DJM17 v Minister for Immigration
[2018] FCCA 3897
•6 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DJM17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3897 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to consider sub-s.91R(2)(a) of the Migration Act 1958 (Cth) – whether the Tribunal erroneously and narrowly construed the existence of risk to life – whether the Tribunal erred in making a decision based on “reasonable satisfaction” that was not arrived at in accordance with the Act – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 91R, 414, pt.7 |
| Cases cited: ACB17 v Minister for Immigration & Border Protection [2017] FCCA 1880 BHL16 v Minister for Immigration & Border Protection [2017] FCCA 1958 DJK17 v Minister for Immigration & Border Protection [2018] FCCA 1713 Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 |
| 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.
| 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
(Delivered Extempore and Revised)
This is an application for judicial review of a 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 [5] of the Minister’s written submissions, which I adopt for the purpose of this judgment:
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(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.
(Identifiers removed)
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 decision are summarised in [6] and [8] of the Minister’s submissions and I adopt those for the purpose of the judgment:
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]).
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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]).
(Identifiers removed)
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 does 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 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 first ground in the application is that the “Tribunal failed to consider s.91R(2)(a) of the Migration Act, if she asked to relocate in Malaysia”. There are several difficulties with that ground. First, sub-s.91R(2)(a) had been repealed by the time the applicant had applied for her protection visa and, therefore, it was not applicable to the consideration of that application. 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 whole of the country, then relocation is possible and the applicant does not qualify for the grant of a protection visa. Similarly, in respect of 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.
The real difficulty with this ground is that the Tribunal simply rejected the factual basis for the applicant’s claims. 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 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 Migration Act 1958”. 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 & Border Protection [2018] FCCA 1713; ACB17 v Minister for Immigration & Border Protection [2017] FCCA 1880; BHL16 v Minister for Immigration & Border Protection [2017] FCCA 1958.
The reference to significant harm and risk to life in this ground refers to the complementary protection criteria in s.36(2)(aa) 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 that 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 Migration 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 [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 AA, 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.
(Identifiers removed, without alteration)
The difficulty with this argument is, firstly, that the applicant is seeking nothing more than a 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 [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 [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 [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 effort to do so. The applicant had requested that the Tribunal obtain those documents and that request was dealt with by the Tribunal at [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 [53] of its reasons to a comment by the High Court is a reference to the decision in Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123. What is said at [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 [52], that would warrant the conclusion that the Tribunal’s failure to exercise its power to obtain further information under pt.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.
Conclusion
For the reasons above, I can discern no jurisdictional error in the Tribunal’s decision and the application for judicial review must be dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 15 January 2019
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