DHG18 v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2023] FedCFamC2G 758

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DHG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 758

File number: MLG 1835 of 2018
Judgment of: JUDGE FORBES
Date of judgment: 25 August 2023
Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – statutory requirement for Tribunal to comply with Ministerial Direction No.56 – requirement to have regard to most recent country information – where more recent country information published after Tribunal hearing but before decision – whether Tribunal considered most recent country information – whether more recent information relevant to applicant’s claims - whether permissible to rely on older country information – materiality of alleged error – application dismissed
Legislation: Migration Act 1958 (Cth) s 5J, 36 and 499
Cases cited: BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737
Plaintiff S183 v Minister for Home Affairs (2022) 96 ALJR 464
Division: Division 2 General Federal Law
Number of paragraphs: 91
Date of hearing: 15 August 2023
Place: Melbourne
Applicant: In Person
Solicitor for the Respondent: Clayton Utz

ORDERS

MLG 1835 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

DHG18

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

order made by:

JUDGE FORBES

DATE OF ORDER:

25 AUGUST 2023

THE COURT ORDERS THAT:

1.The Applicant’s application for judicial review filed on 25 June 2018 be dismissed.

2.The Applicant pay the First Respondent’s costs which, in default of agreement, shall be in accordance with the scale prescribed in Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) as at 31 July 2023.

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

  1. In this matter, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 June 2018 to affirm the decision, by a delegate of the first respondent (Minister), to refuse to grant him a Protection (subclass 866) visa.

  2. The applicant claimed that as a Malaysian Indian Muslim (non-Malay Muslim) he does not have protection and security in Malaysia because of his race and/or religion and that the situation will prevail if he returns to Malaysia.  In particular, the applicant claimed that he would be denied employment due to his ethnicity and/or religion if he were to return to Malaysia or move location in Malaysia.  The Tribunal rejected these claims.

  3. The Tribunal rejected the applicant’s evidence as implausible and found his claims to be unconvincing. The Tribunal found the applicant was not a credible witness and that he had manufactured his claims. By reason of these findings, the Tribunal found that there was no real chance that the applicant would be harmed or face discrimination by reason of his ethnicity and/or religious status, nor was there any real chance he would be unable to support himself or his family if he were to return to Malaysia. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under section 36(2)(a) of the Migration Act 1958 (Cth) (the Act).

  4. Furthermore, the Tribunal also rejected the applicant’s claim that there was a real risk that he would be unable to support himself and that he would face significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia owed complementary protection obligations under s 36(2)(aa).

  5. In his amended application for judicial review, the applicant presses a single ground.  The applicant contends that in evaluating his protection claims, the Tribunal failed to comply with Ministerial Direction No.56 - Consideration of Protection visa applications (Direction 56) made under section 499 of the Act, by failing to have regard to the most up-to-date country information.

  6. The error is said to be that the Tribunal failed to have regard to paragraph [3.14] in the Department of Foreign Affairs and Trade (DFAT) Country Information Report Malaysia published on 19 April 2018 (the 2018 DFAT report) which contained information the applicant says was probative of the unemployment situation for Malaysian Indians relative to other Malaysians.

  7. For the reasons set out below, the ground is not made out and the application for review must be dismissed.

    BACKGROUND

  8. The following background has been derived from the outlines of submissions filed by the applicant and the Minister.  I have also had regard to the content of the court book filed by the Minister prior to the hearing.  Unless otherwise stated, the following matters are uncontroversial or not contested.

  9. The applicant is a citizen of Malaysia.  He arrived in Australia from Malaysia on 27 February 2016 on a student visa.  He applied for a protection visa on 25 May 2016.  He was 49 years of age at that time.

  10. The applicant was born in Malaysia to parents who are Malaysian citizens. In his protection visa application, the applicant identifies his ethnic group as ‘North Indian’. 

  11. The applicant’s employment history, as set out in his visa application, reveals that he has been consistently employed from 1992 until he left Malaysia in February 2016.  The applicant is also tertiary educated, having attained two bachelor level degrees (one in Malaysia and one in Australia) together with other certificates and diplomas.

