DJM17 v Minister for Immigration
[2018] FCCA 3979
•6 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DJM17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3979 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 91R |
| Cases cited: ACB17 v Minister for Immigration & Anor [2017] FCCA 1880 |
| Applicant: | DJM17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2378 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 6 December 2018 |
| Date of Last Submission: | 6 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2018 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms J Strugnell Minter Ellison |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2378 of 2017
| DJM17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of the decision of the Administrative Appeals Tribunal made on 30 June 2017. The Tribunal affirmed a decision of a delegate of the Minister made on 24 November 2016 to refuse to grant the applicant a protection visa.
The applicant is a citizen of Malaysia who arrived in Australia on 5 April 2014 and lodged an application for a protection visa on 22 June 2016. The basis of that application is explained in paragraph 5 of the Minister’s written submissions, which I adopt for the purpose of this judgment.
On 24 November 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and she applied to the Tribunal for review of that decision. The applicant attended a hearing conducted by the Tribunal on 31 May 2017 and the Tribunal affirmed the delegate’s decision on 30 June 2017.
The reasons for the Tribunal’s decisions are summarised in paragraph 6 and 8 of the Minister’s submissions and I adopt those for the purpose of the judgment.
C APPLICANT'S CLAIMS
5. The applicant, a Hindu of Indian ethnicity, claimed to fear harm in Malaysia on account of her relationship with a Muslim man. She recounted the following factual events:
(a) she was in a relationship with a Muslim man, Mr A, for ten years;
(b) he persuaded her to marry him in the Hindu religion in February 2010, but she discovered he was married to a woman named N and had four children;
(c) N and her brother, an army general, threatened to kill the applicant and the brother also threatened to send gangsters to harm her;
(d) N and her brother wrote to the Malaysian Department of Education (the applicant was a teacher) to request her employment be terminated, and also contacted the Malaysian Religious Department who visited the applicant at home and tried to persuade her to convert to Islam;
(e) N issued many legal summonses and notices; and
(f) the applicant went to the police in 2012 but they accused her of trying to steal another woman's husband and would not help.
D TRIBUNAL DECISION
6. The Tribunal rejected the applicant's claims on the basis of adverse credibility findings. The Tribunal made the following key findings:
(a) it accepted the applicant had been in a relationship with a man whom she later discovered to be married and that this relationship was now over (CB 176: [45]);
(b) the content of the text messages from this man was not consistent with her claim that he continued to harass her in Australia (CB 177: [47]);
(c) the applicant did not provide copies of the many legal notices and summonses she claimed to have received from N (CB 177: [48]);
(d) the applicant's travel in and out of Malaysia on multiple occasions was not consistent with her claims to fear harm (CB 177: [49]); and
(e) it was not satisfied she was threatened by Mr A, his wife or her brother or any persons associated with them at any time after 2012, and therefore did not accept she would be harmed in the reasonably foreseeable future (CB 177: [50]); and
(f) it did not accept she would be pressured to convert to Islam by the Religious Department because she did not raise the claim in her protection visa application and because she was unable to provide any documentary evidence in support of this claim (CB 177: [51]).
7. The Tribunal considered the applicant's request that it make inquiries to obtain the relevant documents to support her claim that the Religious Department had pressured her to convert. However it declined to do so, noting that she had not provided the Tribunal with enough information to obtain the documents and it was not an obvious inquiry about a critical fact (CB 178: [52]–[53]).
8. For these reasons, the Tribunal rejected the applicant's claims and concluded she did not satisfy the refugee criterion (CB 178: [56]). For the same reasons, the Tribunal found that the applicant did not satisfy the complementary protection criterion (CB 178: [57]).
In her application for judicial review, the applicant has three grounds. When asked to explain those grounds at the hearing today, the applicant said that she is really in fear of relocation if she were returned to Malaysia. That contention may, as a matter of fact, be correct but as I explained to her today it is not a matter for the Court to determine that question of fact. The question for the Court is solely to determine whether the Tribunal fell into jurisdictional error. The truth or otherwise of the applicant’s claims in support of her protection visa application do not in any way go to whether or not the Tribunal properly fulfilled its function of reviewing the decision of the Tribunal under s 414 of the Migration Act 1958 (Cth) (“the Act”).
