribunal as to the type of drug that was stolen or the identity of the attackers[3].
[2] Tribunal’s reasons at [28]
[3] Tribunal’s reasons at [29]
On 21 May 2018, the Tribunal affirmed the delegate’s decision[4].
[4] CB 86-99
The Tribunal found that the applicant was not able to provide any evidence of a police investigation in relation to the attack. The applicant was not able to say that he had been investigated by the police or that he faced criminal charges as a result of having carried and transported the bag. The Tribunal found that there was no official investigation into the attack, that the applicant had not been charged in relation to the incident and that he was not a person of interest to the police[5].
[5] Tribunal’s reasons [31]
In its reasons, the Tribunal records that it discussed with the applicant information contained in the 2016 DFAT Country Information Report Malaysia. In particular, the Tribunal discussed and considered those parts of the 2016 DFAT Report which dealt with gang activity and the effectiveness of the Malaysian police and judicial system.
Specifically, and consistent with the 2016 DFAT Report, the Tribunal found that the Malaysian police are a professional and effective force who generally investigate crimes. Although there is some evidence of corruption, the Tribunal found that Malaysia has a working criminal law and legal system which provides reasonably effective and impartial police and that all persons are equal before the law and entitled to protection. The Tribunal accepted country information that Malaysia has a functioning police force and an independent judicial system where defendants are presumed innocent until proven guilty[6].
[6] Tribunal’s reasons at [45]-[49]
At [56] of its decision record the Tribunal noted the applicant’s claim that if he was to return to Malaysia he will be harmed or killed by gang members and that authorities are unable to provide him with adequate protection. At [58] the Tribunal noted the applicant’s claim that on occasion he unwittingly couriered illicit drugs when he was transporting motorcycle parts between Thailand and Malaysia on behalf of the 3 Line gang. At [57] the Tribunal noted the applicant’s claim that he did not go to the police because he believes they have connections with the gang.
At [59] of its reasons the Tribunal found:
“[59] Despite the lack of documentary or other evidence, on balance, the Tribunal has provided the applicant the benefit of the doubt and accepts the claims that the applicant belonging to a gang called 3 Line gang and that he had been involved in illicit drug trafficking; that the drugs was stolen by a rival group; that the applicant was harmed along with his co-offender.”
After considering country information regarding the 3 Line gang and its alleged association with high-ranking party and government officials, the Tribunal continued from [63] as follows:
“[63] Notwithstanding the country information which goes some way to support the applicant’s claims and that there is a new government, the Tribunal does not accept that the applicant is a person of interest to the leaders or ‘father’ of the Three Line. He provided evidence that he was able to travel between Singapore, Indonesia and Thailand in 2016 and that the [sic] returned to Malaysia to discuss whether he was still a person of interest to the gang or anyone associated with them in power but could not find anyone. It was open to him to depart from Singapore but instead he returned to Malaysia to depart via Kuala Lumpur. Neither was the applicant stopped by the authorities further indicating that he was not a person of interest to the authorities.
[64] While the Tribunal accepts that the applicant and his co-offender was accused by a more senior member of the group within Three Line in helping to orchestrate the matter, that they were further harmed by this leader and others and they demanded him repay the matter, the applicant’s behaviour indicates that he moved to Singapore to work lawfully and disassociated himself from the gang and his travel history further indicates that he was able to return to Malaysia without being harmed and he believed he was no longer a person of great interest to them. It is more likely that the gang accepted the applicant had not stolen the drugs or orchestrated the theft and had punished the applicant and his co-offender for failing to carry out their job. To this extent the Tribunal finds that the applicant had exaggerated his claims about being threatened as a collaborator with a rival group and his fears in seeking out the police assistance.
[65] Accordingly, the Tribunal finds that the applicant has [sic] does not have an urgent or deeply fear of returning to Malaysia arising from these claims about gang violence if he were to return to Malaysia.
[66] However, on balance, the Tribunal accepts that the applicant has been threatened in the past as a member of a criminal organisation involved in drug and other illicit trade, if the applicant were to return to Malaysia in the reasonably foreseeable future; that in returning to Malaysia there is a chance or risk of the threats continuing; and that the harm he has a chance of encountering will involve significant physical ill-treatment.”