  12. In his protection visa application, the applicant did not expressly claim that he had left Malaysia because he had been denied employment on account of his race or religion or that he had been denied a capacity to earn a livelihood which threatened his capacity to subsist.  His only employment related disclosure was in response to a question in the visa application about why he could not move to another part of Malaysia, to which he stated:

    “I am unable to transfer to another state or smaller town due to non-availability of work at these locations.”[1]

    [1] Court Book (CB) p 37

  13. On 15 September 2016, the delegate refused to grant the applicant the visa.  The delegate set out relevant sections of the 2016 DFAT country report on Malaysia (the 2016 DFAT report) in their decision[2]. 

    [2] CB p 63-64

    Tribunal's decision

  14. On 6 October 2016, the applicant applied to the Tribunal for merits review of the delegate’s decision.

  15. On 23 November 2017, the applicant attended a hearing before the Tribunal.

  16. Some months later, on 5 June 2018, the Tribunal made its decision to affirm the delegate’s decision to refuse the visa.

  17. The date of the hearing and the date of the decision assume some significance in this application for judicial review.

  18. It does not appear to be disputed that when the applicant attended the hearing before the Tribunal on 23 November 2017, the most up-to-date report available from DFAT was the 2016 DFAT report. However, the Tribunal did not make its decision to affirm the delegate's decision until 5 June 2018, by which time a more recent and up-to-date DFAT report had been published on 19 April 2018 (ie the 2018 DFAT report).

  19. As will be explained shortly, the Tribunal’s decision record makes reference to country information about Malaysia derived, inter alia, from the 2016 DFAT report and the 2018 DFAT report.

  20. At paragraph [13] of its reasons, the Tribunal observed that, in his written claims, the applicant had raised the difficulty of finding a job and a good salary in the context of being unable to relocate within Malaysia.  However, the Tribunal went on at paragraph [15] to observe that the applicant’s claims at the hearing were somewhat different and discussed in greater in detail and that these claims were to be preferred.

  21. The Tribunal summarised the applicant’s claims at paragraphs [34]-[35] as follows:

    34.The applicant's central claim is he does not have protection and security in Malaysia because of his race and/or religion and this situation will prevail if he returns to Malaysia.  This revolves around his rights were being ignored and there is a threat of harm and violence.  He said the persons threatening were not afraid of the law and that the matter had a religious connection.  When asked about the threat of violence he said that he did not mix with Malay Muslims.

    35.The applicant said that his rights as a minority are being pushed aside.  People are being converted to Islam.  The applicant is concerned about the rights of his daughter.  He wishes to have a successful plan to bring his daughter to Australia.

    36.The applicant said that there could be a riot.  When queried as to whether discrimination was being suffered rather than persecution, the applicant said that he had not been harassed, nor had he been persecuted by anybody at this moment.  The applicant said that if he were to join a non-government organisation NGO then “they would target me”.  Again, there is no evidence before me that he has joined such an organisation or plans to.

  22. Specifically in relation to employment, the Tribunal noted at [38] that the applicant said he would be denied employment due to his ethnicity and/or religion if he were to move location in Malaysia.  However, the Tribunal considered this claim to be puzzling as the applicant had enjoyed stable employment and was university educated.  The Tribunal also noted that the applicant had not elaborated on what the problem was for him in particular parts of Malaysia.

  23. The Tribunal found that the applicant’s claims were supported with a series of illogical and speculative claims which led the Tribunal to disbelieve them[3].  His descriptions about violence were vague and speculative and he provided no evidence of harm he had suffered or future harm he was likely to face[4]. The Tribunal found the applicant’s evidence to be implausible because he was unable to explain the logic of his fears and apprehensions[5].  The Tribunal had serious concerns about the applicant’s credibility[6].

    [3] Tribunal’s Statement of Decision and Reasons at [37]

    [4] Tribunal’s Statement of Decision and Reasons at [39]

    [5] Tribunal’s Statement of Decision and Reasons at [40]

    [6] Tribunal’s Statement of Decision and Reasons at [40]

  24. At paragraph [41], the Tribunal rejected the applicant’s claim that he would be persecuted or face possible joblessness in Malaysia.  This was rejected on the basis that the applicant had held employment throughout his life at various periods and that he had not given any indication on how that position would be different should he return.  The Tribunal found that the applicant was still of working age and that he had not submitted information about any other disadvantage or impairment.

  25. The Tribunal concluded that the applicant may have experienced frustrating and possibly demoralising situations because of the economic and political milieu in Malaysia, but not cases of persecution[7].  His claims of discrimination were considered to be “light” and the Tribunal found no reason to conclude that the applicant had suffered serious harm or persecution.

