DHJ17 v Minister for Immigration

[2019] FCCA 1466

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHJ17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1466

Catchwords:
MIGRATION – Visa – where applicant disputes findings of Tribunal – request for impermissible merits review – no jurisdictional error demonstrates – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa) and 5J(1)(a)

Cases cited:

WZAVW v Minister for Immigration & Border Protection [2016] FCA 760

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2

Applicant: DHJ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 299 of 2017

Judgment of: Judge Heffernan

Hearing date: 7 May 2019

Date of Last Submission: 7 May 2019

Delivered at: Adelaide

Delivered on: 14 June 2019

REPRESENTATION

The Applicant: In person with an interpreter

Solicitors for the Respondents: Ms C Stokes for the Australian Government Solicitors

ORDERS

1. The application is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of FIVE THOUSAND DOLLARS ($5,000).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 299 of 2017

DHJ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for constitutional writs in relation to a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 3 July 2017.  That decision affirmed an earlier decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa (‘the visa’).  The applicant was self-represented.  He appeared before me with the assistance of an interpreter in the Malay language.  His Initiating Application raises one ground as follows:

   “Tribunal in conclusion said that

   “The Tribunal did not find the applicant to be a credible witness. The Tribunal finds the applicant’s evidence about his political activity in Malaysia to be vague and inconsistent with his written claims.

   37.    For example, at the hearing the applicant claims he took part in one protest in April 2016 regarding economic independence for Sabah. He did not provide any evidence about being a member of any political party associated with independence in Sarawak. He claims he recruited about 20 members to the protest. The protest came under attack from pro-government people. He did not suffer any harm and reported the pro-government protesters to the police.

   38.    In his written claims the applicant said he and several friends made an open protest to the government of Malaysia and as a consequence orders were made that they should be arrested and imprisoned. His written claims suggest he was part of the “yellow shirt” movement and came to the adverse attention of the authorities. At the hearing he made no claims that he was threatened with arrest and imprisonment by the authorities. The applicant only referred to the “yellow shirt” movement when prompted by the Tribunal.

   39.    The Tribunal finds the inconsistencies in the applicant’s evidence significant and does not accept they are due to translating or interpreting errors associated with his original claim.

   40.    The Tribunal does not accept any of the claims made by the applicant or that he genuinely holds fear of any harm should he return to Malaysia. The Tribunal has had regard to the applicant’s evidence at the hearing and does not accept the applicant took part in any political protest activity in Malaysia. The Tribunal finds the applicant is not a member of any political party. He has never been arrested, detained or come to the adverse attention of the Malaysian authorities. He has not suffered any significant harm or serious harm in Malaysia because of his actual or imputed political opinion. He was issued a Malaysian passport in May 2016 and was able to freely leave Malaysia and travel to Australia."

   I explained tribunal about my situation. The tribunal ask for proof of protest. How do I get evidence of protest? We donot get permission for protest from government. If we get the permission then it will not be call protest. Government donot want people to protest against it. Tribunals says I am not part of any political group there is no risk to my life. Tribunals member make judgement on his intuitions without any proof. There is problem in Malaysia and people get into trouble from govement. I was not injured in the anti govment protest that is my good luck. Tribunal say I donot get hurt so they want me to get hurt only then I get the visa. Tribunal make jurisdictional error in decision.”

   (reproduced verbatim)

2. On 30 August 2017, a Registrar of the Court gave leave to the applicant to file and serve any amended application by 24 November 2017.  It also gave leave to him to file and serve such further material, including transcripts of the proceedings before the second respondent, that he might choose to rely on.  Finally, it ordered the applicant to file and serve an outline of submissions at least 10 business days prior to the hearing date.  The applicant has not filed and served any amended application or further materials and did not file and serve an outline of submissions.

Background

1. The applicant is a national of Malaysia and is approximately 43 years old.  He arrived in Australia in June 2016.  At that time, he had an Electronic Travel Authority (Subclass 601) visa, which was valid for three months.  On 9 August, he applied for the protection visa.  That application was refused by a delegate of the Minister on 8 December 2016 and the applicant applied for a merits review before the Administrative Appeals Tribunal on 13 December 2016. 

2. The Tribunal invited the applicant to attend a hearing with respect to his application.  That hearing occurred on 31 May 2017 when the applicant appeared to give evidence and make submissions with the assistance of an interpreter.  On 3 July 2017, the Tribunal affirmed the decision of the delegate. 

3. The basis of the applicant’s claim for a protection visa is that he fears harm from the Malaysian authorities.  This is due to his involvement, along with his friends, in a protest that was organised against the government.  He told the Tribunal that orders had been made that he and other persons who participated in the protest should be arrested and imprisoned.  He claimed to have been part of the ‘Yellow Shirt’ movement.

4. The Tribunal considered the applicant’s claims and gave reasonably detailed reasons for its decision.  It noted that he claimed to have participated in protests against the Malaysian Government in April 2016 supporting the independence of Sabah from Malaysia.  He was ideologically opposed to the Malaysian Government receiving revenues from oil and timber produced in Sabah.  On the applicant’s claims, he was the organiser of about 20 people from his village who attended the protest of about 300 protesters in total. 