The Tribunal found that the applicant had never been a person of interest to the authorities despite his claim that he had unwittingly ferried drugs between the Thai and Malaysian borders. For that reason, the Tribunal found that it was open to the applicant to avail himself of protective measures should he face being threatened by any member of the gang[7].
[7] Tribunal’s reasons at [69]
In reaching its finding that the applicant did not have a well-founded fear of persecution and did not satisfy the refugee criteria in s 36(2)(a) of the Act, the Tribunal found:
“[74] In relation to the applicants [sic] claim that he would be punished by the authorities as a result of his involvement in drug activities. It was his evidence that he was not aware of what was in the bag. He believed that he was transporting motorcycle parts. As such there is no evidence that he is a person of interest to the police or that he has been charged with any offence. In addition there is no evidence that the applicant has breached the law. The applicant’s fear of being prosecution [sic] or punishment is not consistent with the country information, which indicates that Malaysia has a fair and effective police force and judiciary.
[75] Therefore based on the independent country information, the Tribunal finds that Malaysia is willing and able to discharge its obligations to protect citizens, including the applicant, from harm. As such the Tribunal finds that the applicant would not suffer significant harm upon his return to Malaysia.”
The applicant was also found not to have met the complementary criteria for protection under s 36(2)(aa).
Judicial review
On 13 June 2018, the applicant applied for judicial review of the Tribunal’s decision.
On 25 October 2024 the applicant filed an amended application which sought to impugn the Tribunal’s decision on a single ground, namely:
8.The Tribunal’s decision is affected by illogicality, irrationality, or legal unreasonableness.
Particulars
The Member stated at [74] “there is no evidence that the applicant has breached the law”, which is incompatible with the findings at [59] and [66], where it was concluded that the applicant had engaged in illicit conduct.
Prior to the hearing both the applicant and the Minister’s representative filed concise written submissions. Both parties were represented by counsel. Mr Aleksov appeared on behalf of the applicant and Mr Barrington represented the Minister.
Applicant’s submissions
In his oral address to the Court, Mr Aleksov commenced by highlighting the potential grave consequences for the applicant if he was removed from Australia on a decision which contains judicial error. He informed the court that Malaysia has a particularly strong stance in relation to drug-related crime and that the government has sanctioned capital punishment.
Counsel submitted that the Tribunal’s finding that there was “no evidence that the applicant has breached the law” is untenable and cannot be squared against the Tribunal’s acceptance at [59] that the applicant had belonged to the 3 Line gang and that he had been involved in illicit drug trafficking.
Mr Aleksov submitted that there were only two ways of reading paragraph [59] of the Tribunal’s reasons, both of which result in the conclusion that the applicant has been found to have engaged in illegal activity. First, he submitted that one could read the Tribunal’s finding to mean that the applicant had been involved in a gang activity described as “illicit drug trafficking”, that is the applicant was involved in the illicit (i.e. illegal) drug trafficking activities of the gang, even if unwittingly. Alternatively, the paragraph could be read as a finding that the applicant himself had been engaged in the trafficking of illicit drugs. The applicant submits that on either alternative reading, the word “illicit” must be given its ordinary meaning as a synonym for “illegal”.
Counsel submitted that on any reading the substance of the Tribunal’s finding in [59] is that the applicant has done something illegal. That is, the Tribunal has accepted facts which, giving the applicant the benefit of the doubt, resulted in a conclusion that he has been involved in illegal activity.
Mr Aleksov submits that it is not to the point that involvement in the drug activity was unwitting - it is illicit or illegal activity on any view. In the absence of evidence regarding the operation of the Malaysian criminal code, Mr Aleksov submitted that the Tribunal could not have made a finding about whether unwitting involvement was or was not a breach of the law.
Counsel also drew the Court’s attention to paragraphs [64]-[66] of the Tribunal’s reasons and submitted that those paragraphs reinforce the Tribunal’s finding that the applicant had been a member of the gang which had been involved in illegal drug activity.