    [7] Tribunal’s Statement of Decision and Reasons at [42]

  26. As the Minister subsequently submitted, these findings and conclusions were reached by the Tribunal because of the paucity of evidence to support the applicant’s claim that he would face difficulty finding employment, and the inconsistency between his claims and the applicant’s sound employment and education history.

  27. Relevantly, at [44] the Tribunal then continued on to consider country information.  There the Tribunal stated:

    44.The applicant did not meaningfully engage with a Department of Foreign Affairs and Trade country report as quoted in the delegate's decision maters [sic] arising from it in the hearing (Australian Department of Foreign Affairs and Trade Country Report on Malaysia).  The relevant report here is the 2016 edition report.  The 2018 updated report expresses the same concepts in substantially similar or identical terms

  28. At [46] the Tribunal concluded that the applicant’s situation “amounts to no more than liking life better in Australia”. The Tribunal went on at [49]-[50] to conclude that the applicant did not have a well-founded fear of persecution if he returned to Malaysia, did not meet the refugee criterion in section 36(2)(a) and, for the same reasons, did not meet the complementary protection criterion in s 36(2)(aa).

    Application for judicial review

  29. On 25 June 2018, the applicant filed an application seeking judicial review of the Tribunal’s decision.  The original application identified eight grounds of review, but these were later abandoned in an amended application which was filed prior to the hearing.

  30. As stated earlier, the sole ground of review is that the Tribunal failed to comply with Ministerial Direction No. 56 - Consideration of Protection visa applications made under section 499 of the Act, by failing to have regard to the relevant part of a country information report prepared by DFAT.

  31. There appears to be consensus that three issues arise from the application for judicial review, namely:

    (a)whether paragraph [3.14] of the 2018 DFAT report was relevant to the Tribunal's statutory task of reviewing the delegate's decision to refuse the visa;

    (b)if so, whether the Tribunal took paragraph [3.14] of the 2018 DFAT report into account; and

    (c)if the Tribunal was required to take the 2018 DFAT report into account but failed to do so, whether that error was material.

    Relevant statutory scheme

  32. Section 499(2A) of the Act requires the Tribunal to comply with a direction given by the Minister under s 499(1). Direction 56 relevantly provides that:

    3. Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision-maker, the decision-maker must take into account that assessment, where relevant, in making their decision.  The decision-maker is not precluded from considering other relevant information about the country. (underlining added)

  33. The Minister acknowledges that the obligation arising under section 499(1) and Direction 56 required the Tribunal to have regard to the most recent and up-to-date DFAT report , namely the 2018 DFAT report.

    Applicant’s submissions

  34. The applicant, who was self-represented, was assisted by a Malay interpreter at the hearing. He sought to rely on a written submission filed on 25 July 2023 and a reply filed on 7 August 2023.

  35. Meaning no disrespect to the applicant, it is clear that the very polished submissions filed on his behalf had been prepared by a person with extensive experience in migration and administrative law. Although it was clear that he had a reasonable command of English, he was not able to develop the submissions orally, but given the quality of the written material that did not prejudice him at all.

  36. The applicant submits, and the Minister concedes, that Direction 56 requires the Tribunal to have regard to the most recent and up-to-date DFAT report.  The most up-to-date report at the time of the Tribunal’s decision was the 2018 DFAT report.

  37. The applicant submits that notwithstanding this clear obligation, the Tribunal's only reference to the 2018 DFAT report is to be found at paragraph [44] of its reasons.  In that reference, the Tribunal merely states, after a reference to the 2016 DFAT report, that “The 2018 updated report expresses the same concepts in substantially similar or identical terms”.

  38. It is the applicant’s case that this scant statement at [44] of the reasons cannot satisfy the Court that the Tribunal in fact took the 2018 DFAT report into account as it was required by Direction 56 to do. The applicant submits that the 2018 DFAT report contains additional country information which was potentially probative of one of his claims for protection, namely that he would be denied employment by reason of his race or ethnicity. The applicant submits that this particular claim was capable of supporting a finding that he faced a real risk of serious harm as set out in section 5J(5) of the Act, including “denial of the capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist”[8]. 

