DPY17 v Minister for Immigration
[2019] FCCA 2552
•17 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DPY17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2552 |
| Catchwords: MIGRATION – PRACTICE AND PROCEDURE – Application at final hearing for leave to file an amended application – whether any of the grounds contained in the proposed amended application are reasonably arguable – grounds not reasonably arguable – application for leave to file amended application dismissed – grounds contained in current application disclose no arguable case of jurisdictional error – application is dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2B)(a), 424A, 424AA |
| Cases cited: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 |
| Applicant: | DPY17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2543 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 30 August 2018 |
| Date of Last Submission: | 30 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 17 September 2019 |
REPRESENTATION
| Counsel for the Applicant | Mr J Williams |
| Solicitors for the Applicant | Attia Lawyers and Consultants |
| Solicitors for the First Respondent: | Mr A Keevers of Sparke Helmore Lawyers |
ORDERS
The applicant have leave to apply to file an amended application in the form of the draft amended application annexed to the affidavit of Muhammad Elias Attia sworn on 16 July 2018.
The application for leave to file an amended application is dismissed.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2543 of 2017
| DPY17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a national of Malaysia, applies for judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
Background
In his application for protection, the applicant claimed the following:[1]
a)The applicant has his “own business that dealing food stuff in local area” which he ran for three years.
b)There were other stores in “our market”, one of which sold tobacco stuff in the local area. The owner of that tobacco store sold drugs in the market and “people used to come to that store to buy drugs”.
c)This affected the applicant’s business so he decided to report the “store owner” to the police. The police came and raided the store and arrested the “store people”.
d)The drug dealers know the applicant and they are “very strong people”. The police cannot provide the applicant with any protection against these drug dealers.
e)The drug dealers have a “huge connection” and they “were extremely dangerous and treat of violence”.
f)The applicant does not know “how big this drug dealer is” and so moving to another part of Malaysia may “still put me into dangerous situation”.
g)Despite the “present regulatory approaches taken by Malaysia authority” the drug dealers are still “rampant” and, if the applicant were to return to Malaysia he will be harmed or mistreated.
h)The Malaysian authorities will not be able to guarantee the applicant’s safety. There have been “many cases” where “drug dealer become heavy handed towards people that made a report about them”.
[1] CB30-35
Before the Tribunal
Before the Tribunal the applicant further claimed that:
a)he was unsure if anyone else had reported the drug dealers to the police, other than his younger brother who accompanied him to the police station;[2]
b)in August 2016 his younger brother was asked to sell drugs for the drug dealer who sold drugs from the tobacco shop in the market place;[3] and
c)the drug dealer found out that it was the applicant and his brother who had reported him to the police, the applicant was threatened on the telephone, and the applicant’s friends told him the drug dealer knew it was the applicant who had informed the police.[4]
[2] CB121, [15]
[3] CB121, [15]
[4] CB121, [17]
When the Tribunal asked the applicant if he had suffered any harm the applicant said the drug dealer asked to see the applicant and possibly his brother at a named location. When he arrived there the drug dealer’s associates hit the applicant with a piece of wood. The applicant managed to flee and subsequently sought medical assistance and reported the incident to the police.[5] At the hearing before the Tribunal the applicant read out the material parts of a police report. [6] After the hearing the applicant “lodged an electronic version of a police report” which the Tribunal said it understood related to the incident in which the applicant was hit with a piece of wood. The Tribunal noted the document recorded in English the date of 14 September 2016 but that the body of the document was in Malay.[7]
[5] CB121, [18]
[6] CB121, [18]
[7] CB121, [19]
Tribunal’s reasons
The Tribunal did not accept the applicant informed on a drug dealer, or that the applicant was blamed by a drug dealer for any subsequent raid on a tobacco store.[8] Although the Tribunal accepted the applicant was involved in some type of incident in which he was attacked, as indicated in a police report the applicant read out to the Tribunal, it did not accept the applicant was attacked by the persons he claimed, or for the reasons the applicant claimed.[9] The Tribunal relied on two matters.
