DCC17 v Minister for Home Affairs

[2019] FCCA 621

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCC17 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 621

Catchwords:
MIGRATION – Application for judicial review of decision of the Administrative Appeals Tribunal.

Legislation:

Migration Act 1958 (Cth)

Applicant: DCC17

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 282 of 2017

Judgment of: Judge Young

Hearing date: 22 February 2019

Date of Last Submission: 22 February 2019

Delivered at: Darwin

Delivered on: 22 February 2019

REPRESENTATION

The Applicant:	In person
Counsel for the First Respondent:	Ms Milutinovic

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. That the application filed 11 July 2017 is dismissed.

2. That the Applicant pay the First Respondent’s costs in the sum of $5,000.00.

3. That the name of the First Respondent is amended to read ‘MINISTER FOR HOME AFFAIRS’.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. ADG 282 of 2017

DCC17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Administrative Appeals Tribunal made on 3 July 2017.  The applicant is a citizen of Malaysia and came here, as far as I can see, legally some years ago.  In his written refugee claims, he claimed to have been a student in Malaysia and an activist and to have been banned by the then government.  He claimed that he was banned from studying. He said that he had been involved in the agitation over the 1MDB corruption scandal in Malaysia which is a reference to the notorious corruption scandal involving the former Prime Minister Najib.

3. He said that he feared prosecution under the Sedition Act and he came to Australia to escape harm.  When he was interviewed by the Tribunal, the Tribunal noted that the applicant could not recall his written claims, and, in the interview, he appeared to raise new claims and, in particular, he asserted that he did not agree with what he described as the policy or practice of the government of Malaysia of exploiting East Malaysia and its resources of oil and timber.  He said, in the interview, that he became a member of an organisation called “SSKM” which stands for “Sabah Sarawak Keluar Malaysia” or “Sabah and Sarawak out of Malaysia”.

4. Later in the interview, he said he was not a member of SSKM.  The Tribunal noted as, I think, was unavoidable given that recitation that the applicant’s oral claims in interview were different to the written claims and were also vague.  There are references in the interview that the applicant feared to return to Malaysia, or perhaps East Malaysia in particular, because of the economic situation.  He said at one point during the interview that he did not fear any trouble because of political activity.

5. At another point in the interview, he claimed to have been locked up in August 2015 because of his involvement in anti-government protests.  At a later time, he said the real reason to travel to Australia was to get a better salary.  Clearly, there were very significant credibility issues raised by all of this and the Tribunal found that the applicant was not credible or truthful about his reasons for leaving Malaysia.  It also referred to a claim by the applicant that he had been involved in a street fight and had been apparently injured.

6. The Tribunal found that there was no evidence that the street fight had anything to do with politics or it was politically motivated and did not accept that the applicant had a well-founded fear of persecution on that basis. It also concluded, in a discussion about country information, that essentially the country information did not support the applicant’s claims, vague and inconsistent as they may have been.  In short, the applicant’s application failed because he was not believed. Having regard to the Tribunal’s discussion, it appears to me that that was an inexorable result of what the applicant himself said to the Tribunal.

7. In other words, there appears to me to be a proper basis for the Tribunal’s adverse credibility finding.  In relation to the actual grounds of review set out in the application, essentially they take issue with the Tribunal’s conclusion but without attempting to point to jurisdictional error but, rather, disagreement with the conclusions.  As I have already observed, I am satisfied that the conclusions that the Tribunal reached were open to it and possibly even unavoidable.  The application does not, in its own terms, describe any recognised ground of jurisdictional error.

8. I invited the applicant to make oral submissions about these matters but, while he was assisted by an interpreter, he did not appear to be able to formulate any relevant submissions.  Accordingly, I dismiss the application.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:     13 March 2019