The grounds could be set aside on that basis, however I will deal with them individually, as well as a number of other matters that the applicant raised at the hearing today.
The grounds in the application are as follows:
1. The Tribunal failed to considers 91R(2)(a) of the Migration Act, if she asked to relocate in Malaysia.
2. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the
Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon her returns to Malaysia.
3. The Tribunal had no jurisdiction to make the said decision because its :reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act.
The first ground in the application is that the Tribunal failed to consider s 91R(2A) of the Act if she is asked to relocate to Malaysia. There are several difficulties with that ground. First, s 91R(2A) of the Act had been repealed from the Act by the time the applicant had applied for her protection visa and, therefore, it was not applicable to the consideration of that application. Secondly, it related to a serious harm for the purposes of determining whether the applicant satisfied the criteria for the grant of a protection visa. That issue is now dealt with in s 5J(5) of the Act. It does, to some extent, have relevance to relocation in the sense that a person will have a well-founded fear of harm in his or her country of origin, so long as there is a real chance of persecution relating to the entire country, meaning that if it does not relate to the entirety of the country then relocation is possible and the applicant does not qualify for the grant of a protection visa.
Similarly, with the complementary protection criterion the real risk of significant harm does not apply if it is reasonable for a person to relocate to an area of the country where there is no real risk of significant harm in that area. However, the real difficulty with this ground is that the Tribunal simply rejected the factual basis for the applicant’s claims and it was for that reason, rather than any analysis of the risk of harm, level of seriousness of harm, or questions of relocation, that the applicant failed in her application for review. For those reasons, ground 1 does not really relate to the facts of this case and it is rejected.
The second ground suffers from a similar difficulty. That ground is that the Tribunal misconstrued the risk and fear of significant harm, as set out in s 36(2A) of the Act. It is explained in the ground that the Tribunal construed erroneously and narrowly the existence of risk to life and fear of significant harm to the applicant on her return to Malaysia. That ground is a template form of ground that has appeared in quite a number of cases brought in this Court. See, for example, DJK17 v Minister for Immigration & Anor [2018] FCCA 1713 (“DJK17”), ACB17 v Minister for Immigration & Anor [2017] FCCA 1880 (“ACB17”), and BHL16 v Minister for Immigration & Anor [2017] FCCA 1958 (“BHL16”).
The reference to significant harm and risk to life in this ground refers to the complementary protection criteria in s 36(2AA) of the Act. Once again, however, the Tribunal’s analysis did not reach that level of inquiry because it simply rejected all of the applicant’s claims. It did so, as is apparent from the summary above, on the basis of its credibility findings based upon the material before it, including the applicant’s own evidence. For that reason, ground 2 is rejected.
The third ground is also a template ground and was also relied upon in cases such as BHL16 and ACB17. It is that the Tribunal had no jurisdiction to make the said decision, because its “reasonable satisfaction” was not arrived at in accordance with the provisions of the Act. The level of generality of that ground makes it almost meaningless and, at any level, it is difficult to understand. However, it can be understood simply as being that there was no rational basis for the Tribunal’s decision. That, however, is not correct. The rational basis for the decision was, firstly, that the Tribunal did not accept as credible what the applicant said and, secondly, that that conclusion about the credibility of the applicant’s claims was based upon an analysis by the Tribunal of the evidence before it, as summarised above. For those reasons, ground 3 must be rejected.
As I observed earlier, the applicant raised a number of additional matters at the hearing. Essentially, her submission was that the Tribunal should have accepted her claims and, in particular, it should have accepted that the messages on her phone were from her former husband in Malaysia, a person from whom she said she feared harm, amongst others. The Tribunal dealt with that issue at paragraphs 46 to 47 of its reasons, which are set out in full.