    [8] Applicant’s Outline of Submissions at [12]

  39. The applicant’s case is that if the Tribunal failed to take the 2018 DFAT report into account, it excluded relevant country information and thereby constructively failed to perform its statutory task resulting in material error.

  40. To highlight the asserted importance of the 2018 DFAT report, the applicant refers to [23] of the Tribunal's reasons which extracted, in full, the section from the 2016 DFAT report which dealt with the status of Indian Malaysians.  That extract reads as follows (using the paragraph numbering from the 2016 DFAT report):

    Indian Malaysians

    3.11Indian Malaysians constitute the third largest ethnic group in Malaysia. There are no laws or constitutional provisions that directly discriminate against Indian Malaysians.

    3.12Indian Malaysians predominantly live in major urban centres, including Kuala Lumpur, Penang, Negeri Sembilan, Selangor and Perak on Peninsular Malaysia. Most Indian Malaysians form part of the working classes but according to 2010 official figures they also represent a high proportion of professionals (15.5 per cent) including 38 per cent of the entire medical workforce. Access to primary and secondary education is high, with 524 state- based Tamil-language schools across Malaysia. However, access to state-based tertiary education remains low with approximately six per cent of student places at public universities offered to Indian applicants. The predominant use of the Malay language can be a major barrier to Indian employment in the civil service. However, in 2015 an Indian Malaysian was appointed as Chief of Police in Kuala Lumpur, the first non-Malay to hold this position.

    3.13While some belong to the upper-middle class, many Indian Malaysians remain poor, in contrast to increased prosperity in the Malay and Chinese communities. Gangs comprised of Indians make up the majority of street-level criminal gangs and Indian Malaysians comprise a disproportionately high number of incarcerated persons, with some figures suggesting they represent up to 48 per cent of the prison population.

    3.14Indian Malaysians freely participate in political life. The Malaysian Indian Congress is part of the ruling BN coalition but does not necessarily receive support from the bulk of the Malaysian Indian community, with many voting for the opposition in the 2013 elections. There are several members of parliament of ethnic Indian origin and three serving ministers within the current government as well as the current President of the Senate, appointed in April 2016.

    3.14DFAT assesses that while Indian Malaysians generally have a lower socio- economic position than bumiputera or Chinese Malaysians, they generally do not experience discrimination or violence on a day-to-day basis. However, they may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service.

  1. The 2018 DFAT report, which was issued in the months between the Tribunal hearing and the delivery of its decision, contains the following additional passage in the section which deals with Indian Malaysians.  The relevant paragraph [3.14] states:

    3.14Unemployment in the Indian Malaysian community is comparatively high.  The average unemployment rate for Indian males is 4 per cent compared to 2.9 per cent for Malaysian males overall.  The average unemployment rate for Indian females is 5.2 per cent compared to 3.2 per cent for Malaysian females overall.  Among unemployed Malaysian youths, Indians make up 10 per cent of the 15-19 age group, and 9 per cent of the 20-24 age group, which are higher proportions than the Indian share of the overall population …

  2. The applicant submits that information about the higher unemployment rates of the Indian ethnic group to which the applicant belonged, compared with the average for other ethnic groups in Malaysia, is relevant to his claim for protection.  Accordingly, it was information contained in the 2018 DFAT report, but not the 2016 DFAT report, to which Tribunal was required to have regard.

  3. The applicant then submits that the proper inference to be drawn from the decision record is that the Tribunal did not have regard to this relevant part of the 2018 DFAT report.  It is submitted that the Tribunal’s statement at [44] that the “2018 updated report expresses the same concepts in substantially similar or identical terms [as the 2016 report]” is factually wrong because nothing in the 2016 report addresses rates of unemployment for different ethnic groups.  The applicant submits that the statement at [44] could only have been made if the tribunal had overlooked or ignored paragraph [3.14] of the 2018 DFAT report. 

  4. Furthermore, the applicant submits that it is not sufficient for the Tribunal to merely refer to the 2018 DFAT report in some generalised way[9] as part of the evidence before it.  Given its asserted relevance, the applicant submits that the Tribunal should have referred to [3.14] specifically in the course of addressing the applicant’s employment-related claim.

    [9] BYD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 157 at [50]

    Materiality

  5. The applicant submits that the Tribunal’s error was material and therefore jurisdictional because the information in [3.14] suggested that Indian Malaysians faced substantially higher rates of unemployment[10] than other Malaysians.  He submits that the failure to consider that evidence was material for two reasons.

