DJF18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1327
•4 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DJF18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1327
File number(s): MLG 1888 of 2018 Judgment of: JUDGE CUTHBERTSON Date of judgment: 4 December 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – protection claim relating to religious beliefs and political activities – whether the Tribunal adopted an incorrect standard or onus of proof – whether the Tribunal wrongly rejected evidence – whether the Tribunal failed to take into account relevant consideration when assessing the applicant’s credibility – whether the Tribunal erred in rejecting the applicant’s claims – whether the Tribunal decided the review otherwise than in accordance with its merits – whether the Tribunal conducted the review in accordance with the requirements of Division 4 of Part 7 of the Migration Act 1958 (Cth) – whether the Tribunal’s finding were based on valid grounds – no arguable case of jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5AAA, 414, 415, 424A, 425, 425A, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 11.01
Cases cited: Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14
Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166
ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
AWJ15 v Minister for Immigration and Border Protection [2016] FCA 197
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000)168 ALR 407; [2000] HCA 1
Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of last submission/s: 28 October 2024 Date of hearing: 28 October 2024 Place: Melbourne Applicant: In person Counsel for the First Respondent: Ms K. Petrovski Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1888 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DJF18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
4 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The “Immigration Assessment Authority” be removed as a party to the proceeding.
3.The “Administrative Review Tribunal” be included as a party to the proceeding.
4.The application filed on 29 June 2018 is dismissed.
5.The applicant pay the first respondent’s costs of and incidental to these proceedings, fixed in the sum 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 CUTHBERTSON
INTRODUCTION
The applicant, a citizen of Malaysia, applied for a Protection (Class XA) (Subclass 866) visa on 29 March 2016. He claimed a fear of returning to Malaysia because he would be arrested, imprisoned and fined due to his membership of the political association Bersih. Having been notified his first visa application was invalid, he made a further visa application on 28 June 2016. In this application, the applicant also claimed to be bullied and persecuted on the basis of his Christian faith. On 12 September 2016, a delegate of the first respondent (the Minister) refused to grant the applicant the visa. The applicant applied to the Administrative Appeals Tribunal for merits review of the delegate’s decision on 4 October 2016 (review application). On 25 May 2018, the Tribunal affirmed the delegate’s decision.
On 29 June 2018, the applicant applied for judicial review of the Tribunal’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act). The Minister opposes the application. For the reasons that follow, the application is dismissed.
BACKGROUND
The Visa applications
In his first visa application, the applicant claimed to be a member of Bersih which he described as “an assembly group” which “exists as Malaysia’s electoral system is unfair”. He claimed he would be arrested if he returned to Malaysia because the police were looking for anyone who joins Bersih. He claimed the government wanted to imprison and impose fines on those who joined the group. He stated he had not experienced harm in Malaysia. He also claimed not to be able to move elsewhere in the country as the government would still be able to find him.
In his second visa application, the applicant repeated his claims in respect of Bersih and included reference to the newly enacted SOSMA laws which he said permitted the detention of a person without trial indefinitely. He also referred to being “vocal on the ‘Allah’ issue” after the government unreasonably prohibited Malaysian Catholics from using the word “Allah” in their magazine. He stated he believed he would be arrested under the SOSMA laws and his life may be at risk as there had been deaths in police custody. In this application he claimed to have experienced harm when he was harassed by a group of Malay men who accused him of being anti-government and threatened him. He claimed reference was made to his Indian heritage and he was told he did not belong in Malaysia. He claimed the authorities “will be waiting to finish me off as I am from the other side of the camp”. He repeated his claim that he was unable to relocate within Malaysia as he could be tracked down easily.
On 12 September 2016, a delegate of the Minister refused to grant the applicant the visa (delegate’s decision).
The delegate’s decision
The delegate found that the applicant was not a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(b) or (aa) of the Act, and was not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant: ss 36(2)(b) and 36(2)(c) of the Act.
The delegate referred to multiple reports, material, and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) on Malaysia when undertaking its assessment of the applicant’s claims. The delegate noted the DFAT country information indicated Bersih rallies attracted large numbers of participants, in some cases approximately 100,000 people. That information revealed high profile politicians and activists could face penalties for their involvement in anti-government protests. As to the Security Offenses (Special Measures) Act (SOSMA), the delegate noted it had been used to penalise high profile politicians and activists.
The delegate noted the applicant had not provided details of the extent of his involvement in Bersih’s activities or explained how his opinions and activities would bring him to the attention of Malaysian authorities. They considered the applicant had not outlined his claims in sufficient detail to identify the cause of any potential risk of persecution in his particular circumstances. They noted no evidence had been provided to support his claims. The evidence before the delegate also did not enable them to find the applicant was a key figure or an organiser in any anti-government activity.
The delegate also took into account country information relating to the treatment of Indian Malaysians, noting they generally do not experience discrimination or violence on a day-to-day basis. The country information also indicated there are effective law enforcement agencies and a judicial system for victims’ protection. On that basis, the delegate considered there was nothing in the evidence to suggest the Malaysian government would fail to provide the applicant with the same degree of protection as that accorded to any of its other nationals if required.
As to the “Allah” issue, the delegate noted DFAT assesses that Malaysian Christians are generally able to practise their religion without interference. The information also did not suggest the applicant would be prosecuted or charged by the Malaysian government due to his beliefs and this issue as claimed. The delegate found the applicant was not a person of interest to the Malaysian authorities on account of his political opinion and for any reasons, and in turn found he did not have a well-founded fear of being persecuted in Malaysia on account of his political opinion, ethnicity or religious beliefs.
