DDW17 v Minister for Immigration and Anor
[2020] FCCA 1682
•25 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DDW17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1682 |
| Catchwords: MIGRATION – Protection (Class XA) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal denied the Applicant procedural fairness – whether the Tribunal misapplied legal principles – whether the Tribunal took into account an irrelevant consideration – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.7, div.4, ss.5J, 36, 424A, 424AA, 425, 476 |
| Cases cited: Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 52 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | DDW17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1513 of 2017 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 14 February 2019 |
| Date of Last Submission: | 14 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 25 June 2020 |
REPRESENTATION
| The Applicant: | In person with the assistance of an interpreter |
| Solicitors for the Respondents: | Australian Government Solicitor |
| The Second Respondent: | Submitting appearance, save as to costs |
ORDERS
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1513 of 2017
| DDW17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 14 July 2017 (Application), the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 16 June 2017. The Tribunal affirmed a decision of a delegate (Delegate) of then Minister for Immigration and Border Protection (Minister) to not grant the Applicant a Protection (Class XA) visa (Visa).
The Applicant seeks judicial review of the Tribunal’s decision pursuant to s.476 of the Migration Act 1958 (Cth) (Act). The Court has considered the Application, an affidavit of the Applicant filed on 14 July 2017, the Court Book numbering 129 pages, an outline of submissions filed by the Minister on 30 January 2019 (Minister’s Submissions) and the transcript of the hearing that took place before the Court.
Background
The Applicant is a citizen of Malaysia[1]. He arrived in Australia on 27 September 2015 on a visitor visa[2].
[1] CB 29.
[2] CB 36-38.
On 24 December 2015, the Applicant applied for the Visa[3] (Visa Application). In the Visa Application the Applicant claimed to be involved in criminal activities in Malaysia and that he feared harm from fellow gang members or police if he returned[4].
[3] CB 16-52.
[4] CB 16-52.
On 29 March 2016, the Delegate refused to grant the Visa (Delegate’s Decision)[5].
[5] CB 57-70.
On 26 April 2016, the Applicant applied to the Tribunal for review of the Delegate’s Decision[6].
[6] CB 85-91.
On 15 June 2017, the Applicant appeared before the Tribunal to give evidence and present arguments. He was assisted by a Malay interpreter[7].
[7] CB 111.
The Minister’s Submissions (at [8] to [12]) summarise the Applicant’s claims for protection before the Tribunal. The Court adopts those submissions, with some alterations, as follows:
a)The Applicant’s wife and child are in Malaysia living with his parents. He completed a Diploma in Tourism and Management in 2010 and then worked for 3 years driving tourist buses. He left his job because it was not well paid and joined his friends in their ‘underground’ illegal work[8].
b)In the Visa Application the Applicant claimed that he was a member of a gang involved in collection of protection fees and robbery. Despite his desire to leave the gang he was not able to do that. He attempted to escape but was captured and tortured by the members of the gang. He managed to escape a second time and immediately came to Australia. If he returns to Malaysia he will be traced and his life will be in danger. The authorities will not help him as they are corrupt[9].
c)At the hearing before the Tribunal, the Applicant varied his claims. He told the Tribunal that he was involved with an “illegal organisation which distributed ecstasy pills and illegally selling duty free cigarettes and alcohol smuggled from Labuan Island”. He came to Australia because he wanted to end his involvement in these activities as he was afraid of being arrested. He would not be able to cease his illegal activities if he is returned to Malaysia, because of the influence of his friends who are still involved in those activities[10]. The Applicant was involved in these criminal activities for two years and was unemployed after that. Sometimes he “came back into the illegal business (as and when needed) as one-off labourer”. The Applicant has not relocated in Malaysia because he came to Australia “to look around and now feels it is much more suitable for him than Malaysia”[11]. The Applicant also told the Tribunal that he came to Australia because he felt depressed about his situation in Malaysia. He wanted to change his life and “see how it felt to live abroad”[12].
d)When asked by the Tribunal how many people were involved in those illegal activities, the Applicant said a lot. When pressed, he said “there were about 100 people involved in a lot of small sub-enterprises”. There were “about five people in his group and they were all friends”[13].
e)The Applicant gave evidence that he had never been arrested and had never suffered any harm in Malaysia. However, he had received verbal threats from his friends not to stop his illegal activities because “there would be a loss of manpower” for the organisation. When the Tribunal pointed out that, according to the Applicant, there were about a hundred people involved, the Applicant responded that those people worked in different zones and “he was most reliable”[14]. The Applicant said that there was “fifty-fifty” chance that he would be harmed if returned to Malaysia[15].
