DHJ17 v Minister for Immigration and Border Protection
[2019] FCA 1912
•18 November 2019
FEDERAL COURT OF AUSTRALIA
DHJ17 v Minister for Immigration and Border Protection [2019] FCA 1912
Appeal from: DHJ17 v Minister for Immigration & Anor [2019] FCCA 1466 File number: SAD 136 of 2019 Judge: BESANKO J Date of judgment: 18 November 2019 Legislation: Migration Act 1958 (Cth) s 36 Date of hearing: 18 November 2019 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 17 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Ms B Griffin of the Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent entered a Submitting Notice, save as to costs ORDERS
SAD 136 of 2019 BETWEEN: DHJ17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
18 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO J:
INTRODUCTION
This is an appeal from an order made by the Federal Circuit Court of Australia on 14 June 2019 that the appellant’s application for judicial review of the decision of the Administrative Appeals Tribunal (the Tribunal) be dismissed.
The appellant is a citizen of Malaysia and he travelled to Australia on a three month temporary Electronic Travel Authority (ETA) subclass 601 visa. He arrived in Australia on 21 June 2016 and he made an application for a protection visa on 29 July 2016. His application was considered by a delegate of the Minister of Immigration and Border Protection and, by letter dated 8 December 2016, he was advised that the delegate had refused his application for a protection visa. He sought a review of the delegate’s decision by the Tribunal. On 3 July 2017, the Tribunal affirmed the decision not to grant the appellant a protection visa.
On 21 July 2017, the appellant issued an application for judicial review of the Tribunal’s decision. The appellant’s application came on for hearing before the Federal Circuit Court on 7 May 2019 and, as I have said, the Federal Circuit Court made an order dismissing the application on 14 June 2019 (DHJ17 v Minister for Immigration & Anor [2019] FCCA 1466).
The primary judge noted that the appellant made his application for judicial review on 3 July 2017 and that the appellant was self-represented. He noted that the appellant had appeared before the Court with the assistance of an interpreter in the Malay language. The primary judge set out the one ground of the application for judicial review relied on by the appellant.
The primary judge recorded the fact that on 30 August 2017, a Registrar of the Federal Circuit Court gave the appellant leave to file and serve any amended application by 24 November 2017 and leave to file and serve such further material, including transcripts of the proceeding before the Tribunal, that he might choose to rely on. Furthermore, the Registrar made an order that the appellant file and serve an outline of submissions at least 10 business days prior to the hearing date. The primary judge noted that the appellant had not filed and served any amended application or further materials and did not file and serve an outline of submissions.
The appellant lodged his Notice of Appeal on 28 June 2019. The grounds of appeal are as follows:
1.I am the Applicant and I am authorised to make this affidavit.
2.There is jurisdictional error in judgment.
3.
I had appealed decision of Administrative Appeals Tribunal in Federal Circuit Court. Federal Circuit court did not find Jurisdictional error in Tribunals Decision. I request you to reconsider the case as there is Jurisdictional error in decision.
Respected judge of Federal circuit court mentioned in decision that “Paragraph 20: The applicant has not demonstrated the Jurisdictional error was committed by the tribunal in either the process that it undertook or the decision that it made.” .I want to state that when I went through hard time in my country and its unsafe for my life and government is against me then how can I get more proof. Tribunal is not satisfied with my oral evidence nor was court. What else can I do. Government from my country is not going to give in writing that they will kill me. I don’t know what proof to bring. Its not possible for anyone to get proof from government.
(Original formatting retained.)
A Registrar of this Court made timetabling orders in this appeal and those orders included orders as to the filing and serving of written outlines of submissions. The appellant has not filed an outline of submissions. The first respondent has filed an outline of submissions which is dated 11 November 2019.
THE TRIBUNAL’S DECISION
The Tribunal set out the written claims which the appellant made in support of his application. They are as follows:
Malaysia’s economic situation is severe enough. The pressure of living is increasing, all the people are beginning to find way [sic] out because the existing government has been unable to change the current situation and the situation is becomes [sic] worse from day to day. The Malaysian Ringgit is worsening compared to other countries
He and several friends made an open protest to the government of Malaysia (GoM). Because of this there were orders that they should be arrested and imprisoned. Many “Yellow Shirt” protestors were not given a chance to get up and protest. The situation is not quite peaceful and safe.
He came to Australia for protection and to live in a more secure and peaceful life with a more democratic government.