The delegate found the applicant was not a refugee as defined by subsection 5H(1) of the Act. Consequently, the delegate found he was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act. The delegate found for the same reasons that the applicant did not satisfy the complementary protection criterion pursuant to s 36(2)(aa) of the Act.
Review application
On the face of the applicant’s review application, he made it on his own behalf and requested that correspondence be sent to him personally. He provided street and email address details for that purpose.
On 10 August 2017, the Tribunal wrote to the applicant advising it had considered the information before it and was unable to make a favourable decision on that information alone. He was invited to appear before the Tribunal to give evidence and present arguments relating to the issues in his case on 6 September 2017.
The applicant attended the hearing in person. The hearing record indicates that additional documents were received during the course of the hearing. It is also apparent the applicant forwarded further information to the Tribunal by email on 5 September 2017. Those documents are discussed further below. The hearing commenced at 2:34pm and concluded at 4:00pm.
On 28 May 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant's visa. The applicant was notified of the decision by email on the same day.
THE TRIBUNAL’S DECISION
The Tribunal’s decision record first set out the relevant criteria for a protection visa at [3]-[7]. The Tribunal at [8] noted it had regard to departmental policy guidelines to the extent they were relevant as was required by Ministerial Direction No. 56 (MD 56), ‘PAM3 Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3 Refugee and humanitarian - Refugee Law Guidelines’, and relevant country information assessments prepared by DFAT.
The Tribunal at [9] identified that the issue in the review was whether the applicant had a well-founded fear of being persecuted in Malaysia for one or more of the five reasons set out in s 5J of the Act and, if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a real risk that he would suffer significant harm. The Tribunal outlined the applicant’s claims for protection as set out in his second visa application at [12], and identified the documents he submitted at the hearing at [14].
The Tribunal then observed that findings of fact which are required to be made when determining whether an applicant is entitled to protection in Australia may involve assessments of credibility. It set out general principles concerning credibility assessments, including that a decision maker is not required to make the applicant’s case for them, nor is it required to uncritically accept any and all allegations made by them. The Tribunal at [16]-[18] noted it was aware of the need for and importance of being sensitive to the difficulties asylum seekers often face, and that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all of their claims.
The Tribunal observed that “the applicant’s claims suffer from several difficulties” which led it to doubt his overall credibility. It also noted at [19]-[20] that the applicant stated he was assisted by his wife in the preparation of his written claims, but confirmed that as far as he knew, those claims were correct and there were no mistakes he wished to correct at the outset.
The first difficulty it identified concerned the applicant’s “deed poll” claim. The applicant gave evidence regarding this claim as follows:
21. The applicant claimed at hearing that the main issue that led him to fear returning was because of the work he had done assisting his wife to prepare and witness deed polls when someone wanted to revert back to the Hindu or Christian faith from Islam. He said that this was very sensitive and had led to him being assaulted, and to fear that he would be harmed because of this.
22. In support of this claim he provided a number of documents titled 'change of name and religion by deed poll' for various people, in which they stated that they were changing their name and religion, with the applicant's wife's witnessing as an advocate and solicitor. He also provided statutory declarations made by the applicant's wife that she was present when the above various people changed their name and that their signature appears on these documents along with hers. These documents date from 2002 and 2008.
23. At hearing he said that his wife was a lawyer and they used to do deed polls when someone wanted to re-convert back to Hindu or Christian, the person would do a deed poll affirmed by a lawyer and then you would have to go to an agent and the religious office and the officer would have to endorse it. He explained that what usually happened was that a Hindu or Christian young man would be seen out with a young Muslim woman and be pressured to convert to Islam by the police, and then after a few months or years they want to return to their original religion. He said that after a few of these cases he and his wife were called up to the office and they said it is illegal to do deed polls, but they argued that according to the law it can be done. He said then in 2010 they made a law that deed polls are no longer valid. He said that by that time his name was a little bit known.
24. He said that around 29 August 2015 when he arrived back in Penang after a Bersih rally, he went to go and have tea in a stall, and he saw a group of Malays. One of them was someone who used to work in the religious office whom he knew. He asked the applicant whether he was still doing the deed polls with his wife. The applicant explained that the law had been changed in 2010 so they were not doing them anymore. Then some other Malay guys with him started arguing with the applicant saying how could he convert Muslims to non-Muslims. The discussion got very heated so the applicant excused himself and left. He went to church for evening mass and when he got out of his car two motorbikes came up and the people on them started hitting him with helmets. The applicant shouted for help and the church members came out. The applicant was so shaken he could not attend the service, he just sat there. The next day he went to a Doctor but because this was a religious case and Malaysia is very sensitive on religious issues, he did not go to the police.
25. He said that later he went to his neighbours and whilst he was there 30 people ambushed his house, if he had been at his house that day he doesn't know what would have happened. He said then he went to Thailand and then he left to come to Australia. He said he chose to come to Australia as he wanted to go to a Christian country.
26. I noted to the applicant that he did not seem to have mentioned his 'deed poll' claim in his written application to the Department…
…
30. I further noted with the applicant that I had concerns with the medical report he had obtained, because it was dated a year after the claimed treatment, and because of this and my other concerns I may place no weight on this document as supporting his claims to have been assaulted. The applicant responded that he called the doctor and asked him to provide it, he had only visited him once, he did not go back, the doctor has asked the applicant what was the reason but the applicant could not tell him it was a religious issue, so he just told him some other reason.