[8] CB 122-123, at [13]-[14].
[9] CB 47-49, CB 122, at [12].
[10] CB122-123, at [17].
[11] CB 123, at [15].
[12] CB 132, at [16].
[13] CB 122-123, at [14].
[14] CB 123, at [17].
[15] CB 124, at [22].
On 16 June 2017, the Tribunal affirmed the Delegate’s Decision (Tribunal’s Decision)[16].
[16] CB 120-129.
The Tribunal’s Decision
The Tribunal’s Decision appears at pages 120 to 129 of the Court Book. The Minister’s Submissions (at [13] to [20]) accurately summarise the Tribunal’s Decision. The Court adopts those submissions, with amendments, as follows.
After detailing the background of the application for review[17], the Tribunal set out the relevant law relating to the visa application, including the complimentary protection criterion in s.36(2)(aa) of the Act[18]. The Tribunal then summarised the Applicant’s claims[19].
[17] CB 121, at [1]-[4].
[18] CB 121-122, at [5]-[10].
[19] CB 122-123, at [11]-[17].
The Tribunal identified that the issues under review were whether the Applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm[20].
[20] CB 123, at [18].
The Tribunal put to the Applicant that his evidence at the hearing was different from his claims for protection in the Visa Application. The Tribunal noted that in response the Applicant:
[…] indicated that what he was telling the Tribunal at the hearing was the truth. He commented that when he made his protection visa application he did not know anything about protection visas, he paid someone to complete an application for him and stated that the things in the application are not true. The Tribunal asked the applicant if he can read English. He said he could. The Tribunal asked the applicant why he did not read what was in the application. He replied that he bypassed reading it and did not pay attention to what was in the application. The Tribunal asked why he did not read what had been put in the application if he felt he was at risk of harm if he returned to Malaysia. The applicant could not offer an explanation.[21]
[21] CB 124, at [22].
The Tribunal accepted that the Applicant may have been involved in some illegal activity distributing ecstasy pills and selling duty free cigarettes and would like to stop those activities due to a fear of being arrested. The Tribunal also accepted that the Applicant found it difficult to stop those activities due to peer pressure from his friends. However, as discussed with the Applicant at the hearing, the Tribunal noted that there are support services in Malaysia for people wishing to change their lives after involvement in criminal activity[22].
[22] CB 124, at [22].
Due to adverse credibility findings, the Tribunal did not accept that the Applicant was ever threatened by his friends or others, including that he would be beaten up, if he left the group and stopped his involvement in these illegal activities. In particular, the Tribunal did not accept as credible the Applicant’s claims that his manpower was critical to the alleged criminal group. In relation to the Applicant’s comment that threats were made that he would be beaten-up:
[…] the Tribunal put to the applicant that he indicated that he stopped doing this illegal work after two years, but did sometimes help out on a casual basis. The Tribunal queried the applicant that he had not indicated that he was harmed as a consequence of his stopping his full time involvement with these illegal activities, so it did not seem that any threats that may have been made were acted upon. The applicant did not counter this statement.[23]
[23] CB 124-125, at [23].
In accordance with the requirements of s.424AA of the Act, the Tribunal put to the Applicant for comment information from the Applicant’s bridging Visa application made in November 2016, which had been refused. In that application the Applicant indicated that he planned to visit Malaysia for a period of three months to deal with a property inheritance issue. The Applicant explained to the Tribunal that he was taking a risk to attend a family meeting but he “would have spent some time hiding during those three months”. The Tribunal did not find this explanation to be credible. The Tribunal found that the Applicant’s willingness to return to his home area for three months from November 2016 indicated that there is not a real chance of serious harm or real risk of significant harm should the Applicant return to Malaysia now or in the foreseeable future[24].
[24] CB 125, at [24].
The Tribunal considered the Applicant’s claims that his pay for driving tourist busses in Malaysia was insufficient. The Applicant worked in Australia as a fruit and vegetable picker and more recently as a construction worker. The Tribunal accepted that the Applicant may not readily find employment in Malaysia which pays as well as his job in Australia, but there was no information before the Tribunal to indicate that the Applicant could not find any employment in Malaysia. The Tribunal did not accept that the Applicant faces a real chance of suffering significant economic hardship in Malaysia that threatens his capacity to subsist or that he faces a serious harm for that reason[25].
[25] CB 125-126, at [25].