The GoM has identified those involved in the assembly, participants were blacklisted and if he returns to Malaysia he will be arrested.
The GoM authorities will find him anywhere and it would not be safe. He will not have any protection or justice.
He did not attempt to relocate because the police are everywhere and he thinks Australia is the best place to get protections and live in peace.
The appellant said, in addition, that he participated in protests against the government of Malaysia in April 2016 and that he protested in support of the independence of Sabah from Malaysia. He gave as his reason for protesting that he did not want the Malaysian government to take revenue from oil and timber produced in Sabah. The appellant said that he arranged for about 20 people to come to the protest from his village and that a permit was issued authorising the protest. The appellant said that there were about 300 people and pro-government people attacked them. The appellant did not know the people who attacked them. The appellant said that nothing happened to him at the protest, but that he felt threatened. He said that a friend of his who was a leader was attacked and his car was damaged. He subsequently feared for his life and escaped to Australia. The Tribunal asked the appellant a number of questions about the protest, his activities in Malaysia, alleged threats on a messaging service, “WhatsApp”, the appellant’s claim that he was followed and his fears about returning to Malaysia. The Tribunal pointed out to the appellant what appeared to be inconsistencies or omissions in his written claims and his evidence at the hearing. The Tribunal then referred to country information.
The Tribunal found that the appellant was a citizen of Malaysia. It said that it did not find him to be a credible witness and that it found his evidence about his political activity in Malaysia to be vague and inconsistent with his written claims. It referred to inconsistencies between the appellant’s written claims and his evidence at the hearing before the Tribunal. It described these inconsistencies as significant and it said that it did not consider that they were due to translating or interpreting errors associated with his original claim. The Tribunal said:
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.
The Tribunal concluded that the appellant was not a refugee within s 36(2)(a) of the Migration Act 1958 (Cth) (the Act) and nor was he entitled to complementary protection within s 36(2)(aa) of the Act.
THE FEDERAL CIRCUIT COURT
The primary judge noted that the appellant made brief oral submissions which were all directed to the merits of the Tribunal decision itself. The primary judge said that they added nothing to the ground of application and that the appellant simply disputed the fact that the Tribunal had not found in his favour.
The primary judge said that the ground in the application for judicial review did not identify a jurisdictional error. He noted that the appellant was unrepresented and he said that it was appropriate to consider the claim on its face. The primary judge considered that the complaint was that the Tribunal did not accept his evidence. The primary judge said that 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. He said that it was a matter for the Tribunal to evaluate the evidence and accept or reject it as the finder of fact. The primary judge said that there was no jurisdictional error in the Tribunal’s credibility findings. The Tribunal summarised and applied the relevant legislation in a manner that was unexceptional and 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”. The primary judge considered that the appellant’s application was, in effect, an invitation for impermissible merits review. He concluded that no jurisdictional error had been identified.
THE APPEAL TO THIS COURT
The appellant was unrepresented before this Court. He had an interpreter in the Malay language. He made brief oral submissions in support of his appeal. The appellant said that he was from Sabah and that Sabah’s attempt to secure independence from Malaysia made the situation serious for him. He said that the Tribunal did not believe his evidence as to the seriousness of the situation in Sabah. The Tribunal was aware of these claims. It found that the appellant’s evidence was vague and lacking in credibility. The Tribunal referred to the appellant’s statement that there was no evidence about the protest activity.
This morning, the appellant said that part of his complaint was that he had no opportunity to present evidence. The answer to this complaint was provided by the first respondent. There were a number of problems for the appellant which were identified as early as the delegate’s decision, not just the lack of supporting evidence, including the appellant’s lack of adequate explanation and details regarding his claims and available country information. These remained problems for the appellant at the Tribunal hearing. At no time has the appellant been denied an opportunity to provide such explanation and supporting evidence as he may have.
The appellant has not identified any error in the reasons of the primary judge. As the appellant is unrepresented, I have considered the reasons of the Tribunal more generally. The Tribunal found that the appellant was not a credible witness because his evidence was vague and inconsistent with his written claims. As I have already said, those conclusions were open to the Tribunal. The Tribunal relied on country information in a way which did not involve jurisdictional error. In my opinion, there was no jurisdictional error.
CONCLUSION
There is no jurisdictional error in the Tribunal’s decision. The appeal must be dismissed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 20 November 2019
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