The Tribunal noted to the applicant that these claims had not been included in his written claims. The Tribunal records the following explanation and exchange:
26. …The applicant responded that he had not been sure whether the immigration officer was a Muslim, and so he was afraid of putting this down, because for a Muslim it would be a very sensitive matter. I explained to him that I might consider this an unlikely explanation for why he had not included it - especially as he had mentioned in his written claims that he had been vocal on the 'Allah' issue, which might also be considered a problem for Muslims, yet he had not mentioned the deed poll issues. He said that the Allah issue was not so sensitive, but converting a Muslim is a very sensitive issue. I noted to him that he had claimed he-was harmed in Malaysia but had written that he was harassed by a group of Malay men accusing him of being anti-government and telling him to leave the country because Malaysia belongs to Malays and Indians are cheap labour from India, and had not mentioned the claimed incident outside the church, nor the claimed ambush of his house. He said maybe he had not mentioned because there was not space there. He said that he might have overlooked mentioning this. I noted that I may come to the view that these things had ·not happened. He said when he came here he was not in a good frame of mind as he was missing the children.
27. He said that the group of guys that came to his house looking for him have told his uncle that they will get the applicant. He said that his son had told him that they had stopped his car twice and asked after the applicant, they knew he was in Melbourne.
28. I asked why these people would be upset about the deed polls if he and his wife had stopped doing them in 2010. He said that in Malaysia it became very sensitive for a very long time. He said these people didn't know what was happening and this has just triggered them and they believed all the people who did this were murtad, they should be killed. I asked if this was the case, why these people had not created problems for him and his wife earlier than 2015, by which time they had not been doing deed polls for at least 5 years. He said it was because this person met him at the tea house, if he had never seen him he would not have instigated that.
29. I also raised with the applicant my concerns that he was not mentioned at all in the documents he had supplied - these mentioned his wife as the person witnessing the 'deed poll' and then as the author of the statutory declarations, but his name did not seem to me to appear anywhere. He said he was not mentioned in the papers but in action he was involved, he took them to the commissioner of oaths.
The Tribunal also referred to a medical report provided by the applicant. It is dated 3 September 2016 and is from a surgery in Penag. It records the applicant presented on 31 August 2015 alleging being assaulted on 30 August 2015 with pain on the face and left hand. The report noted the applicant’s left hand and left side of his face was swollen and tender. The Tribunal recorded at [30] it noted with the applicant its concerns with the report because it was dated a year after the claimed treatment, and warned it may place no weight on it to support his claims to have been assaulted. The Tribunal records the applicant responded he called the doctor and asked him to provide the report, he had only visited him once, and that the doctor had asked the reason for the assault but that he did could not tell him it was a religious issue, so just told him some other reason.
The Tribunal recorded at [31] that it carefully considered these claims, but did not accept them for the following reasons. First, the Tribunal found at [32] the applicant’s reasons for omitting the claim from his written claims unconvincing. Secondly, the Tribunal at [33] considered the applicant could not convincingly explain why the attacks happened 5 years after he and his wife had, on his own case, ceased undertaking deed polls. Lastly, the Tribunal at [34] doubted the applicant in fact had any role in preparing the documents. His evidence regarding having some other role was characterised as “not detailed”. The Tribunal at [35] also rejected his claim of contact with the religious office and his evidence of being involved in arguments and attacked on that account.
The Tribunal accepted at [35] that the applicant’s wife had been involved in preparing documents to assist people to revert to their former (non-Islam) religion, but did not accept that the applicant “played any role in the process whatsoever”. It then considered at [36] whether the applicant would face harm as the husband of someone who engaged in that activity and did not accept there was any chance of him being harmed for this reason. It first noted the applicant had been divorced from his wife since 2010, and did not accept the applicant’s claim at the hearing they had since reconciled. Secondly, the Tribunal noted the very considerable number of years that had elapsed since the applicant’s wife had been engaged in that work. Consequently, the Tribunal considered there was only a remote or far-fetched chance of the applicant being harmed on the basis of his past marriage. The Tribunal at [37] ultimately concluded this claim had been manufactured, which led it to find he was not credible or a witness of the truth .
The Tribunal then considered the applicant’s Bersih claims at [38]-[42], and noted these formed part of the applicant’s written claims. The Tribunal at [39] recorded the applicant had little to say about this claim at the hearing. The Tribunal recorded the applicant stated he had never had problems because of his attendance at the Bersih rally. It was pointed out to him that this was not what he said in his written claims. The applicant is recorded at [40] as responding that people were harassed at the rally. The applicant also provided little information at the hearing that was directed at his written claims of being harassed and jailed under the SOSMA laws. The Tribunal recorded at [42] that the applicant later gave evidence of being afraid the authorities would relate the ‘deed poll’ matter to his Bersih attendance and would ask him to come to the police station which are all Muslim. The applicant told the Tribunal he would not be harmed but the authorities might harass him because of the deed poll thing and the other things: [42].
The Tribunal found at [43] there were “significant, unexplained, differences between the applicant’s claims in his written statement and what he said at hearing, where he explained that he had never had any problems because of his attendance at the Bersih rally”. He was described as attempting “to re-direct his evidence to reconcile his statements at hearing with his written claims”. The Tribunal did not accept the applicant’s explanations for the disparity which caused it to be unable to accept his claims. Consequently, the Tribunal did not accept the applicant attended the Bersih protests, that he joined Bersih, that he had expressed his political opinion in Malaysia in any way in the past, or that he has any particularly strong political opinion.