    [10] Applicant’s Outline of Submissions at [17]

  6. First, the applicant contends that it was irrelevant for the Tribunal to have taken into account the applicant’s failure to meaningfully engage with the 2016 DFAT report in circumstances where the 2018 DFAT report contained further relevant information not canvassed in the 2016 DFAT report. The applicant submits that if the information comparing unemployment rates between people of the applicant’s ethnicity and the rest of the population had been taken into account, that evidence would have supported the applicant’s claim of possible joblessness because of his ethnicity and thus might have resulted in the Tribunal reaching a different outcome.

  7. Secondly, the applicant submits that the Tribunal’s assessment of the credibility of his evidence and claims (that there was a real chance he would in future be denied employment due to his ethnicity) could not have been undertaken correctly without the benefit of the context provided by [3.14] of the 2018 DFAT report. The applicant (in his written reply) submits that paragraph [3.14] of the 2018 DFAT report provides important context for the assessment of those claims. Accordingly, it would be contrary to authority for the Minister to argue that the country information (including [3.14] of the 2018 DFAT report) ceased to have relevance after the Tribunal had disbelieved all of the plaintiff's claims[11].

    [11] Plaintiff S183/2021 v Minister for Home Affairs (2022) 96 ALJR 464 at [59] per Gordon J

    Minister's submissions

  8. In short, the Minister answers the three key issues in this application as follows:

    (a)firstly, the Court can be satisfied that the Tribunal did in fact have regard to the 2018 DFAT report as it was required to do by Direction 56.  If the Court is satisfied as to that fact, that is a complete answer to the application and it must be dismissed;

    (b)secondly, it was open to the Tribunal to find that paragraph [3.14] of the 2018 DFAT report was not relevant to its task and therefore there was no failure to comply with Direction 56; and

    (c)thirdly, and in any event, if there was judicial error for either of the two reasons above, that error was not material because even if the Tribunal had turned its mind to [3.14] there was no realistic possibility that it might have found that the applicant was at risk of serious harm.

  9. The Minister submits that on the face of the decision record it is clear that the Tribunal understood its obligation to comply with Direction 56 to take into account relevant country information assessments prepared by DFAT expressly for protection status determination purposes and to the extent that they are relevant to the decision under consideration.  This is self-evident at paragraph [8] of the Tribunal's reasons. 

  10. The Minister submits that it is also clear that the Tribunal did in fact have regard to both the 2016 and 2018 DFAT reports.

  11. The Minister submits that [44] of the reasons reveals that the Tribunal must have been aware of both the 2016 and 2018 DFAT reports.  The Tribunal considered that the 2016 DFAT report was relevant and noted that it had been discussed with the applicant and that he had failed to engage with it.  It is also submitted that [44] of the reasons reveals that the Tribunal engaged in a reasonable evaluative comparison between the two reports, leading to the finding that the 2018 DFAT report express the same concepts in substantially similar or identical terms as the 2016 DFAT report. The Minister submits that read fairly and without an eye attuned to error, paragraph [44] should be read to mean that the Tribunal had regard to the 2018 DFAT report but did not consider there to be anything in the updated report which raised anything of further relevance.

  12. The Minister submits that it was open to the Tribunal to find that the 2018 DFAT report did express the same concepts in similar terms to those contained in the 2016 DFAT report. Given that finding, the Minister submits that so long as the Tribunal had regard to the 2018 DFAT report, then it was perfectly permissible for it to refer to and rely on the earlier country information. 

  13. To illustrate his point, counsel for the Minister drew the Court's attention to [23] of the reasons where the Tribunal cited extensively from the 2016 DFAT report.  There the Tribunal set out paragraphs [3.11]-[3.15] of the 2016 DFAT report which the Minister submits paints a very clear picture of the scope and nature of the divide between the Malay population and the Indian Malay community in Malaysia.

  14. The Minister submits that Direction 56 only requires the Tribunal to take the most recent country information into account insofar as it is relevant.  Put another way, there is no requirement to take country information into account if it is not relevant.