Finally, the Tribunal found that should the Applicant choose to engage again in illegal activities upon his return to Malaysia, which would put him at risk of being arrested and prosecuted under the Malaysian law, such risk does not amounts to prosecution involving serious harm, or significant harm[26].
[26] CB 126, at [26].
The Tribunal concluded that it was not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention or that the Applicant satisfied the alternative criterion in s.36(2)(aa) of the Act and affirmed the decision not to grant the Applicant the visa[27].
[27] CB 126, at [27]-[30].
Proceedings before the Court
In his Application to this Court, the Applicant raised thirteen grounds of review, as follows:
1. I am applying Judicial Review at Federal circuit court under the s.476 of the Migration Act 1958 related to federal circuit court regulations.
2. Delegate has refused the 866 visa on the Basis of the I do not have a well-founded fear of persecution in Malaysia and Tribunal has affirmed not to grant the protection visa on the basis of I could obtain protection from Malaysian authorities such that there would not be a real risk that the applicant would suffer significant harm if he returned to Malaysia.
3. I asserts that the Tribunal made a finding that was error in jurisdictional fact in considering that the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a), material has been taken by tribunal Member was limited to what my extent of life threat.
4. I have submitted review on 26 April 2016 after I have got Refusal from delegate. I have appeared before the Tribunal on 15 June 2017. It is unfair and there is no procedure fairness in conducting the hearing for protection visa holders.
5. Even though review has been conducted in Malay and English, I have felt that my verbal claims weren’t interpreted properly according to my view.
6. I have sever family issues and also my new born baby has been passed away in India, Still I have paid attention on my studies.
7. Also immigration has wrongly assessed the regulations about my protection claims mentioned in Paragraph 36(2)(aa) of the Delegate decision.
8. I am still in danger of my life if I go to Malaysia that there are substantial grounds for believing that, serious life threat to me if I am removed to Malaysia, there is a real risk I will suffer significant harm. I think Delegate and Tribunal have taken the decision in wrong way also I believe that both decision have Jurisdiction Error.
9. I never had wrong immigration history previously, just trying to save my life from assailants in Malaysia by hiding in Australia.
10. Justice of Federal Circuit court should see the AAT and Delegate decision to see the contradiction of procedure in making the decision for me on the basis of available web information to Australian Authorities as theses information made out by Malaysian Authorities to secure the country integrity, but in true manner there isn’t a situation favour to persons such me.
11. Court and Justice may consider this matter about my situation in Malaysia if this kind of Problems occurred I will be killed if I go back to Malaysia.
12. Therefore, I am requesting the federal circuit court to consider my situation under exceptional circumstances where I request the Judge and court see in this matter.
13. I request the honourable Judge to put the tribunal decision aside and remit the Decision back to Immigration or remit the Decision back to Tribunal.
(Errors in original; Citations removed)
The Applicant also filed an affidavit dated 14 July 2017 (Applicant’s Affidavit). The Applicant’s Affidavit annexed a document titled “Written Submission/Explanation”. The Court has reviewed the Applicant’s Affidavit and will refer to it in its consideration, where necessary.
Orders were made on 21 March 2018 by a Registrar of this Court, permitting the Applicant to file and serve any amended application, any affidavits, supplementary court book and written submissions 28 days before the final hearing. However, no further materials were provided by the Applicant.
At the hearing on 14 February 2019, the Applicant appeared without legal representation. A Malay interpreter was available to assist the Applicant at the hearing. The Applicant made no oral submissions to the Court in relation to his Application.
Consideration
Grounds 1, 2, 6, 8, 9, 11, 12 and 13
These grounds do not need to be dealt with at length.
Ground 1, 12 and 13 do not identify any jurisdictional error. Ground 1 identifies the relevant legislative provision under which this Court has jurisdiction and grounds 12 and 13 outline the relief that the Applicant seeks from the Court.
Ground 2 refers to the Delegate’s Decision. The ground, in effect, summarises the Delegate’s Decision. It does not identify any error. Further, this Court has no jurisdiction in relation to the Delegate’s Decision[28].
[28] Migration Act 1958 (Cth), s.476(2) and (4).
Ground 6 refers to the Applicant having family issues and a newborn baby. There does not appear to be any reference to “family issues” in any of the materials before the Court. There is no reference to the Applicant having a new born baby who has passed away. The Tribunal acknowledges that the Applicant has a wife and child who live with the Applicant’s parents in Malaysia[29]. Ground 6 appears to be referring to matters that were not raised before the Tribunal and therefore these cannot give rise to jurisdictional error.