It is submitted that the Tribunal’s blunt finding that there is “no evidence that the applicant has breached the law” must be wrong and clearly an error which is jurisdictional.
Mr Aleksov also added that the illegality of involvement in drug trafficking activity (whether unwitting or otherwise) is plain when one has proper regard to the 2016 DFAT Report. In that country information, which was part of the material before the Tribunal, DFAT describes drug trafficking as part of the high-level crime engaged in by illegal gangs and their members[8]. It notes that victims of gang-related crimes do not generally report to law enforcement.
[8] 2016 DFAT Report on Malaysia at [3.78]
The DFAT Report also reports on extrajudicial killings by police and notes the majority of victims were involved in criminal syndicates or serious crimes, particularly drug trafficking. It notes that Malaysian law accommodates the use of a high level of force, particularly against criminal gangs, and that investigation into the use of deadly force rarely occurs[9]. Furthermore, the DFAT Report confirms that capital punishment applies to trafficking in dangerous drugs and that the death penalty is most commonly applied in cases of drug trafficking and premeditated murder[10].
[9] 2016 DFAT Report on Malaysia at [4.1]
[10] 2016 DFAT Report on Malaysia at [4.10]
Mr Aleksov submitted that the DFAT country information reinforces that drug trafficking is a very serious issue and, in terms of punishment, it is regarded as the apex offence in Malaysia. It is submitted that based on that information, a necessary inference arises that direct or indirect involvement in that activity would itself be regarded as an offence, absent evidence to the contrary.
In his reply address, Counsel also sought to rely upon findings made by a delegate. The delegate’s decision to reject the visa and the record of its reasons were also part of the material before the Tribunal. Mr Aleksov submitted that the following finding by the delegate[11] constitutes evidence that the applicant had breached the law or reasonably believed that he had done so:
“In relation to the claims that he would be punished by the authorities for his involvement in drug activities, there is no evidence before me to indicate that the criminal law he has allegedly breached targets or applies to a particular section of the population, nor is there any evidence that there is selective enforcement of the law of general application. As outlined in the applicant’s account, the applicant is fearing prosecution or punishment for a criminal offence and according to country information above, Malaysia has a fair and effective judiciary system and it is open to the applicant to seek legal representation to defend himself”.
[11] CB 54
Counsel submits that the delegate’s reasons constitute evidence that what the applicant did, albeit unwittingly, was criminal. Those reasons were before the Tribunal. Accordingly, the Tribunal’s finding at [74] that there was no evidence that the applicant had breached the law must be incorrect.
Minister’s submissions
The Minister properly concedes that there is some ambiguity in the Tribunal’s finding at [74] but submits that the claim of illogicality or irrationality is based on an incorrect reading of the paragraph and the Tribunal’s reasons as a whole.
The Minister submits that there are a number of plausible constructions of the words “no evidence that the applicant has breached the law”. Contrary to the applicant’s submissions those plausible constructions do not involve illogical reasoning or result from internal incoherence.
The Minister submits that the following constructions are open on a fair reading of [74]:
(a)that there was no evidence before the Tribunal that the applicant’s unwitting involvement in trafficking illicit drugs was a breach of the law;
(b)alternatively, the Malaysian police had no evidence that the applicant had breached the law; and
(c)alternatively, there is no evidence before the Tribunal that the applicant had otherwise breached the law.
Mr Barrington on behalf of the Minister submitted that the only finding regarding the applicant’s involvement in drug trafficking by the gang was that it was unwitting. Paragraph [74] of the Tribunal’s reasons specifically notes that the applicant “was not aware of what was in the bag” and that “he believed that he was transporting motorcycle parts”. Accordingly, it is submitted that the more obvious and plain reading of paragraph [74] is that there was no evidence before the Tribunal that such unwitting involvement in drug trafficking was a breach of the law by the applicant. That reading also sits comfortably with the Tribunal’s findings that there is also no evidence of the applicant being a person of interest to the police or that he has been charged with any offence.
The Minister submits that the availability of plausible construction for paragraph [74] is fatal to the applicant’s plea of jurisdictional error. The Minister submitted that the applicant’s case requires the Court to find an express contradiction between two findings in the Tribunal’s reasons which is not otherwise explicable. That is not the case here and the Court should not readily find illogicality or irrationality where other plausible constructions exist.
