DNV16 v Minister for Immigration

[2018] FCCA 1199

FEDERAL CIRCUIT COURT OF AUSTRALIA

DNV16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1199

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s claims and circumstances – whether the Tribunal erred in its application of s.424A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.424A

Applicant: DNV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3262 of 2016

Judgment of: Judge Smith

Hearing date: 11 April 2018

Date of Last Submission: 11 April 2018

Delivered at: Sydney

Delivered on: 11 April 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms M Perotti, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3262 of 2016

DNV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a citizen of Malaysia who arrived in Australia on 20 June 2012.  At the time she held a visitor’s visa that expired later in that year.  On 7 August 2015, having been unlawful in the country for some time, the applicant applied for a protection visa.  The claims she set out in support of her protection visa application were that she feared harm from or being killed by her ex-boyfriend. 

2. The applicant said that she had become the girlfriend to this man in 2005 but later discovered that he had other girlfriends, and that when she wanted to separate from him, he threatened to kill her and her family.  The applicant said that he treated her badly and tortured her.  The applicant said that in May 2010, he locked her in his house for 10 days, and although he was arrested when she reported it to the police, he was released after one day, when his wealthy father bribed the police.  Upon release, the ex-boyfriend continued to torture the applicant, and so she moved to a different part of Malaysia. 

3. Since the applicant has been in Australia, the applicant claimed that the ex-boyfriend had gone to her family home and told her parents that he would kill her if he found her.  The applicant said that she could not get protection from the police and would be unable to relocate anywhere in Malaysia because the ex-boyfriend would find her.

4. On 24 September 2015, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa.  The applicant applied to the Administrative Appeals Tribunal for review of that decision.  On 17 November 2016, the applicant attended a hearing conducted by the Tribunal and made a number of further claims.  The applicant said that when she had commenced a relationship with her ex-boyfriend in 2010, he wanted her to carry drugs for him and to provide sexual services to people. 

5. The applicant said that he threatened that if she did not provide those services, he would torture her and lock her up.  The applicant claimed that she hid in friends’ houses in Kuala Lumpur and Malacca but that he found her because her friends told him where she was and that he had probably offered them money to do so.  The applicant said that she had gone to Singapore to hide from him but that he had found her there. 

6. On 17 November 2016, the same day as the hearing, the Tribunal made a decision to affirm the decision of the delegate.  The Tribunal’s reasons for decision are accurately summarised in the respondent’s submissions at [6] to [9], which I adopt for the purpose of these reasons and set out below: 

   6The Tribunal found that the applicant was not a witness of truth and had fabricated or exaggerated her claims for the purpose of obtaining a permanent visa (CB 155, [39]). The Tribunal found the applicant to be evasive in response to even simple questions, for example she was unable to recall whether she had been in a relationship with her ex-boyfriend for seven or two years prior to her departure from Malaysia, or explain other inconsistencies in her evidence (CB 155, [39]).

   7The Tribunal placed significant weight on the length of time between when the applicant’s tourist visa ceased in 2012 and when she lodged her protection visa application in 2015 (CB 155, [40]). It considered that if the applicant had a genuine fear of returning to Malaysia, she would have sought protection or explored her options in Australia sooner. It did not accept the applicant’s claim that no one advised her that she could apply for protection, and considered that this reflected poorly on the credibility of her claims to fear harm (CB 155-156, [40]). The Tribunal found that when considered cumulatively, the inconsistencies undermined the applicant’s character and credibility (CB 156, [41]).

   8Nevertheless, the Tribunal accepted that the applicant was assaulted by her ex-boyfriend in 2010, given the consistency in that aspect of her evidence, and accepted that it was possible that he was released by the police as claimed (CB 156-157, [42]-[48]). However, due to the applicant’s evasive, vague, and inconsistent evidence, the Tribunal did not accept that for the following two years, the applicant hid from her ex-boyfriend or that he always found her, including in Malacca and Singapore (CB 157, [49]-[51]). The Tribunal also rejected the applicant’s claim that her ex-boyfriend frequently called at her parents’ house or sent other people to monitor their home over the four and a half years since her departure from Malaysia (CB 157, [52]).