The Tribunal accepted at [44] the applicant is a practising Roman Catholic. It then considered his claims in respect of his religion. The applicant referred to the prohibition on using the word “Allah” in churches and the articles he provided to the Tribunal referring to this. He described Christians had been deprived of using the Malay word for God. He said he might be found in contempt of court by the Shariah Court. When asked by the Tribunal how he had personally been affected by the ban on using the word “Allah” the applicant is recorded as saying some bombs were thrown and a cross had to be brought down and that they were just asking for justice. The Tribunal at [45]-[46] recorded discussing country information with the applicant including recent reports of Christian pastors being abducted. It noted at [46] that information suggests that although Christians may face a low level of official discrimination, they are generally able to practise their religion without interference, and do not face official or societal discrimination or violence on a day-to-day basis.
The Tribunal ultimately reached the following conclusion at [47]:
47. I have thought carefully about the claims of the applicant in relation to his religion. I accept that, as a practicing Catholic, he was and is engaged in the 'Allah' issue, and is concerned about the 2014 death of a nun and the abductions of several pastors. I accept that he would be concerned about these things. I have had regard to and accept the news reports he has provided, which accord with the country information summarised above. However, I do not accept that his evidence, or the articles he has provided indicate that the situation for Christian worshippers is such that they face a real chance or a real risk of harm for worshipping or otherwise practicing their faith. He has not claimed, and I do not accept, that he has suffered harm for reasons of his religion in the past. In concert with my findings above about the deed poll claims, I have not accepted that the applicant is engaged in or was associated with or would be imputed with having proselytised or having converted Muslims to Christianity. I find he would return to Malaysia as a Catholic worshipper but without any further profile.
The Tribunal also considered at [48]-[49] whether the applicant had a well-founded fear of persecution for reasons of race, although this was not directly raised by the applicant. The Tribunal, however, noted the applicant claimed in his written claims to have been racially abused by a group of Malays. The Tribunal did not accept this incident happened but was prepared to accept the applicant, as an Indian Malay, may have suffered some discrimination in the past. Noting the DFAT country information and the applicant’s circumstances, the Tribunal ultimately concluded the applicant had not suffered serious or significant harm in the past for reasons of his ethnicity or race.
Against this background and having noted that it accepted little of the specific claims put forward by the applicant, the Tribunal concluded at [61]-[62] that there is not a real risk he will suffer significant harm if he returned to Malaysia now or in the reasonably foreseeable future from anyone for reasons of his race/ethnicity, religion or political opinion or on any other basis. The Tribunal concluded the applicant was not a refugee and was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
For similar reasons, the Tribunal did not accept there was a real risk the applicant will suffer significant harm from any person for any of the claimed reasons or any other reason as a necessary and foreseeable consequence of being removed from Australia to Malaysia. The Tribunal was, therefore, not satisfied the applicant was person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
APPLICATION FOR JUDICIAL REVIEW
The application sets out the following grounds of review:
Ground 1 : Error of law
1. The Second Respondent erred in law, whether or not the error appears on the record of the decision. The Tribunal's decision involved an error of law material to the decision thereby contributing to the unsatisfactory decision. But for the error, the decision would have been, or might have been different.
Ground 2 : Misapplication of law or failure to ask the correct question
2. The Second Respondent erred in law in failing to apply the proper standard of proof on me and instead placed onerous burden on me to proof my claim causing serious miscarriage of justice. The Second Respondent has misdirected itself on law and facts and failed to exercise its discretion judiciously.
3. The Second Respondent rejected in toto the new crucial grounds raised by me during the hearing solely because it was not mentioned in my earlier statement of claim. The Second Respondent placed too much importance on this omission and failed to consider or consider adequately my valid explanation. The Second Respondent misdirected itself in deciding that I was not involved in the conversion cases because my name was not in the conversion documents. The Second Respondent clearly drew wrong inference on the given facts and failed to consider that I was the one who brought those people who wanted to renounce the religion of Islam to the Commissioner for Oaths to affirm their Deed Polls. I had been to the Religious Department pertaining to this conversions. The Tribunal never gave me the benefit of doubt at all.
Ground 3 : Evidence wrongly rejected
4. The Second Respondent wrongly rejected the documentary evidence I produced which is crucial in determining my claim. The Second Respondent seriously erred when it doubted the medical report as it was dated one year later. The Second Respondent failed to consider that I only requested for the report from the doctor after I left Malaysia and when I was informed that I needed to prove that I was assaulted during the incident. The Second Respondent again placed too much emphasis that I did not mention about being hurt during the attack in my statement of claim. At the time I filed my application I was in unstable frame of mind and filed my application in haphazard manner. The Second Respondent further questioned how could the doctor remember me and my injuries. The incident happened on eve of Independence Day in 2016 and the doctor opened a case note for me and when I requested he merely prepared a report based on his case notes. This is an acceptable and admissible evidence but the Tribunal rejected it thus causing grave injustice to me.