a)The applicant made claims during the hearing which he did not make in his written application for a Protection visa.[10] These included the claim that the applicant’s young brother had been asked to sell drugs for the drug dealer who sold drugs from the tobacco store in the market place,[11] the claim that the applicant was hit with a piece of wood,[12] and the evidence which he changed that he had been hiding for three or four weeks before he departed Malaysia. The Tribunal did not accept the applicant’s explanations for not including these claims in his Protection visa application.[13]
b)At the hearing before the Tribunal the applicant eventually said he continued to reside at his parents’ home, being his usual home, until the end of October, and the applicant continued to work at his usual work up to the end of October 2016.[14]
[8] CB124, [31]
[9] CB124, [31]
[10] CB121-124, [15], [21], [31]
[11] CB121, [15]
[12] CB122, [21]
[13] CB121, [16]
[14] CB124, [32]
The Tribunal found it was not satisfied the applicant had a subjective fear of harm in Malaysia for any reason he claimed, or for any reason that would require protection by Australia. The Tribunal relied on the applicant’s having continued to reside at his usual home for between six to eight weeks after being attacked, and his continuing to work in his usual employment for between six to eight weeks after the attack.[15]
[15] CB124, [33]
The Tribunal considered country information relevant to whether the police in Malaysia had the capacity to deal with gangs. It concluded it was not satisfied that police in Malaysia are powerless against “the gang menace, as was claimed by the applicant”.[16]
[16] CB124, [29]
The Tribunal also considered whether the applicant could safely relocate within Malaysia, assuming the Tribunal accepted the applicant had a real chance of suffering serious harm in his home region in Malaysia. The Tribunal considered this question, even though it found it to be redundant, because relocation was discussed at the hearing. The applicant there claimed that the drug dealers in Malaysia have a huge network; that “Malaysia country is not that big to hide from the drug dealer where the applicant is not aware of how huge their networking area” is; and relocating within Malaysia is “still unfavourable decision agree by his family members”.[17]
[17] CB125, [35]
The Tribunal found there not to be any ongoing adverse interest in the applicant of the sort he claimed. The Tribunal relied on the applicant’s having resided in Malaysia without harm for some 6 to 8 weeks after the attack on him in mid-September 2016.[18] The Tribunal, therefore, was not satisfied there is a real chance that any attempt would be made to trace the applicant should he relocate within Malaysia.[19] After considering country information, the Tribunal was not satisfied there is a real chance the applicant would be found after relocating in Malaysia even if there were an interest in locating the applicant, and it was not satisfied there is any other reason the applicant would have a real chance of suffering serious harm, should he relocate within Malaysia.[20]
[18] CB125, [36]
[19] CB125-126, [36]
[20] CB126, [37]
The Tribunal also considered whether the applicant would be harmed if returned to Malaysia as a failed asylum seeker.[21]After considering country information, and given its material findings about the applicant, the Tribunal did not accept the applicant has a real chance of suffering harm for any reason on return.[22]
[21] CB126, [39]-[41]
[22] CB126, [40]-[41]
The Tribunal then considered whether the applicant satisfied the complementary protection criteria provided for s.36(2)(aa) of the Migration Act 1958 (Cth) (Act). The Tribunal particularly considered whether s.36(2B)(a) of the Act applied; that is, whether it would be reasonable for the applicant to relocate to an area in Malaysia where there would not be a real risk that an applicant will suffer significant harm in their receiving country, if the decision maker is satisfied “it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm”.[23] The Tribunal concluded that, for the same reasons it was not satisfied the applicant has a real chance of suffering persecution “for reason of any claim”, should he relocate in Malaysia, the Tribunal was not satisfied the applicant has a real risk of suffering significant harm “for reason of any claim” should he relocate in Malaysia.[24] The Tribunal also concluded it was satisfied the applicant could safely and reasonably relocate within Malaysia.[25]
[23] CB127, [46]
[24] CB127, [47]
[25] CB128, [53]
Finally, the Tribunal concluded that, after considering the applicant’s claims that it accepted cumulatively, it remained satisfied that the applicant does not have a real risk of suffering significant harm in all of Malaysia. The Tribunal was also satisfied there was no issue, “squarely raised by the evidence though not articulated”, that has satisfied the Tribunal the applicant has a real risk of significant harm for any other reason in all of Malaysia.[26]
[26] CB129, [55]
Course of judicial review hearing
The matter was first set down for hearing before me on 14 June 2018. At the hearing the applicant, who was by then legally represented, applied for an adjournment. The applicant sought the adjournment to give his solicitor an opportunity to obtain counsel’s advice. The applicant gave evidence, and he was cross-examined. As the application proceeded it became apparent that even the application for an adjournment would not be concluded in the time that had been allocated for the hearing. I suggested to the parties the following course: I would hear the application on the grounds stated in the application as originally filed; reserve judgment to be delivered at 9.30 am on 20 July 2018; and permit the applicant, if so advised, to file and serve by 13 July 2018 an application in a case for an order seeking leave to file an amended application that would be made returnable at 9.30 am on 20 July 2018. The intention of this proposal was that if the applicant were not to file an application in a case by 13 July 2018, I would give judgment on 20 July 2018. If, on the other hand, the applicant were to file an application in a case, the matter would instead be listed at 9.30 am on 20 July 2018 for directions.
Neither party opposed my proposal. I then heard the matter. The applicant made no submissions in relation to the grounds stated in the application; and the Minister made no oral submissions, but relied on the written submissions that had been filed on his behalf. I then reserved judgment, listed the matter for judgment at 9.30 am on 20 July 2018, and made orders permitting the applicant, if so advised, by 13 July 2018 to file and serve an application in a case for an order that the application be amended, such application in a case to be accompanied by a draft amended application.
