DDX19 v Minister for Immigration

[2020] FCCA 519

FEDERAL CIRCUIT COURT OF AUSTRALIA

DDX19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 519

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5J, 36, 424A, 424AA, 476

Applicant: DDX19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2129 of 2019

Judgment of: Judge Driver

Hearing date: 10 March 2020

Delivered at: Sydney

Delivered on: 10 March 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr N McArdle of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2129 of 2019

DDX19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 22 July 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 25 February 2020. 

2. The applicant, a citizen of Malaysia, arrived in Australia on 12 January 2016 as the holder of an Electronic Travel Authority visa.[1] On 24 March 2016, the applicant applied for the visa.[2]

   [1] Court Book (CB) 19 and 59

   [2] CB 1-54

3. On 29 July 2016, the delegate refused to grant the applicant the visa.[3] On 4 August 2016, the applicant applied to the Tribunal for review of the delegate’s decision.[4]  On 19 July 2019, the applicant attended a hearing before the Tribunal.[5]  On 22 July 2019, the Tribunal affirmed the delegate’s decision.[6]

   [3] CB 59-73

   [4] CB 74-75

   [5] CB 95-98

   [6] CB 107-116

Applicant’s claims

1. The applicant’s claims for protection were set out in his visa application form.[7]   He claimed that he wanted to build a life in Australia, felt unsafe in Malaysia, and there were a lot of race and religion issues in Malaysia. He claimed that he would not survive or live peacefully if he returned to Malaysia. He also claimed that he experienced harm on six occasions (including almost getting killed when fighting at a shopping mall and being robbed in his house) and that he sought help but nothing changed.

   [7] CB 30-32

2. At the Tribunal hearing, the applicant made further claims. The applicant claimed the increasing dominance of Malay Muslims in Malaysia made life for non-Malays a struggle and made him feel uncomfortable.[8]  The applicant claimed he was attacked in Kota Kinabalu on two occasions by Muslim gangs from Sulu in the Philippines, who act opportunistically and carry out targeted crimes on a contract basis.[9]  He also claimed that he felt psychological pressure from his somewhat controlling family and that the Malay Muslim dominance, security issues in Sabah, and other factors made him uncomfortable and depressed.[10]

   [8] CB 110, [23]

   [9] CB 112, [28]-[29]

   [10] CB 112, [31]

Tribunal decision

1. At the Tribunal hearing, the applicant stated that an agent helped him prepare his application and “pumped up” his claims. He admitted that:[11]

   a)he did not suffer harm on almost six occasions;

   b)there was no fighting at a shopping mall (almost leading to his death); and

   c)there was no house robbery.

   [11] CB 110, [17]-[19]

2. The Tribunal noted that the applicant did not make express claims to have suffered harm on the basis of his being a Kadazan-Dusun person or Christian but that he did express concerns about Muslim Malays, who received preferential treatment over the bumiputera. The applicant is of Kadazan-Dusun ethnicity, an indigenous minority that is considered part of the ethnic-Malay or indigenous population (otherwise known as the bumiputera).[12]

   [12] CB 110, [23]

3. The Tribunal identified that there was country information that provided some context and potential support for the applicant’s claim that he was discriminated against by virtue of his ethnicity as a Kadazan-Dusun and his religion of Seventh Day Adventism.[13]  However, the Tribunal found that the applicant was “blurring the distinction between general country information and his personal past experiences”.[14]  The Tribunal accepted that the applicant might have experienced minor instances of discrimination based on race or religion. However, it did not accept that he was pressured on religious matters by taxi drivers; he was subject to forced conversions to Islam; or that he was subject to serious harm or significant harm in practising his religion.[15]

   [13] CB 110-112, [20]-[27]

   [14] CB 111, [26]

   [15] CB 111, [26]

4. Having regard to the applicant’s own evidence, the Tribunal considered that the two attempted robberies experienced by him at the hands of Muslim gangs were opportunistic and not targeted.[16] As such, it found that these robberies arose “in the course of general criminal activity” and did not fall within the scope of s.5J(1) of the Migration Act 1958 (Cth) (Migration Act). Further, the Tribunal identified that they occurred in Kota Kinabalu, some distance from the applicant’s home and found that these general security issues which affected all Malaysians did not fall within the scope of s.5J(4)(a) of the Migration Act.[17] 

   [16] CB 112, [29]-[30]

   [17] CB 114, [40]

5. The Tribunal considered the applicant’s claims of emotional and psychological pressure and accepted that he might have felt unhappy about his personal circumstances including the expectations of his family and the perception of his prospects in Malaysia. However, it was not satisfied that he suffered emotional or psychological harm involving persecution or significant harm as a result of these factors.[18]

   [18] CB 112-113, [31]

6. The Tribunal recorded the applicant’s evidence that he “left Malaysia to start a new life” and travelled to Australia to work and study.[19]  The Tribunal found that the applicant’s account of his departure from Malaysia and the concerns he had about returning there indicated that he did not flee persecution or significant harm.[20]  The Tribunal found that the applicant’s main concerns related to Malaysia’s economic, social and security climate, and his wish to seek a better life in Australia.[21]

   [19] CB 113, [33]

   [20] CB 113, [35]

   [21] CB 113, [35]-[36]