46. The Tribunal notes that the messages submitted to the Tribunal at hearing appear to come from a person called C, not A A, although the applicant has claimed that C is Mr A’s nickname. The applicant told the Tribunal that she had not had any contact with Mr A for three years prior to her departure from Malaysia. The applicant was unable to account for why, after more than three years of no contact, Mr A would suddenly begin making contact with her after she had arrived in Australia. Nor was the applicant able to provide a credible explanation for how he had obtained her Australian contact details.
47. The Tribunal also notes that the content of the messages appears to be inconsistent with the applicant's claims. Whilst the messages indicate that there has been a falling out or a dispute between the applicant and the author, they do not indicate to the Tribunal that the parties have the history claimed by the applicant or that there is a real chance of risk that the author would harm the applicant if she returned to Malaysia. For example, one of the early messages indicates that the author is making arrangements to sell the applicant's car and would send her the money from the sale. Another message says that the author does not want the applicant to be deported from Australia. The author expresses despondency and suicidal thoughts and hopes that the applicant finds happiness with another person. One message indicates that the author intends to pray to God for the applicant's happiness and thanks her for being with him and making him happy.
The difficulty with this argument then is, firstly, that the applicant is seeking nothing more really than merits review of the Tribunal’s decision. In effect, she is asserting that she really does fear harm from this person in Malaysia and that the Tribunal was wrong to find otherwise. As I have explained, that does not establish any jurisdictional error.
Secondly, and in any event, the reasons given by the Tribunal at paragraphs 46 and 47 take into account the applicant’s explanation as to the messages she said that she had received from this person in Malaysia, but did not accept that those explanations were credible. See the last sentence of paragraph 46. Further, the Tribunal noted that the messages, in any event, were inconsistent with the applicant’s claims and explained why that was the case in paragraph 47. Those reasons were cogent and formed a logical basis for the Tribunal’s rejection of that particular aspect of the applicant’s claims and, therefore, this argument must be rejected.
The second matter raised by the applicant today, albeit somewhat faintly, was that the applicant had submitted proof of her case to the Tribunal, but had tried to get further documents from the Minister of Education in Malaysia and was unable to do so. I infer from this argument that the applicant complains that the Tribunal should have itself obtained those documents, or at least made some efforts to do so. She had requested that the Tribunal obtain those documents, and that request was dealt with by the Tribunal at paragraph 52 and 53 of its reasons.
Of some importance in that consideration is the Tribunal’s statement about the lack of specificity given by the applicant concerning the documents in question and the failure by the applicant to explain why she thought the Tribunal would be in a better position to obtain any relevant evidence than she had been. The reference by the Tribunal at paragraph 53 of its reasons to a comment by the High Court is a reference to the decision in Minister for Immigration and Citizenship v SZIAI [2009] FCA 39. What is said at paragraph 53 of the Tribunal’s reasons is an accurate representation of the High Court’s decision in that case and I can see nothing in the circumstances, in particular, those described in paragraph 52, that would warrant the conclusion that the Tribunal’s failure to exercise its power to obtain further information under Part 7 of the Act was so connected to the ultimate decision as to suggest that there was jurisdictional error in that failure. In particular, I note, as the Tribunal did, that there was no obvious inquiry or information that could be readily ascertained by the Tribunal in connection with the documents said by the applicant to be in the possession of the Malaysian authorities. For those reasons, that submission is rejected.
Overall, the applicant’s arguments, in effect, amounted to an assertion that her claims in support of her protection visa application were correct. Once again, that may or may not be the case, but it is not for the Court to determine. That was for the Tribunal. I am satisfied that the Tribunal approached that question according to law, and having afforded procedural fairness in the form of a hearing conducted on 31 May 2017 and, for those reasons, can discern no jurisdictional error in the Tribunal’s decision and so the application for judicial review must be dismissed.
I certify that the preceding eighteen (18) paragraphs appear to be a true copy of the transcript of reasons for judgment of Judge Smith published orally on 6 December 2018
Associate of Judge Street:
Date: 27 February 2019
0
4
2