Ground 4 : The Failure to Take into Account Relevant Considerations
5. The Second Respondent failed to take into account relevant consideration in the exercise of power. The Tribunal failed to take into account my explanation on the omission to state my participation in the conversion of Muslims and the injury I sustained during the assault in my statement of claim. The Second Respondent made its decision based on pure conjecture that I have manufactured the whole story and incidents that took place. The Second Respondent also made a finding on my credibility which is unsubstantiated and based on flawed reasoning and prejudices.
The Tribunal at paragraph 37 states that " Having considered this claim, I have come to the conclusion that the applicant manufactured this claim, starting with the established basis that his ex-wife assisted people to re-convert, inserting himself as a party who had then suffered harm for this reason. I find the applicant has deliberately manufactured his part in this claim and this leads me to find he is not credible or a witness of truth." The Tribunal did not give any solid reasons for not believing me and reached its conclusion perversely.
Ground 5 : The taking into account of irrelevant considerations
6. The Second Respondent took into account irrelevant consideration in the exercise of power. The Tribunal states that it does not accept that I would face harm in Malaysia as the husband to someone who prepared the Deed Poll for conversion out of Islam. This line of thinking is erroneous as I have been harmed because of my active participation in Bersih generally and in particular fighting for my religion and the right of those who want to convert from Islam. Although the last conversion was done in 2008 yet the real risk surfaced at the time of Bersih movement. I had fear even back then because people who were believed to be converting Muslims were gunned down like Dr. Joe Fernandez. Most of the persons who converted are my acquaintances and I am the one who took them to my wife's office to prepare the Deed Poll. The Second Respondent was totally wrong in dismissing the role I played in those conversions.
7. The Tribunal states that my name is not found on the Deed Poll documents and decided to reject my claim based on it alone. The Tribunal does not have knowledge or information as to how a conversion by way of Deed Poll is made in Malaysia as it is not merely execution of Deed Poll but getting the Identity Card changed by the National Registration Department which is an uphill task. It also involves interviews by the State Religious Department as they regard it as apostasy. One good example would be the Lina Joy case where her lawyer was arrested pertaining to her conversion. Fortunately my wife was spared because I was the one who helped those persons to get the Deed Poll done. This is not a dubious claim, people whom I helped can vouch for it.
Ground 6 : Without regard to the merits
8. The Second Respondent exercised a discretionary power without due regard to the merits of my case. The Tribunal failed to place enough consideration on the real risk and harm that I have encountered and wrongly labelled it as a manufactured story.
Ground 7 : Unreasonableness
9. The Second Respondent had exercised its power in a manner that is so unreasonable and lopsided thus depriving me a fair hearing and just decision.
Ground 8 : Uncertainty
10. The Second Respondent did not substantiate its findings with valid grounds but merely choosing to reject my claims as being manufactured without caring for its truth. It is uncertain if what I have claimed is true, would the Tribunal reach a different conclusion.
The applicant also filed an affidavit in support of his application on 29 June 2018. That affidavit sets out some background to the application and evidence relevant to his claims for protection and personal circumstances.
On 16 October 2019, procedural orders were made by a registrar to ready the matter for a final hearing. Those orders included that the applicant file and serve 28 days before the hearing date any amended application with proper particulars of the grounds of the application, any affidavits, written submissions and a supplementary court book. No further materials have been filed by the applicant in accordance with those orders.
On 9 October 2024, the Minister filed an outline of submissions.
HEARING OF APPLICATION
The hearing of the application took place on 28 October 2024. The applicant appeared unrepresented and without the assistance of an interpreter. I spent some time explaining the hearing process to the applicant, identifying the documents before me and the issues considered by the Tribunal. I also explained the role of the Court was limited to identifying whether the Tribunal made any serious legal errors when conducting its review of the delegate’s decision. Examples of such errors were identified, including whether the Tribunal misapplied the law, failed to follow appropriate procedures, failed to take into account relevant information or took into account irrelevant information. I explained the Court was not able to look at the evidence again, make a different decision and give the applicant a visa. I explained the remedy available if his application succeeded was to send the matter back to the Tribunal to decide again.
Upon application made by the Minister at the outset of the hearing, I ordered that the “Immigration Assessment Authority” be substituted for the “Administrative Review Tribunal” as the second respondent in these proceedings pursuant to r 11.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), in circumstances where the decision under review was made by the Tribunal. I also made an order amending the name of the first respondent in order that it conform with the relevant Minister’s current title.
The applicant was then taken to the materials before the Court, namely the application, the affidavit filed by the applicant in support (received into evidence and marked A1), the court book filed by the Minister on 24 October 2018 (received into evidence and marked R1) and the Minister’s submissions. The applicant agreed that he had received a copy of the court book by email on 1 November 2023.
CONSIDERATION
Judicial review
The Court’s task in this matter is to review the lawfulness or legality of the Tribunal’s decision. The Court does not consider the merits of the decision and it is not able to remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17]. The merits of the applicant’s claims are for the repository of the relevant power alone (in this case the delegate and the Tribunal): Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259; [1996] HCA 6 at [31].
Relief can only be granted to the applicant if he establishes the Tribunal’s decision is affected by jurisdictional error. The High Court recently explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [2] as a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law… no decision at all’ and is in that sense ‘void’”. The High Court noted jurisdictional error can take many different forms and that the categories are not closed. Examples of breaches by a statutory decision-maker of a condition in making a decision were identified by the High Court at [3] as including:
(a)misunderstanding the applicable law;
(b)asking the wrong question;
(c)exceeding the bounds of reasonableness;
(d)identifying a wrong issue;
(e)ignoring relevant material;
(f)relying on irrelevant material;
(g)in some cases, making an erroneous finding or reaching a mistaken conclusion;
(h)failing to observe some applicable requirement of procedural fairness.