CONSIDERATION
The parties do not contest the applicable legal principles which frame the Court’s consideration of the application.
The Tribunal’s reasons should be read fairly and as a whole and not with an eye keenly attuned to the perception of error[12]. The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
[12] Collector of Customs v Pozzolanic (1993) 43 FCR 280; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272
In ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 the Court said at [47]:
“[…] [F]or a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal”.”
[citations omitted]
The threshold for jurisdictional error on the grounds of illogicality or irrationality is high[13]. As Anastassiou J observed in DFB16 v Minister for Immigration and Border Protection [2021] FCA 113 (DFB16) at [25], the authorities emphasise that the decision must not simply be one over which reasonable minds might differ; indeed, even emphatic disagreement with the Authority’s reasons is not sufficient. The applicant must establish that no rational or reasonable decision-maker could have reached the same decision that was made.
[13] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33]-[34]
Where there are plausible available constructions for the Tribunal’s reasons, those reasons should not be read so as to accept an express contradiction. Doing so is an exercise in reading the reasons with an eye attuned to error.
This point was also recognised by Anastassiou J in DFB16. At [27] his Honour accepted that there was ambiguity in an impugned sentence of the decision-maker’s reasons. He accepted that it was not expressed with the precision and clarity that might be desirable. However, his Honour said that the Court would not accept an express contradiction where there are plausible alternative constructions having regard to the decision maker’s consideration of all the evidence before it.
In my view the application for judicial review is premised on the illusion of an express contradiction in the reasoning which, on a fair reading of the Tribunal’s reasons as a whole, does not exist. The application is premised on the presumption that there was evidence before or a finding by the Tribunal that unwitting involvement by the applicant in an instance of drug trafficking is a breach of the law.
Paragraph [59] of the Tribunal’s reasons accepts the applicant’s claim that he belonged to a gang and that he had been involved in illicit drug trafficking. That finding was made by giving the applicant the benefit of the doubt but recognising a lack of any documentary or other evidence to support it. That finding must also be conditioned by the applicant’s claims that he was couriering motorcycle parts between Thailand and Malaysia as part of his participation in the 3 Line gang and that on one occasion he unwittingly couriered illicit drugs[14].
[14] Tribunal’s reasons at [58], [69]
In the course of reaching its finding, the Tribunal noted the applicant’s concessions that he had never been a person of interest to the authorities [69] and found at [74] that there is no evidence that he is a person of interest to the police or that he has been charged with any offence.
I accept the applicant’s submission that drug trafficking is a very serious matter in Malaysia and, based on country information in the 2016 DFAT report, that involvement can carry the most grave consequences.
At [66] the Tribunal accepted that the applicant has been a member of a criminal organisation which is involved in drug and other illicit trade, but it does not go so far as to say that the applicant is a drug trafficker. The applicant has at all times carefully denied any conscious involvement in trafficking and his claims for protection are squarely premised on being an unwitting participant. Further, in my view, the country information does not give rise to a necessary inference that an unwitting involvement in the trafficking of illicit drugs is a breach of the Malaysian criminal code.
In my view, there is no manifest or irreconcilable inconsistency between the Tribunal’s findings at [59] and [66] on the one hand and [74] on the other. The Tribunal’s acceptance of the applicant’s claims that he found himself unwittingly involved in a drug transaction is not evidence that the applicant has breached the law. The Tribunal’s finding at [74] that there was no evidence of the applicant having breached the law, properly construed, is a finding that there was no evidence before the Tribunal of that fact.
The applicant could have but did not put any evidence before the Tribunal to establish that unwitting or unknowing involvement in drug trafficking was an offence. There was no evidence about whether his conduct was a breach of the law. The impugned sentence at [74] simply recognises that evidentiary void. It was a finding that was reasonably open to it and it was not illogical or irrational.
DISPOSITION
For the reasons set out above, the application for judicial review of the Tribunal’s decision must be dismissed.
I will hear the parties on costs.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 5 December 2024
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