7. The Tribunal found that the applicant’s economic, financial and psychological concerns did not involve serious harm to him pursuant to s.5J(4)(b), as his more modest study, work and earning prospects in Malaysia did not threaten his capacity to subsist. It also found that it did not involve “systematic and discriminatory conduct” as the country’s circumstances affected all Malaysian citizens. Finally, these general conditions in Malaysia did not fall within any of the five grounds enumerated in s.5J of the Migration Act.[22] On this basis, the Tribunal was not satisfied that the applicant met the requirements for the grant of a protection visa under s.36(2)(a) of the Migration Act.[23]

   [22] CB 114, [39]

   [23] CB 114, [42]

8. Similarly, the Tribunal was not satisfied that the applicant met the requirements under s.36(2)(aa) of the Migration Act as it did not accept that there were substantial grounds for believing that the applicant’s claims would result in significant harm in light of the above findings.[24] Accordingly, the Tribunal affirmed the decision under review.[25]

   [24] CB 114-115, [44]-[46]

   [25] CB 115, [50]

The present proceedings

1. These proceedings began with a show cause application filed on 19 August 2019.  The applicant continues to rely upon that application.  There are three grounds in it:

   1. The First Respondent and Second Respondent fell into jurisdictional error

   Particulars

   a.The First Respondent and Second Respondent may have incorrectly identified the conventional ground of the fact that the Applicant identified himself as being a member of Kadazan-Dusun being religion and race only for claims the Applicant.

   b.The First Respondent failed to discharge its obligations per s 56 of the Migration Act to invite the Applicant for an Interview in the case where a decision maker needs to explore protection claims based on an applicant's religious beliefs.

   2.The Second Respondent failed to properly discharge its obligation under subparagraph 424AA(1)(b)(iii) of the Migration Act 1958 in advising the Applicants that he may seek additional time to comment on or respond to the information that the Tribunal considers would be the reason, or a part of the reason for affirming the decision that is under review, and subsequently failed to exercise its direction reasonably to adjourn the review.

   3.The Second Respondent may fall into jurisdictional error as the supporting documents the Tribunal replied upon when making the decision was outdated.

2. The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 16 October 2019. 

3. Only the Minister filed pre-hearing written submissions in this matter.  I invited oral submissions from the applicant this morning.  He stated that he had no comment to make in relation to the Tribunal decision.  I asked the applicant again whether he wanted to make any submissions in reply.  Again, he declined the opportunity.  In my view, there is no substance in the grounds of review advanced.  The Minister’s submissions deal adequately with those grounds. 

4. As a preliminary matter, the Minister notes that by operation of s.476(2)(a) of the Migration Act, the Court does not have jurisdiction to review the delegate’s decision. On this basis, Ground 1(b) must fail. I agree. Further, where the applicant otherwise seeks to challenge the decisions of the Minister and the Tribunal, the Minister has appropriately dealt with those contentions as they relate to the Tribunal only.

5. It is not entirely clear what the applicant intends to contend by Ground 1(a). To the extent that the applicant asserts that the Tribunal incorrectly confined its consideration of his claims to his Kadazan-Dusun ethnicity and Seventh Day Adventist beliefs, that contention must fail at a factual level. The Tribunal considered the material claims advanced by the applicant at the hearing. This included consideration of:

   a)the two occasions on which gang members attempted to rob and threatened to kill the applicant in Kota Kinabalu;[26]

   b)the increase in Muslim dominance in Malaysia;[27]

   c)the psychological and emotional pressure he experienced in Malaysia from his family and as a result of the Malay-Muslim dominance;[28] and

   d)his economic prospects in Malaysia.[29]

   [26] CB 112 [28]-[30]

   [27] CB 110-112 [20]-[27]

   [28] CB 112-113 [31]-[32]

   [29] CB 113 [33]-[35]

6. It was open to the Tribunal to consider whether the applicant might fear harm on the basis of his ethnicity and religion in circumstances where the applicant expressed concerns on the basis of discrimination against bumiputera (ethnic Malays and other indigenous groups), of which the Kadazan-Dusun are considered a part. This ground fails to raise an arguable case for the relief claimed.

7. There appear to be two separate contentions advanced by Ground 2. First, the applicant complains that the Tribunal failed to allow him additional time to comment on or respond to information pursuant to s.424AA(1)(b)(iii) of the Migration Act. Secondly, the applicant complains that the Tribunal acted unreasonably in failing to adjourn his hearing.

8. The first contention is misconceived. There is nothing in the material before the Court to support any contention that the Tribunal relied on any “information” for the purposes of s.424A of the Migration Act or that it put any such information to the applicant in accordance with s.424AA of the Migration Act. The Tribunal’s decision was based on evidence provided by the applicant and country information available to it, all of which falls within exceptions under s.424A(3)(a),(b) and (ba) of the Migration Act which preclude the Tribunal from having to put particulars of the information to the applicant. In those circumstances, the first contention fails to raise any arguable case for the relief claimed.

9. The assertion made by the second contention that the Tribunal was unreasonable in not adjourning the applicant’s hearing is also misconceived. That is because there is no indication that the applicant made a request for an adjournment. This contention also fails to raise any arguable case.

10. No particulars are provided in support of Ground 3 to identify which documents the Tribunal apparently relied upon that were “outdated”.  To the extent that this is a reference to the country information relied upon by the Tribunal,[30] the contention is without merit. The Tribunal relied on the most recent iteration of the Malaysian DFAT[31] country information report as at the time of making its decision.

    [30] CB 110-111 [21], [24], [25]

    [31] Department of Foreign Affairs and Trade

11. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

12. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant enquired about a reduction in costs, but, in my view, the scale amount properly reflects the work undertaken in this matter on behalf of the Minister. 

13. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  12 March 2020