5. During the course of the protest, he claimed that pro-government people attacked them.  He felt threatened at that time, although suffered no injury during the protest.  He claimed that one of his friends was attacked and had his car damaged.  As a result, the applicant claimed to have made a complaint to police but he subsequently feared for his life and he escaped to Australia.  Whilst still in Malaysia, the applicant says that he was threatened on the messaging service ‘WhatsApp’.  He was asked to expand on the content and provenance of the message but was not able to do so.[1]

   [1]     Court Book (‘CB’), p 111 at para [19].

6. On his evidence, he claimed that his friend had received a message from pro-government people advising that they would be attacked, but the applicant did not know how it was that his friend came to be included in a discussion with pro-government people.  The Tribunal did not accept the applicant’s evidence about that matter, considering it to be vague, lacking in detail and credibility.  In particular, the Tribunal was concerned that the applicant could not clarify how the message was relevant to him and his fear of persecution.[2]

   [2] CB p 111 at para [20].

7. The applicant also claimed to have been followed and said that his car was flagged down on one occasion.  The Tribunal noted that he was not able to expand or clarify on that claim.  He claimed to have been told by his family that the situation had not settled in Malaysia and as recently as December 2016 a friend of his had been arrested.  The Tribunal noted that the applicant did not provide any evidence of who his friend was or the reasons for his arrest. 

8. The Tribunal noted and drew to the applicant’s attention that it regarded his evidence as being inconsistent from his earlier written claims, to which the applicant replied that a friend had helped him complete the earlier form and that it may have contained interpreting errors.[3]

   [3]     CB p 111 at paras [23] – [26].

9. The Tribunal did not find the applicant to be credible and, in particular, it found as follows:

   a)His account of his political involvement in Malaysia was vague and inconsistent with his written claims;

   b)His evidence contained significant inconsistencies which the Tribunal did not accept related to translating or interpreting errors in the original claim; and

   c)The Tribunal did not accept any of the applicant’s claims or that he genuinely held fear of harm should he return to Malaysia. 

10. It was satisfied that he did not face a risk of coming to the adverse attention of the police or the authorities because he had attended a single political rally in the past. It was satisfied that an ordinary protester with the applicant’s profile would be free to take part in protests in future in Malaysia. It found that he would not be denied access to police protection for any of the reasons identified in s.5J(1)(a) of the Migration Act 1958 (Cth), (‘the Act’) in the reasonably foreseeable future.

11. In addition, the Tribunal was not satisfied that the applicant was owed complementary protection obligations because it did not accept that there was a real risk that he would suffer significant harm as a necessary and foreseeable consequence of his return to Malaysia.  As a result, the Tribunal affirmed the decision of the delegate. 

Submissions

1. The applicant made brief oral submissions.  Those submissions were all directed to the merits of the Tribunal decision itself.  They added nothing to the ground of application.  The applicant attended at Court and simply disputed the fact that the Tribunal had not found in his favour.

2. The first respondent relied on its detailed outline of submissions.

Consideration

1. The ground of application does not identify a jurisdictional error made by the Tribunal.  The mere assertion “Tribunal make jurisdictional error in decision” is not sufficient to identify the basis on which he says such error was made.  For that reason alone, this application would stand to be dismissed.[4]

   [4]     WZAVW v Minister for Immigration & Border Protection [2016] FCA 760.

2. However, given that the applicant is self-represented, it is appropriate to consider the claim on its face.  The ground of application is clearly a complaint that the Tribunal did not accept his evidence.  The Tribunal gave clear, intelligible and rational reasons and a rational justification for why it did not accept his evidence and the basis for its decision.  It is a matter for the Tribunal to evaluate the evidence and accept or reject it as the finder of fact.[5]

   [5]     NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at para [11].

3. It is well-established that the Tribunal is not simply required to accept the applicant’s claim without scrutiny or uncritically.  The Tribunal gave a clear explanation as to why it made the credibility findings that it did.  Its findings were, as the first respondent submitted, based on rational grounds and matters that were logically probative[6] and it does not appear that they contain any jurisdictional error. Further, the Tribunal summarised and applied the relevant legislation in a manner that was unexceptionable. The conclusions it reached with respect to ss.36(2)(a) and 36(2)(aa) of the Act were clearly open in light of the factual findings it made.

   [6]     DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2.

4. This application amounts to a request for an impermissible merits review.  The observation of the Full Court in NAHI’s case is apposite to this matter:

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal.  In many cases, those exceptions were purely on the basis that the appellants disagree with the findings.  In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal.  To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act.  As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed.  Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”[7]

   [7]     NAHI, op cit, at para [10].

5. The applicant has not demonstrated that jurisdictional error was committed by the Tribunal in either the process that it undertook or the decision that it made.

6. For those reasons, I dismiss the application and make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Associate: 

Date:  14 June 2019