[29] CB 125, at [25].
Ground 8 rises no higher than an assertion that the Tribunal and the Delegate have fallen into jurisdictional error because the Applicant believes that he meets the criteria for the grant of the Visa. Mere disagreement with the Tribunal’s conclusion does not amount to jurisdictional error. Without more, the Applicant is simply seeking impermissible merits view in Ground 8.
It is unclear what the Applicant is referring to by “wrong immigration history”. The only matter the Court infers may be relevant was the Tribunal’s reference to the Applicant having applied for a Bridging Visa B to allow him to return to Malaysia for a short period before coming back to Australia. The Tribunal put to the Applicant that this may indicate that his seeking the Bridging Visa was inconsistent with having a fear of persecution or harm in the country[30]. It was entirely open for the Tribunal to hold this concern and to find that the Applicant’s willingness to return to his home indicated that there was not a real chance of the Applicant suffering persecution involving serious harm or a real risk of the Applicant suffering significant harm should he return to Malaysia now or in the foreseeable future: Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 52.
[30] CB 125, at [24]
Other than this reference to the Bridging Visa B, the Applicant’s immigration history was not otherwise relevant. Ground 9 again simply appears to be a plea to the merits of the Applicant’s case that he should be granted the Visa.
Ground 11, again, is simply an invitation to engage in merits review. It is not for the Court to consider if the Applicant will be killed if he returns to Malaysia. Rather, the Court is confined to determining if the Tribunal fell into jurisdictional error.
Grounds 1, 2, 6, 8, 9, 11, 12 and 13 are dismissed.
Grounds 3 and 7
Grounds 3 and 7 both allege that the Tribunal has somehow erred in its application of s.36(2)(a) and s.36(2)(aa) of the Act. To the extent by Ground 7 the Applicant seeks review of the Delegate’s Decision (noting that he footnotes the Delegate’s Decision in this ground), again the Court has no jurisdiction in relation to the Delegate’s Decision.
In the submissions attached to the Applicant’s Affidavit, he stated:
I find the Tribunal decision misstated and misapplied the test for my safety and threat in Malaysia.
The Tribunal accurately summarised the relevant legal principles in its decision[31]. The Tribunal then considered the Applicant’s claims and evidence and made the necessary findings of fact which informed its assessment of whether the Applicant met the criterion to be granted the Visa.
[31] CB121-122, at [5]-[9].
The Tribunal’s application of the “tests” to the Applicant’s particular claims and evidence was entirely orthodox. The Tribunal utilised the language of the statute and, in particular, it went in to some detail when assessing the Applicant’s claim to suffer serious harm as a result of any economic hardship[32]. When making each of its conclusions the Tribunal used the language of the statute and it is apparent that the Tribunal demonstrated no doubt in any of its findings.
[32] CB 125, at [25].
The Applicant has failed to satisfy the Court that the Tribunal has misapplied the principles relevant to the Visa. Rather, he simply disagrees with the finding.
Grounds 3 and 7 are dismissed.
Grounds 4 and 5
Ground 4 alleges that the Applicant was denied procedural fairness. He footnotes [3] and [4] of the Tribunal’s Decision but these paragraphs are of no assistance to the Court in identifying any jurisdictional error. In the submissions annexed to the Applicant’s Affidavit, he states:
The tribunal constructively failed to exercise its jurisdiction and denied procedural fairness by not giving me the opportunity to submit my explanations why I am not having the evidence, member has discussed whether I could go back and could seek the authorities help but member did not see the real situation of threat according to country. The tribunal could have listened my view as I was ready to give more so that I would have given more oral evidence to the member. If I would be given the opportunity to explain that could have led to a different decision by the tribunal.
The Applicant appears to suggest he was not given an opportunity to “give more” evidence. In the submissions attached to the Applicant’s Affidavit he refers to the Tribunal “mainly” addressing whether he could relocate.
The Applicant has produced no evidence to the effect that he was not given an opportunity to provide “more” evidence or that the Tribunal focused on relocation.
The Tribunal’s hearing record indicates that the hearing before the Tribunal was over one hour in length[33]. The Tribunal’s Decision also indicates that the Applicant advised, when information was put to him pursuant to s.424AA of the Act, that “he did not want more time to comment on or respond to the information, or for the hearing to be adjourned, but would comment immediately”[34]. There is nothing before the Court to suggest that the Applicant had “more” evidence that he was prevented from providing the Tribunal. The Court is not satisfied that the Applicant was prevented from giving “more evidence”
[33] CB 111-113.