  15. The Minister submits that the notion of “relevance” is contextual and is fact-dependent in every case.  In this matter, the matrix of matters which contextualises the possible relevance or irrelevance of the employment information in paragraph [3.14] of the 2018 DFAT report includes:

    (a)the content of the applicant’s visa application made in 2016 and the benign context in which his future employability in Malaysia was raised;

    (b)the applicant’s comprehensive history of ongoing employment in Malaysia for some decades prior to his departure to Australia;

    (c)the fact that the applicant is tertiary educated, holding two bachelor degrees and a number of other certificates and diplomas;

    (d)the fact that the applicant had been engaged in professional level employment for most of his career; and

    (e)that nowhere in his application or subsequently did the applicant claim a risk of harm from an inability to get employment.

  16. The Minister submits that the issue of the applicant’s employability on return to Malaysia arose in the most oblique manner.  It was never raised as a separate claim of harm in its own right or as a claim that the applicant stood to be persecuted or discriminated in his employment on account of his race or religion.  Rather, the applicant’s subjective belief that he would not be able to transfer to another state or town in Malaysia due to the “non-availability of work at those locations” arose collaterally in an answer to a question in the visa application form.

  17. The Minister submits that the additional paragraph [3.14] in the 2018 DFAT report adds little to the overall picture conveyed in the 2016 DFAT report.  First, it is submitted that only the first two sentences in paragraph are remotely relevant to the question of employability and even then they are expressed at the most general and non-specific level.  The information regarding unemployment rates is not relevantly broken down other than by reference to males and females.  Secondly, the Minister contends that the additional information in those two sentences simply adds some gloss or colour to the same overall picture as was conveyed in the 2016 DFAT report.  In those circumstances, it was hardly surprising and entirely reasonable for the Tribunal to have found at [44] that the 2018 DFAT report expressed the same concepts in similar terms. In other words the Tribunal had regard to the 2018 report, but found that it added nothing of substance

  18. In context, the Minister also submits that the first two sentences in [3.14] of the 2018 DFAT report were not relevant to its review of the delegate’s decision and therefore there can have been no failure to comply with Direction 56.

  19. The Minister referred to the Tribunal’s reasons at [38]-[41] and, in particular to [45] where the Tribunal found that the applicant had manufactured his claims. In light of that finding the Minister submits that it was open to the Tribunal, on all of the evidence, to have found that the applicant’s claims were not credible.  It was open then for to the Tribunal to take the view that the country information was not relevant to the assessment of the claims.

  20. The Minister sought to distinguish the decision of Gordon J in Plaintiff S183 v Minister for Home Affairs (2022) 96 ALJR 464, a decision cited by the applicant in his written reply submissions. In that case, a visa applicant contended that the delegate had failed to comply with section 499(2A) of the Act by failing to take into account certain country information. It was not in issue that DFAT had prepared a country information report in relation to Turkey and that the information was available to the delegate. Two questions fell to be decided, firstly, whether the country information report was relevant and, secondly, whether the delegate took into account.

  21. In relation to the first question, the Minister submitted, as it did here, that in circumstances where the delegate disbelieved all of the plaintiff’s claims, the country information had no relevance.  In relation to that submission her Honour stated at [59]:

    “[….]That submission misunderstands the nature and potential relevance of country information.  Such information provides context for the assessment of a visa applicant's claims.  It does not matter that, in the present case, the delegate was not satisfied that the plaintiff's claim to be a lesbian-as distinct from her claims to have suffered harm-was credible.  The enquiries are not siloed.  If the plaintiff's claims to have suffered harm were (or were not) consistent with the country information, that would be relevant not only to the plaintiff's claims to have suffered harm but also to the plaintiff's claim to be a lesbian.”

  22. In relation to the second question, namely whether the delegate took the country information into account, the Court in Plaintiff S183 noted that the only reference to country information in the decision record was in a list of material before the decision-maker which relevantly referred to “country information as footnoted throughout the decision record”[12].  However, there was no country information footnoted in the decision record, leading to the inference that it had not been considered and that the applicant’s claims had been rejected without referring to it.

    [12] Plaintiff S183 v Minister for Home Affairs (2022) 96 ALJR 464 at [60]

  23. The Minister submitted that the circumstances in the present case are altogether different from Plaintiff S183.  Here, both DFAT reports are explicitly referred to in the body of the Tribunal’s reasons.  The only relevant difference between the 2016 DFAT report and 2018 DFAT report are the first two sentences of [3.14] which deal with unemployment in the most general sense.  Here, the additional few words were expressed in such general terms, that they could not possibly be regarded as relevant to the assessment of the applicant’s protection claims. It is submitted that there is nothing about those two sentences which could possibly have had the effect of requiring the Tribunal to refocus the contextual lens through which it assessed the applicant’s claims. 