   9The Tribunal was therefore not satisfied that there was a real chance or real risk that the applicant would face serious or significant harm if returned to Malaysia (CB 157, [53]-[54]). Accordingly, the Tribunal was not satisfied that the applicant met the criteria in s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958 (Cth) (Act), and affirmed the decision under review (CB 157, [55]-[58]).

   (Emphasis in original)

7. The applicant now seeks judicial review of the Tribunal’s decision.  In order to succeed, the applicant must establish that the Tribunal’s decision is affected by jurisdictional error.  Although it is not easy to describe with any accuracy what such an error is, it is best understood as an error that has led the Tribunal somehow to fail to fulfil its duty and function of reviewing the decision of the delegate. 

8. In her application, the applicant has three grounds of review.  The applicant was ordered to provide written submissions to support those grounds but failed to do so.  At the hearing, she was invited to make oral submissions in support of her application, but declined that opportunity.  The Court is left therefore with the grounds as they are stated in the application. 

9. The first ground is:

   The Tribunal failed to consider the applicant’s claims that her ex-boyfriend may offered money to her friends to find out where she was. That is consistent to the applicant’s claims that her ex-boyfriend’s family is wealthy. 

   (Without alteration)

10. The Tribunal specifically referred to that claim in the last sentence of [20] of its reasons.  It did not make an express finding concerning that claim because at [49] to [51] of the Tribunal’s reasons, the Tribunal rejected the higher claim, namely that the applicant was being pursued by the ex-boyfriend.  In light of those findings, and the Tribunal’s express reference to the claim at [20], I am not satisfied that the Tribunal failed to consider the claim, and the first ground is rejected.

11. The second ground is:

    The Tribunal failed to disclose the country information or supporting evidence that it would be unlikely her ex-boyfriend to “know that she had even returned to the country” by relocating herself to another city in “a population of over 30 million people and a number of large cities”. … the Tribunal failed to consider the wealthy family of the applicant’s ex-boyfriend who can easily locate the applicant by paying money to the government officials.

    (Without alteration)

12. Contrary to the assertion in the first part of the ground, the Tribunal’s reasons show, at [27], that it did put information to the applicant concerning the effect of the population of Malaysia being over 30 million people and that it included a number of large cities.  That effect, in the Tribunal’s words, was that it would be reasonable for the applicant to return to Malaysia and to relocate to another city.

13. In any event, even if that information had not been put to the applicant, there would have been no error.  That information concerning Malaysia was not specifically about the applicant, and for that reason, it fell within sub-s.424A(3)(a) of the Migration Act 1958 (Cth), which means that no obligation arose under s.424A(1) of the Act to give particulars of that information.

14. In any event, as I have observed, the critical reasoning in the Tribunal’s decision was that the applicant was no longer being pursued by her ex-boyfriend.  Given that finding, it was unnecessary, ultimately, for the Tribunal to come to any conclusion about the reasonableness of the ability of the applicant to relocate within Malaysia in order to avoid the harm that might come to the applicant from her ex-boyfriend.  That fact deals also with the second aspect of this ground, namely the alleged failure to consider the applicant’s ex-boyfriend’s wealthy family.  Once the Tribunal found that the applicant was no longer of any interest to the ex-boyfriend, it was not necessary for it to consider the means by which he might locate her upon her return to Malaysia. 

15. The third ground is that the Tribunal failed to consider that the applicant’s fear of being assaulted and held captive was foreseeable as long as the applicant and her ex-boyfriend were in Malaysia, because the authorities would not provide protection to the applicant and because the applicant’s ex-boyfriend’s family had the “ability to get the police help to take no action against him”. 

16. This ground faces a similar difficulty as the previous grounds, namely that the Tribunal simply did not accept that the applicant was of any ongoing interest to the ex-boyfriend.  In light of that, the consequences of any possible interest did not have any further application to the issues to be determined by the Tribunal, and it was unnecessary for the Tribunal to determine the issues raised in this ground. 

17. For those reasons, each of the grounds in the application is rejected.  The applicant has not established that the Tribunal’s decision is affected by jurisdictional error.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     15 May 2018