DEI18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 445

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DEI18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 445

File number(s):

MLG 1769 of 2018

Judgment of:

JUDGE EGAN

Date of judgment:

16 May 2024

Catchwords:

 MIGRATION LAW – whether the Tribunal engaged appropriately in a consideration of all of the applicant’s claims – whether the Tribunal had intellectually engaged upon a consideration of all relevant issues before it – no jurisdictional error established – application dismissed

Legislation:

Migration Act 1958 (Cth), ss. 5J, 5H, 32, 36

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR

Division:

Division 2 General Federal Law

Number of paragraphs:

28

Date of last submission/s:

24 April 2024

Date of hearing:

13 May 2024

Place:

Brisbane

Solicitor for the Applicant:

The applicant appeared on her own behalf

Solicitor for the First Respondent:

Ms K. Petrovski, Solicitor, Sparke Helmore

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 1769 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DEI18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	16 MAY 2024

THE COURT ORDERS THAT:

1.The Application for Review filed on 19 June 2018 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review fixed in the amount of $5,000.00.

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 EGAN

INTRODUCTION

1. The applicant is a 34 year old female citizen of the Republic of Malaysia, who was of Hindu‑Tamil ethnicity, and who arrived in Australia as the holder of a tourist visa by aeroplane on 12 February 2016. [1] She subsequently applied for a Protection Visa on or about 6 May 2016.

   [1]           Exhibit 1 – Court Book (CB) p. 21.

2. In her visa application, when asked: [2]

   (a)“89. Why did you leave (Malaysia)?”, the applicant replied: “To visit Australia. To take a break from life in Malaysia.”

   (b)“90. What do you think will happen if you return to that country?”, the reply was: “Harm. Life is very difficult in Malaysia as there is so much racial hatred towards Indian-origin people. I fear that something worse is going to happen to me.”

   (c)“91. Did you experience harm in (Malaysia)?”, the applicant replied: “Yes, I have experienced racial abuse and I have been chased down the street because of my race. I was lucky to escape that time but do not think I’ll be lucky all the time.”

   (d)“92. Did you seek help within the country after the harm?”, the reply was: “Police do not help. They are racist too. They take the report but take no action.”

   (e)“93. Did you move, or try to move, to another part of that country to seek safety?”, the applicant replied: “It is the same in all parts of the country.”

   [2]           CB pp. 32-33.

3. By letter from the Department dated 24 May 2016, the applicant was invited to attend an interview before a delegate of the Minister on 4 July 2016 in relation to her visa application.

4. On 15 September 2016, the applicant was advised that her application for a protection visa had been refused on the ground that the delegate considered that the applicant had not demonstrated that Australia owed any protection obligations to her under the provisions of s. 32(2) of the Migration Act 1958 (Cth) (the Act).

5. The delegate addressed the question of whether the applicant was a refugee as defined under the provisions of s. 5H of the Act, and whether there was a real chance that the applicant would be persecuted, or whether she had a well-founded fear of persecution under the provisions of s. 5J of the Act.

6. The delegate considered country information at [20]-[23] of the delegate’s decision. The delegate was not satisfied that there was a real chance of persecution because of one or more of the reasons as set out in s. 5J(1)(a) of the Act.

7. The delegate similarly did not consider that the applicant was owed complementary protection under the provisions of s. 36(2)(aa) of the Act, in that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there was a real risk that the applicant would suffer harm.

8. The applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision of the delegate on 7 October 2016.

9. On 8 November 2017, the applicant was invited to attend a hearing before the Tribunal on 7 December 2017.

10. By an email from the applicant to the Tribunal dated 2 November 2017, the applicant asked to have the hearing before the Tribunal postponed because of what were described as “very hectic working conditions” in the stone fruit packing industry leading up to Christmas Eve.

11. By email dated 1 December 2017. The applicant was advised that her application to postpone the hearing was refused.

12. A hearing proceeded before the Tribunal on 7 December 2017.

13. At [3]-[7] of its reasons, the Tribunal correctly recorded the relevant criteria which had to be met for a person to be owed refugee protection obligations under s. 36(2)(a) of the Act, having regard to the provisions of ss. 5H and 5J of the Act.

14. At [11] of its reasons, the Tribunal recorded the matters as set out in [2] hereof.

15. The only recorded intimidation of the applicant in Malaysia, as noted by the Tribunal, was one occasion when the applicant stated that she was chased down a street on her way home by people of Malay ethnicity. The applicant said that she was unharmed, but she said she went to the police, who she said were of no assistance. There was another occasion of alleged harassment when a male person, who had allegedly confronted her outside her apartment door and “hit her ass”, was raised by the applicant, but no relevant details were provided.

16. The applicant had been working as a secretary for the managing director of an engineering firm for a three year period prior to her departure for Australia. The managing director was also a person of Indian-Malaysian ethnicity.

17. When analysing the applicant’s claims at [28]-[41] of its reasons, the Tribunal found as follows:

    28.The applicant's claims in the hearing were more detailed when compared to the claims in her earlier written application to the department.

    29. The Tribunal asked in detail about the incident of being chased by Malay people. The applicant had difficulty remembering the month of 2015 when this was said to occur. It is concern to the Tribunal that a matter so significant as to warrant a protection claim only has a vague recollection timeframe.

    30. The applicant gave concerning evidence about the making of the report to the police. Only when prompted about keeping a record of the report did the applicant state that she went to the police subsequent to her first report to try to get a written document. The country information about the Royal Malaysian Police under the DFAT Malaysia country report 2016, the contents of which are substantially similar in this regard to the 2018 equivalent report, was dealt with unsatisfactorily by the applicant. The applicant did not engage with the material about how this police force is a professional force. Instead she gave vague evidence about how the Indian ethnicity people are not listened to. The evidence had a flavour of only providing new detail when the Tribunal was puzzled by her alleged decision making. Therefore Tribunal finds that the applicant made no report to the police.