    Materiality

  24. Finally, the Minister submits that if contrary to its submissions the Court should find error, any error by the Tribunal was not material when assessed against the background of all the relevant facts.

  25. Counsel for the Minister submitted that it is entirely fanciful to suggest the Tribunal might have taken a different view of the applicant’s claims for protection if it had taken into account the first two sentences of [3.14] the 2018 DFAT report. 

  26. Although the 2018 DFAT report observes that there is a comparatively higher level of unemployment in the Indian Malay population relative to the Malay population, the absolute unemployment rate is still low and the proper inference to draw from the whole of the report is that unemployment is reflective of the Indian population’s lower socio-economic working class status and the nature of work typically performed by people on lower incomes.  However, it is submitted that the unemployment rate is not a statistic which relevantly informs the applicant’s employability.  The applicant as stated above, is a mature, highly-educated and experienced worker who has been continuously employed in professional positions for years.  His circumstances stand well apart from those addressed in the country information. 

    CONSIDERATION

  27. In BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291 (‘BMP15’), Justice O'Callaghan held that pursuant to section 499(2A) of the Act and Direction 56, the Tribunal is required to have regard to the most recent and up-to-date DFAT report.

  28. At the time of the Tribunal's decision, there was only one report that must be taken into account in order to comply with Direction 56, which was the 2018 DFAT report. If the Tribunal has relied only upon the 2016 DFAT report and has failed to consider the 2018 DFAT report, the Tribunal will have failed to comply with Direction 56 and will have committed jurisdictional error by failing to comply with its mandatory obligation in section 499(2A) of the Act.

  29. Based on this analysis, the question of whether or not jurisdictional error has been committed turns on whether the Tribunal took into account the 2018 DFAT report.

  30. The Minister submits, and I accept, that if the 2018 DFAT report was taken into account as the most up-to-date country information, as required by Direction 56, there is nothing wrong with the Tribunal also relying upon older country information, provided that the older country information isn't flatly wrong or contradicts the more recent information[13].  Indeed, even Direction 56 itself expressly provides that a decision-maker is not precluded from considering other relevant information about the country.

    [13] BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291 at [35]

  31. As the Full Court reiterated in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (‘MZYTS’) at [74][14]:

    That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant's circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal's reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction.

    [14] See also BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291 at [36]

  32. In BMP15, Justice O'Callaghan found that the Tribunal did not have regard to the most recent and up-to-date DFAT report as it was required to do pursuant to its statutory obligation in section 499(2A) of the Act. His Honour found that a more recent DFAT report to which the Tribunal was required to have regard was different in a critical respect from the earlier DFAT report and that the Tribunal had not provided any explanation (or, as the Full Court put it in MZYTS’, an “evaluative process”), including whether it was “other relevant information” within the meaning of the Ministerial Direction.  Accordingly, his Honour found that reliance on the earlier report without explanation constituted a failure to comply with the ministerial direction[15].

    [15] BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291 at [37]-[38]

  33. In the present case, I am satisfied that the Tribunal did take into account the 2018 DFAT report as it was required to do pursuant to s 499(2A) of the Act and Direction 56.

  34. In the relevant section of the two DFAT reports which deals with “Indian Malaysians”, the only difference in text is [3.14] of the 2018 report.  Insofar as that paragraph contains any information which could remotely pertain to the applicant in this case, it is only the first two sentences which compares the unemployment rate for male Indian Malaysians against the average rate for other males.  The other sentences in [3.14] are self-evidently irrelevant or merely restate information from the 2016 DFAT report.

  35. Contrary to the applicant’s submissions, those two sentences do not state or even imply that the unemployment rate for Indian Malaysian males is significantly greater than for Malaysian males as a whole.  The absolute rates are relatively low at 4% and 2.9% respectively.  The weight which the applicant seeks to attribute to this information is greatly overstated. 

  36. I accept the Minister's submission that the “Indian Malaysian” sections of the 2016 DFAT report and 2018 DFAT report both convey essentially the same picture in essentially the same words and that the information regarding comparative unemployment simply adds a little gloss or refinement to that picture. In no way can it be said that the 2018 DFAT report was different in a critical respect from the 2016 DFAT report.