Applicant’s submissions
The applicant was asked to explain what he thought the Tribunal did wrong in reaching its decision. He explained that he raised many issues before the Tribunal that were not take into consideration, that “everything” was “just rejected”, including a medical report which he provided. He said that he was not afforded the benefit of doubt. I directed the applicant to the Tribunal’s decision record where it stated that it placed no weight on the medical report as it was dated a year after the claimed treatment had been administered. The applicant submitted that the dating of the report was not a good reason to reject it.
The applicant also submitted that the Tribunal failed to consider that the applicant’s wife “was protected by bar council” in finding that his wife was likely to need more protection. The applicant submitted the religious office understood that his wife had professional obligations to follow her client’s instructions. He told the Court most of the clients she had assisted were people he knew and had introduced to his wife. He said he was the one who took them to the registry office. He described a lot of friction occurring, that the place where he used to live was attacked but he was not at home at the time. He stated that none of his story was accepted.
The applicant further submitted that there was no freedom of religion in Malaysia, but that there should be. He said that he told the Tribunal he “was beaten in the church compound” on 30 August 2015. The applicant provided the medical report as evidence of this incident.
When asked what the Tribunal did wrong in concluding that the applicant did not have a real chance or risk of harm by reason of his Christian faith, he explained that if he returns to Malaysia that “there are some chances of them hurting me”. He could not say with complete certainty that he would be harmed as he has now been away from Malaysia for ten years, but that there were some chances. He also explained that his children, who currently reside within the Malay community in Malaysia, are being called “Kafir”, which is an Arabic term for non-believers of Islam.
The applicant was directed to the grounds set out in his application. He again repeated that the Tribunal did not give him the benefit of the doubt. He submitted the decision was not based on the merits but on some other basis. He explained he had flown to Australia because the ticket was cheaper and he just wanted to leave Malaysia. He again repeated he did not explain to the doctor why he had been assaulted because he was a Muslim doctor.
The Minister’s submissions
The Minister submitted the bare assertion in ground one that the Tribunal’s decision involved an error of law was meaningless without particulars.
As to ground two, insofar as it suggests the Tribunal needed to disprove the applicant’s claims or produce rebutting evidence, the Minister submits it was under no such obligation: Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; and see SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225; Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14. As to the allegation the Tribunal failed to apply the proper standard of proof and required the applicant to prove his claim, the Minister submitted the Tribunal clearly outlined it did not apply an onus of proof and that it was for the applicant to advance any evidence or argument he wished at [16] of its decision: Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26]. As the Tribunal did not consider the applicant to be generally credible, it was not required to give him the benefit of the doubt. In relation to the complaint the Tribunal placed too much importance on the omission of the deed poll claims from his written application, the Minister argues the Tribunal is entitled to identify the information it finds relevant to its reasoning and give it the appropriate weight: Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]–[7]; see also ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46].
To the extent ground two invited the Court to undertake a review of the merits of the Tribunal’s decision and the assessment of applicant’s credibility, the Minister points out this is not permissible in the context of judicial review: Liang at 272. The applicant’s assertion the Tribunal was wrong to find he was not involved in the deed poll conversions is nothing higher than such a request.
In respect of ground three, the Minister argues the applicant’s assertion that his medical report was wrongly rejected also impermissibly seeks merits review. The Minister submits the Tribunal’s findings were clearly open on the evidence before it and for the reasons it gave.
As to ground four, the Minister submitted the Tribunal’s decision record evidences it squarely considered the applicant’s explanation for omitting his ‘deed poll’ claims in his written application and rejected it. The Tribunal likewise considered and rejected the applicant’s account of the assault resulting from those claims. It otherwise considered the applicant’s other claims in their entirety.
In respect of the ground five, the Minister notes no irrelevant considerations are particularised in the grounds. The matters set out by the Tribunal were all matters that the decision maker was permitted to take into account. To the extent the second paragraph of the ground asserts the Tribunal did not have the requisite knowledge of how a conversion by deed poll works, the Minister argues the Tribunal made its findings in light of the scant evidence before it, the applicant’s unclear oral evidence and its overall concerns about the applicant’s credibility and did not rely on any question of the deed poll process itself.
The Minister argues ground six merely invites the Court to conduct impermissible merits review.
As to the applicant’s complaint at ground seven that the Tribunal’s decision was unreasonable and “lopsided”, the Minister submits that to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated and “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175; [2018] FCAFC 2, [30(5)]. The Minister submits the Tribunal was not obliged to accept the applicant’s claims uncritically, and that its findings regarding the applicant’s claims with respect to the deed poll issue were based on rational grounds and arrived at upon consideration of matters that were logically probative to it: specifically, the applicant’s evidence was vague and inconsistent; far-fetched and implausible; and deliberately manufactured starting with an established basis that his ex-wife assisted people to reconvert and inserting himself as a party who had suffered harm for that reason: Cf CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [59]; DAO16 at [30]. It could not be said no reasonable decision maker could arrive at the same conclusions.
To the extent ground eight alleges the Tribunal did not properly substantiate its findings, the Minister submits its findings were open to it on the evidence before it. The Tribunal clearly set out its reasons for its conclusions.