    31. The Tribunal is also so concerned about the alleged incident of being chased itself, the lack of detail associated with it, and the lack of recollection as to when it occurred that it finds that the incident did not occur. The credibility of the applicant was not present at this point.

    32. The Tribunal is also so concerned about the alleged incident of being struck a few months before leaving Malaysia at her front door, the lack of detail associated with it, and the lack recollection until later prompting in contradiction of her earlier statement that there was only one incident, and leads me to find that the incident did not occur. The credibility of the applicant was cast into further doubt at this point. I do not accept this evidence.

    33. The Tribunal ventilated matters to do with the applicant's life and identity. The Tribunal discussed the applicant's race, religion, nationality, membership of a particular social group, or political opinion. Information pertinent to a protection claim was not advanced further by the applicant in the hearing. The Tribunal also discussed the complementary protection provisions of the regulations, and it was not advanced by the applicant that there were substantial grounds for believing that there is a real chance of the applicant will suffer significant harm if returned to another country.

    34. The response of the applicant in regards to being an Indian - Malaysian ethnicity citizen of Malaysia was both vague and general. The applicant engage with DFAT country information is earlier described to do is discrimination against Indian ethnicity people in Malaysia. The applicant may very broad and general statements about how no preference is given. Instances such as being told that she should go back to her country were described in a desultory fashion. I do not accept this evidence.

    35. The applicant could not nominate the details about how she was discriminated against other than to say that she had had a lack of pay and advancement at her former employer or employers.

    36. Puzzlingly the applicant's former boss of three years for whom she was employed as a secretary, was also of Indian-Malaysian ethnicity. Her explanation that he was a wealthy man seemed irrelevant when the Tribunal asked the applicant as to how generalised descriptions of discrimination throughout Malaysia applied to her personally.

    37. I therefore find that the applicant is not credible in regards to how she was discriminated against in her complaint of discrimination by no means extent of persecution. Discrimination was only presented in very broad general terms describing the community and the Tribunal finds that the instances of discrimination that she has portrayed in the hearing and in her application did not occur.

    38. In all of this discussion the Tribunal has borne in mind and engaged with the applicant on the DFAT country information abovementioned which indicates that despite some low level discrimination, Indians generally do not experience discrimination or violence on a day-today basis.

    39. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    40. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

    41. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

18. On 12 June 2018, the Tribunal affirmed the decision of the delegate.

19. On 19 June 2018, the applicant filed an Originating Application for Review. The applicant’s Ground of Review was as set out in 8 paragraphs as follows:

    1.I arrived in Australia on 12^th February 2016 and applied for a protection visa on 6^th May 2016.

    2.My claim’s for the protection visa is about ‘Racism’ in my country (Malaysia) towards my ethnicity (Indian). The racial hatred and harms which occurred in my life personally.

    3.My claims to the Administrative Appeal Tribunal about a real incident been concerned as the incident did not occur and the credibility does not present at the point.

    4.My explanations towards all the real incident which had happened to me was not been concerned even in a humanitarian prospect. It puts me in an unsatisfactory feel.

    5.I did nominat the details about how I was discriminated by the opposite race in my country. Also, I believe there is nothing to do with my former employment/employer any my personal harms.

    6.The decision made by Administrative Appeals Tribunal towards my claims was unsatisfactory where they finalise it as not credible in regards how I was discriminated against in my complaint of discrimination. They claimed that discrimination was only presented in very broad general terms, where I say it is not general and it is personal. It happened to me.

    7.As a women, I believe the discriminations and harassments need to be considered in a protection prospect and should be respected under protection obligations.

    8.Thereby, I am seeking for a Judicial Review to reaffirm the decision made by the Administrative Appeals Tribunal.

20. The applicant did not file any written submissions, or otherwise put any evidence before the Court, other than as set out in her supporting affidavit filed on 19 June 2018. At the hearing before the Court, when asked if she wanted to make any submissions on her behalf, the applicant replied in the negative.

21. The Court accepts the submission made on behalf of the first respondent that Grounds 2-4 merely seek an impermissible merits review of the decision of the Tribunal. There was no basis for the Tribunal to be criticized. It raised and considered all relevant questions about the applicant’s claims with the applicant, only to be met with vague and non-specific responses. It was open for the Tribunal to find that the applicant was not a witness of credit.

22. As to Grounds 5 and 6, the applicant complained of discrimination within Malaysia whilst admitting that she had been able to maintain permanent and ongoing employment with an engineering company over a three-year period. The Tribunal addressed issues surrounding her employment, asking how generalised descriptions of discrimination throughout Malaysia, as alleged by the applicant, impacted directly upon her personally. The Tribunal was entitled to not accept the applicant’s claims in that regard. The Tribunal intellectually engaged upon that issue.

23. As to Ground 7, the applicant asserted that she was discriminated against because she was a woman, but she was unable to provide any persuasive evidence as to how that occurred. She put no material before the Tribunal in that regard.

24. To the extent that the applicant made any claims which were clearly articulated, the Tribunal properly addressed those claims. Having done so, it was entitled to make findings adverse to the applicant. [3]

    [3]           NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at

25. Another reasonable, logical and rational decision-maker could have arrived at the same decision as the Tribunal, based upon the facts before it. [4]

    [4]           Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Crennan and Bell JJ at

26. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

27. The Grounds of Review are without merit and are dismissed.

28. The Court will hear the parties as to costs.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       16 May 2024

            19 [60] per Black CJ, French and Selway JJ. 

[131].