[34] CB 125, at [24].
As for the claim that the Tribunal addressed “mainly” whether the Applicant could relocate, this was a legitimate enquiry for the Tribunal to make[35] and, in any event, the Tribunal’s summary of what occurred at the hearing demonstrates that this was only a small part of the discussion at the hearing.
[35] Migration Act 1958 (Cth), s.36(2B)
In relation to Ground 4 and the allegation of a denial of procedural fairness more generally, the Court finds:
a)The Tribunal put information to the Applicant for comment pursuant to s.424AA of the Act[36]. The Tribunal provided clear particulars of that information and explained why it was relevant to the review. The Applicant indicated that he understood this and chose to respond immediately as opposed to requesting a further period of time. The Tribunal complied with both s.424A and 424AA of the Act;
b)The Applicant was invited to attend a hearing. As noted, that hearing was over one hour in duration and the Tribunal refers in some detail to the evidence that the Applicant had provided at that hearing[37]. The Tribunal advised the Applicant that the credibility of his claims was in issue, and therefore the Tribunal placed the Applicant on notice that the determinative issue had changed from the Delegate’s Decision: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63. The Tribunal has complied with s.425 and the Applicant had a real and meaningful opportunity to participate in the hearing;
c)The Applicant requested an adjournment of the hearing due to being ill and the Tribunal acceded to that request and rescheduled the hearing[38]. During the hearing, the Tribunal confirmed the Applicant that he did not seek an adjournment in order to have additional time to respond to adverse information put to him under s.424AA. There is nothing to suggest that the Tribunal acted unreasonably in the conduct of the hearing; and
d)There is nothing on the face of the Tribunal’s decision which would indicate that the Tribunal had been affected by actual or apprehended bias. The Tribunal’s Decision demonstrates a willingness to listen and engage with the Applicant and to give the Applicant some benefit when addressing his claims[39].
[36] CB 125, at [25].
[37] CB 122-123, at [13]-[17].
[38] CB 103-110.
[39] See for example, the first sentence of CB 124, at [23].
There is nothing to suggest that the Tribunal breached the exhaustive procedural fairness obligations set out in div.4 of pt.7 of the Act.
Ground 5 contains a more particularised assertion of procedural fairness in that the Applicant claims that he felt his evidence (his “verbal claims”) were not interpreted properly.
In order for an interpreter error to deprive an applicant of a meaningful hearing (and vitiate a decision with jurisdictional error), the Court in SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [9] states:
The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.
The Tribunal hearing was conducted with the assistance of a Malay interpreter. The Applicant has not placed any evidence before the Court (in the form of a transcript) which demonstrates to what extent, if any, there were any interpreter error. Here, there is no “proven errors in interpretation”.
Nevertheless, on the materials before the Court it is not apparent that the Applicant was effectively prevented from giving his evidence nor has he indicated that there were any errors which were material to the Tribunal’s consideration[40]. The Tribunal’s Decision indicates that the Applicant responded to each of the questions asked directly. There did not appear to be any apparent confusion or misunderstanding in his responses.
[40] WALN v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCAFC 131.
On the basis of the materials before the Court, the Court is not satisfied that any interpreter error (which there is no evidence of any) denied the Applicant procedural fairness or deprived him of the opportunity to meaningfully participate in a hearing.
Grounds 4 and 5 are dismissed.
Ground 10
Ground 10 takes issue with the Tribunal’s choice of country information. The Applicant alleges, in some respects, that the country information was biased as it was produced by the Malaysian authorities and does not show the true situation
It is well accepted that the choice and weight that the Tribunal gives to the country information is a matter for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13].
To the extent the Applicant is disagreeing with the Tribunal finding that he could access support services that could help him resist peer pressure to engage in illegal activities, the Tribunal discussed the information about the support services with the Applicant at the hearing. If he disagreed with it, he ought to have raised this with the Tribunal and detailed why such support service was not or would not be feasible or available for him.
In the submissions attached to the Applicant’s Affidavit he stated:
Tribunal asked the wrong question in determining whether it would be safer if I moved to Malaysia. Other errors such Tribunal did not pay attention on other and different risks, apart from country web information the Tribunal did not consider my faced harm and future life threat for normal Individual who can’t handle with the government or the group.