More broadly, the Minister submits the Tribunal otherwise complied with its procedural fairness obligations under Div 4 of Pt 7 of the Act. It invited the applicant to the hearing in accordance with ss 425 and 425A of the Act. The applicant attended. The Minister argues the applicant was on notice from the delegate’s decision and questioning at the hearing that the credibility of his claims would be a determinative issue on review. Accordingly, the Minister submits the Tribunal did not breach s 425 of the Act. The Tribunal’s decision was based on country information, the applicant’s written material before the Department and the Tribunal, his oral evidence at the hearing and the Tribunal’s subjective appraisals of the applicant’s evidence. Those matters either fall within the exceptions to s 424A at ss 424A(3)(a), (b), (ba) and (c) or, in the case of the Tribunal’s subjective appraisals, do not constitute “information” for the purposes of s 424A(1): SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18].
Discussion
Ground one – errors of law
The applicant’s allegation the Tribunal erred in law was not supported by particulars. In addition, the applicant did not explain the ground further during the hearing. I have treated the ground as one characterising the other alleged errors as “errors of law” rather than a standalone ground.
Ground two – did the Tribunal adopt an incorrect standard and onus of proof?
The applicant’s allegation the Tribunal failed to apply the proper standard of proof and placed an onerous burden on him to prove his claim is without merit. The Tribunal set out in its reasons at [16]-[18] a number of unexceptional propositions relating to the assessment of protection claims. At [16], it included a statement that the concept of the onus of proof is not appropriate to administrative inquiries and decision making. That statement on a fair reading of the decision should be sufficient to conclude this was the approach the Tribunal took unless it emerges clearly from the statement of reasons that it did not do so: see Liang at 271-272; AWJ15 v Minister for Immigration and Border Protection [2016] FCA 197 at [46], per Barker J.
The Tribunal also set out the following propositions at [16]-[18]:
(a)the relevant facts have to be supplied by the applicant in as much detail as necessary to enable the examiner to establish the relevant fact;
(b)the decision maker is not required to make the applicant’s case for him;
(c)the Tribunal is not required to accept uncritically any and all allegations made by an applicant;
(d)the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate their claims;
(e)the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established;
(f)the Tribunal is not obliged to accept claims that are inconsistent with independent evidence regarding the situation in the applicant’s country of nationality.
These propositions are uncontroversial and emerge from a number of cases. In Abebe v The Commonwealth (1999) 197 CLR 510, Gleeson CJ and McHugh J observed an applicant for a protection visa carries no onus of proof. Their Honours further observed a failure to make out an affirmative case in respect of all aspects of a case does not necessarily mean a claim for protection must fail. The Tribunal in such cases is entitled to assess the degree of probability of the occurrence of the relevant facts: at 544-545. It is not, however, bound to accept an applicant’s account of alleged incidents giving rise to a claim for protection: Abebe at 545. As Gummow and Hayne JJ observed in Abebe at 576:
The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.
Similarly, s 5AAA(2) of the Act provides that it is the responsibility of a person who claims to be a person in respect of whom Australia has protection obligations to specify all particulars of their claim and to provide sufficient evidence to establish it. Section 5AAA(4) of the Act further makes clear that the Minister (or the Tribunal exercising the powers and discretions of the Minister pursuant to s 415(1)) does not have any responsibility or obligation to specify, or assist in specifying, any particulars of a protection claim, or establish, or assist in establishing, the claim.
The decision discloses the Tribunal approached its task to find the relevant facts in a manner consistent with those propositions. The Tribunal accepted the applicant’s wife was involved in the preparation of documents to assist people to convert from Islam to their former religion, that the applicant was a practising Roman Catholic, was engaged in the “Allah” issue, was concerned about the death of a nun and abduction of several pastors and would have, as an Indian Malay, suffered some discrimination. It did not accept the applicant’s evidence concerning suffering harm in the past or that which formed the basis of his claims that he would be at risk if he returned to Malaysia at some time in the future. The Tribunal carefully explained its reasons for rejecting that evidence. It referred to inconsistencies between the applicant’s written claims and his oral evidence which, for example, raised for the first time the deed poll issue. It noted the vague and unsatisfactory evidence the applicant gave in respect of his alleged involvement with Bersih. These examples illustrate the point that none of that analysis suggested the applicant bore some onus beyond being required to advance the evidence or arguments he sought to rely upon to advance his claims. It was then entirely a matter for the Tribunal to decide what evidence it accepted or rejected and to determine whether the claim for protection was made out.
The merits of the applicant’s application for the visa were for the delegate and the Tribunal: see Liang at 272. Making findings on credibility is the function of the primary decision maker or the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000)168 ALR 407; [2000] HCA 1 at [67], per McHugh J. While it has been recognised that adverse credibility findings can involve jurisdictional error, “[t]he flaw in the fact-finding or treatment of the evidence must be sufficiently seriously illogical, irrational or groundless as to compromise the decision, in that the credit finding can be seen as compromised”: SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589 at [40], per Allsop CJ.
The Tribunal’s conclusions as to the applicant’s credibility do not suffer from the vices referred to in SZHYH. They are conclusions that were open to the Tribunal. They are not illogical or groundless. So much is evident from the careful way in which the Tribunal referred to the basis upon which it reached its various conclusions.
This ground is not made out.
Ground three – did the Tribunal wrongly reject the applicant’s medical report?