  37. At [23] of its reasons, the Tribunal set out in full the “Indian Malaysian” section from the 2016 DFAT report.  That was the report which was available to the Tribunal at the time of the hearing and the Tribunal records at [44] that the applicant did not meaningfully engage with the matters arising from it. The extract set out at [23] is the comparator for the Tribunal's consideration of any more recent report.

  1. In the final two sentences  in [44] of its decision, the Tribunal states:

    “[…]The relevant report here is the 2016 edition report. The 2018 updated report expresses the same concepts in substantially similar or identical terms.” 

  2. When the decision of the Tribunal is read fairly and as a whole, those sentences are unremarkable. The conclusion reached about the 2018 report, when compared to the content of the 2016 report, is in my view objectively correct and open. 

  3. More to the point, paragraph [44] explains the Tribunal's reliance on the earlier 2016 DFAT report and answers the alleged error.  First, the reference in [44] to the 2018 DFAT report suggests, without more, that the Tribunal was aware of it and had some regard to it. It was not overlooked. Secondly, it can be inferred from the Tribunal's finding that the more recent report expressed the same concepts in substantially similar or identical terms (to the 2016 DFAT report) that the Tribunal did engage in the sort of “evaluative process” envisaged by the Full Court in MZYTS. The Tribunal could not have made that comparative finding unless it was aware of what was in the 2018 DFAT report. Thirdly, having engaged in the evaluative process, the obvious inference is that the Tribunal was satisfied that the later report was not different in a critical respect from the earlier report, as was the case in BMP15.  Finally, it was therefore open to the Tribunal to rely upon the earlier and relevantly identical DFAT report because the older country information was not flatly wrong nor did it contradict the more recent information[16].

    [16] BMP15 v Minister for Immigration and Border Protection [2018] FCA 1291 at [35]

  4. Furthermore, it is difficult to see the relevance of [3.14] to the applicant’s circumstances and his claims for protection.  As observed by the Tribunal and again reiterated by the Minister in his submissions, the applicant here is a highly educated and experienced man who enjoyed decades of ongoing employment in Malaysia, usually in professional positions, prior to departing for Australia.  His characteristics set him apart from the cohort of working class poorer Indian Malays who are more likely to fall within the 4% unemployment figure. In my view, it was open in all the circumstances for the Tribunal to conclude that the unemployment comparison was not relevant to the applicant’s otherwise vague and unsubstantiated protection claims.

  5. In light of the discussion above, I am satisfied that the Tribunal did have regard to the relevant country information in the 2018 DFAT report in so far as it was relevant to the decision under review. I am satisfied that having done so, the Tribunal did take into account the 2018 DFAT report as it was required to do pursuant to section 499(2A) of the Act and Direction 56.

  6. Accordingly the ground of judicial review is not made out and the application should be dismissed.

    Materiality

  7. If I am wrong in my analysis and there is error in the Tribunal's decision, I am not satisfied that the error was material.

  8. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (‘SZMTA’) “materiality” was explained to involve a realistic possibility that the decision in fact made could have been different had the breach of the relevant statutory condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.

  9. In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [3], the plurality (Kiefel CJ, Gageler, Keane and Gleeson JJ) held that the explanation in SZMTA is sound in principle and should not be revisited.

  10. The information in [3.14] of the 2018 DFAT report did not suggest, as submitted by the applicant[17], that Indian Malaysians faced substantially higher rates of unemployment than other Malaysians.

    [17] Applicant’s Outline of Submissions at [17]

  11. Although the threshold for materiality is low and the standard of reasonable conjecture is undemanding[18], there must still be a realistic possibility that the Tribunal might have assessed the applicant’s claims for protection differently and reached a different decision if there had been no error.  Here I agree with the Minister that in all the circumstances of this case the prospect that the information in [3.14] could have led to a different decision is in the realm of fancy. The applicant has not persuaded me otherwise.

    [18] Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 at [33]

  12. Accordingly, I am not satisfied that any error on the part of the Tribunal is jurisdictional.

    Disposition

  13. For the reasons set out above, the application must be dismissed.

  14. The applicant should pay the Minister's costs to be agreed, or in the absence of agreement in accordance with the scale set out in Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)

I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.

Associate:

Dated:       25 August 2023


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