If the Applicant is suggesting that the Tribunal only paid attention to “country web information” as opposed to his claims, this is without any merit. The Tribunal thoroughly engaged with the Applicant’s claims and evidence to determine if he was at risk or chance of harm for any reason. If the Applicant is taking issue with the Tribunal relying on “web information”, there is no prohibition on the Tribunal doing so. As noted, the choice and selection of country information is entirely a matter for the Tribunal and here, the “web” information that was referenced was specifically relevant to the Applicant’s claims.
Ground 10 is dismissed.
Applicant’s Affidavit
The Court has extracted parts of the Applicant’s Affidavit when addressing the Grounds of the Application. There are a small number of other matters arising in the Applicant’s Affidavit that should be addressed.
With reference to the substantive part of the Applicant’s Affidavit, most of the paragraphs are not of any assistance to the Court. The Court does note that [2]-[4] are matters that plea to the merits of the Applicant’s claims for protection. Further, to the extent the Applicant refers to not having a solicitor (at [5]), there is no right to legal representation in this Court and the Court is satisfied that the Applicant was able to present his case and arguments.
In relation to the “submissions” attached to the Applicant’s Affidavit, the Applicant stated:
I claim of fear of persecution should if I return to Malaysia were for reasons of my ethnicity and my religion where the group I have left from is very active and ready to kill me in Malaysia. I also claim of fear of persecution on the basis of my membership of a particular group and “My Previous activities in the group”. I have claimed at the hearing and also when I have applied for protection visa, but delegate and tribunal Member have mistaken my claims.
Contrary to this submission, the Applicant never claimed to fear harm on the basis of his ethnicity or religion. The Applicant’s claims in his Visa application clearly came to fear harm for reason of being involved with “gengsters”. The Delegate made no reference to the Applicant having a fear of harm on the basis of his ethnicity or religion. The Applicant did not seek to correct this to include his ethnicity or religion. Rather, at the hearing the Tribunal records the following:
The Tribunal asked the applicant what he feared would happen to him if he returned to Malaysia. He said he was worried that he would return to his old ways, especially if he saw his old friends. He indicated that he has never been arrested. When asked if he had ever suffered any harm in Malaysia, he commented that he had received verbal threats from his friends not to stop doing that business because there would be a loss of manpower. He indicated he was threatened that he would be beaten up. The Tribunal queried the applicant why they would be concerned about a loss of manpower given he had said previously that there were a hundred people working in this illegal business. The applicant commented that they work in different zones and he was most reliable.[41]
[41] CB 123, at [17].
It is plainly apparent that no reference is made to his ethnicity or religion.
As for the consideration of the Applicant’s membership of a “particular social group”, the focus of the Tribunal’s Decision and consideration was the Applicant’s claim to have been involved with a gang who engaged in illegal activities and that he would face harm on return for this reason. The Tribunal did not mistake the Applicant’s claim. Rather it addressed that claim in significant detail as it was, in fact, the only claim that the Applicant expressly advanced.
The Applicant’s submissions further state:
Factors need to be examined by Judge:
• I am claiming that the Tribunal fell into jurisdictional error in relation to the matters that it took into account in reaching the conclusion that it did;
• On other way tribunal has different view on my life threat back in Malaysia in relation to the specific finding that the chance of serious harm for a Convention reason if he returns to Malaysia. But it is not true in terms of normal citizen facing these kind of life threat. Even I would have problem with government and as well as with group.
• Court and Justice may consider this matter about my situation in Australia if this kind of Problems occurred during in such country heavily affected by on one religion with monarchy by Sultans and Sultans Associate government in the country.
• Therefore, I am requesting the federal circuit court to consider my situation under exceptional circumstances where I request the Judge and court see in this matter.
• I request the honourable Judge to put the tribunal decision aside and remit the Decision back to Immigration or remit the Decision back to Tribunal
The Tribunal took into account all of the relevant consideration that were required to be taken into account when assessing the Applicant’s Visa Application. There was nothing irrelevant in the Tribunal’s consideration. The other matters are simply directed to the merits of the Applicant’s claims to be owed protection.
Nothing arises from the Applicant’s Affidavit.
Conclusion
The Applicant’s Application does not identify any jurisdictional error. It must be dismissed.
At the hearing, the Minister sought costs fixed in the sum of $6,000 in the event that the Minister was successful. This amount is below the scale amount in Item 3, Division 1, Part 3 of Schedule 1 of the Federal Circuit Court Rules 2001 (Cth) and the Court considers it appropriate that the Applicant pay the Minister’s costs of opposing his Application.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 25 June 2020
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