The Tribunal stated that it did not accept the applicant attended a doctor for treatment for injuries from the assault he claimed he was subjected to and placed no weight on the medical report given the “reasons set out above”. This passage immediately follows the Tribunal’s finding that it did not accept the applicant’s claim that he was attacked in the church grounds by two men on motorcycles for any reasons connected to an argument concerning preparing deed polls or for any reasons connected to his claims. Whether the Tribunal’s decision not to place weight on the medical report flowed from its finding the applicant had not been attacked, or was based on the matters it raised earlier in the decision which are set out at [22] above, is not clear. Ultimately, it does not matter.
It is a matter for the Tribunal to evaluate the evidence before it. It is a matter for the Tribunal to determine what weight to afford the evidence and the representations made in a support of a claim: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24]. Both of the possible reasons exposed by a fair reading of the Tribunal’s decision were open. It may be harsh to conclude the medical report deserved no weight as it was dated a year after the claimed treatment, but it is not a conclusion that is illogical, irrational or groundless. In any event, the Tribunal’s decision at [30] explained the Tribunal’s concerns about the report were not solely based on the date of the report, but also on “other concerns”. In my view, the Tribunal’s decision to place no weight on the medical report was one it was entitled to make in the context of its role in determining the merits of the applicant’s claim.
This ground is not made out.
Ground four – did the Tribunal fail to take into account a relevant consideration when assessing the credibility of the applicant’s claims?
The applicant claims the Tribunal failed to take into account his explanation for omitting to refer to the deed poll issue and the injuries he says he sustained during the assault in his written claims for protection. This ground fails at a factual level. The Tribunal clearly referred to the applicant’s explanations for those omissions. The Tribunal rejected those explanations. It explained why at [32] of its reasons. Those reasons expose no illogicality or irrationality. It was open to the Tribunal to find those explanations unconvincing for the reasons it gave.
The Tribunal then concluded the deed poll claims were manufactured. This was a conclusion that was also open to the Tribunal in light of its earlier findings.
This ground is not made out.
Ground five – did the Tribunal err in rejecting the applicant’s claims he would face harm if returned to Malaysia?
This ground complains that the Tribunal was “totally wrong in dismissing the role [the applicant] played” in the religious conversions. It claims the Tribunal rejected his deed poll claims based on his name not being found on the documents he submitted alone. This is clearly not the case. The Tribunal referred to a number of factors when rejecting this claim, including the failure to raise the issue in his written claims.
The ground otherwise seeks to argue the merits of the claim. As already explained, it is not the function of this Court to engage with the merits of the applicant’s protection claim.
This ground is not made out.
Ground six – did the Tribunal decide the matter otherwise than in accordance with the merits?
In my view, the Tribunal’s decision demonstrates it engaged with all of the applicant’s claims, including the claim of racial abuse and discrimination which was not directly raised but emerged from the applicant’s written claim. It considered the relevant evidence, made relevant findings and reached its conclusions (adversely to the applicant) by reference to the statutory criteria for the visa. Consequently, the Tribunal properly undertook the review it was required to undertake pursuant to s 414 of the Act.
The applicant in this ground repeats his complaint the Tribunal did not place enough consideration on his risk of harm and wrongly concluded he had manufactured his story. These criticisms are dealt with above and are without merit.
This ground is not made out.
Ground seven – did the Tribunal exercise its powers in a manner that deprived the applicant of a fair hearing and just outcome?
This ground is not further particularised. In my view, the Tribunal’s decision demonstrates it undertook the review in a manner that was fair and consistent with the statutory scheme set out in Div 4 of Pt 7 of the Act. The applicant was invited to a hearing. The statement of reasons sets out the applicant was given a meaningful opportunity to present his evidence and arguments. The applicant was clearly put on notice that the Tribunal was concerned with the credibility of his claims. The issues appear to have been thoroughly explored with the applicant. The Tribunal in that way sought information from the applicant which it actively considered: see ss 425(1) and (2) of the Act.
As I have already explained, it was the Tribunal’s function to make findings on the way to concluding whether the applicant met the statutory criteria for the visa. There is no discernible error in its approach to its task, also for the reasons set out above.
This ground is not made out.
Ground eight – were the Tribunal’s findings based on valid grounds?
This ground, in my view, repeats the complaints made in earlier grounds although it is articulated in a different way. Accordingly, for the reasons set out above, it is not made out.
Other matters
I am mindful the applicant is not represented in these proceedings. Consequently, I have given careful consideration to the Tribunal’s decision with a view to identifying whether the Tribunal fell into jurisdictional error. I can detect no error based on the material before me. I accept the Minister’s submissions as to the Tribunal’s compliance with its statutory obligations referred to above. Finally, I have also considered the oral submissions made by the applicant during the hearing. They largely consist of arguments concerning the merits of his claim and do not raise allegations of jurisdictional error.
CONCLUSION
For the above reasons, I dismiss the application.
In the event the application was dismissed, the Minister sought costs in the fixed sum of $5,000.00 which is below the scale amount prescribed in Sch 2, Part 2 of the Rules. The applicant submitted that this amount was “high”, citing other commitments including his house, and his three children. I explained to the applicant at the hearing that means to pay is not generally a relevant factor.
In the circumstances, I am satisfied that the costs of the proceedings should follow the event in this matter. I am also satisfied the amount sought by the Minister is reasonable, representing a significant discount on the scale of costs for migration proceedings concluded at final hearing. Accordingly, I order the applicant pay the Minister’s costs of and incidental to the proceedings in the fixed sum of $5,000.00.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 4 December 2024
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