The applicant did not file an application in a case by 13 July 2018. Instead, on 17 July 2018, the solicitor for the applicant attempted to file an application in a case and an affidavit made by his solicitor. Given the orders I made on 14 June 2018 the Registry did not accept for filing the application in the case. The applicant’s attempt to file the application in a case and affidavit was brought to my attention on 20 July 2018. On that day I made the following orders in chambers:
1. The matter be set down for hearing at 10.15 am on 30 August 2018 of the following questions:
a. whether the Court should entertain the application in a case lodged for filing (which has now been accepted for filing) by the applicant on 16 July 2018 given that under the orders made by the Court on 14 June 2018 such application in a case should have been filed on 13 July 2018;
b. assuming the Court decides it is appropriate to entertain the application in a case referred to in (a):
i. whether leave should be granted to the applicant to file an amended application in the form of the draft amended application annexed to the affidavit of Muhamma Elias Attia sworn 16 July 2018; and
ii. assuming leave is granted to file an amended application in the form of the draft amended application referred to in (i), whether the substantive application
2. By 27 July 2018 the applicant file and serve any affidavits on which he intends to rely.
3. By 9 August 2018 the first respondent file and serve any affidavits on which he relies.
4. By 16 August 2018 the applicant file and serve written submissions.
5. By 23 August 2018 the first respondent file and serve written submissions.
6. The parties have liberty to apply on such notice as the circumstances warrant.
At the hearing on 30 August 2018 counsel for the applicant handed up an application in a case seeking an order that leave be granted to file an amended application; a draft amended application; an affidavit made by the applicant’s solicitor on 7 June 2018; an affidavit made by the applicant’s solicitor on 16 July 2018 annexing a draft amended application; and an affidavit by the applicant’s solicitor made on 30 July 2018.[27] One of the affidavits made by the applicant’s solicitor sought to explain why the applicant delayed obtaining legal representation and why the applicant failed to file an application in a case by 13 July 2018. I then heard submissions on the merits of the grounds stated in the proposed amended application with a view to determining whether leave should be granted to the applicant to file the amended application and, if so, whether those grounds are made out.
[27] I have marked in chambers as “MFI1” the draft amended application counsel for the applicant handed up in Court. It is the same as the draft annexed to the draft affidavit of Mr M E Attia made on 17 July 2018. The draft amended application contains a numbered paragraph 5, suggesting it contains five grounds. That is a typographical error. Numbered paragraph 5 is intended to be paragraph (b) of ground 4.
Should the applicant be permitted to apply for leave to amend?
The material on which the applicant relies shows that the applicant was unable to raise the necessary funds to engage lawyers before 14 June 2018; and the applicant’s lawyer did not file the application in a case on 13 July 2018 because, although by that day counsel had drafted the proposed amended application, the applicant’s solicitor arrived at the registry after it had closed. These are not satisfactory explanations for the applicant’s not having been ready to proceed on 14 June 2018, or for the applicant’s lawyers not having filed an application in a case by 13 July 2018. I do not, however, consider their inadequacy to be of sufficient weight to lead me not to permit the applicant to apply for leave to file the amended application. I propose to order that the applicant have leave to apply to file an amended application.
Amended application
Whether I should permit the applicant to file an amended application in the form he seeks depends on whether any one or more of the grounds contained in it are reasonably arguable. That requires me to consider each ground.
Proposed ground 1
Ground 1 of the proposed amended of claim is as follows:
The decision by the Tribunal was affected by jurisdictional error as the Tribunal either misapplied the relevant law, failed to give genuine, proper or realistic consideration to the claims of the applicants [sic] or there was insufficient logical or evidentiary basis for the Tribunal to find at [16] that the applicant was not generally [a] credible witness and to reject his claims at [31] and at [33] for the refugee criterion and at [35] and [47] for the complementary criterion.
This ground is supported by substantial text that appears under the heading “Particulars”. That text may be summarised as follows:
a)Under the heading “The Protection claims” the particulars simply state the applicant is a citizen of Malaysia and that he is seeking protection.
b)Under the heading “Adverse credibility finding” the particulars refer to the Tribunal in its reasons for decision recording the applicant’s having stated in his form of application that he did not receive any assistance in preparing his form of application for a Protection visa, that the applicant claimed he was able to read, write and speak English, and that at the hearing the applicant said that a named person completed the form.[28]. The particulars then assert there was an “an insufficient logical or evidentiary basis for the Tribunal to find at [16] that the applicant was not generally credible and to reject his claims on this basis”. The particulars quote paragraph 16 of the Tribunal’s reasons where the Tribunal records its findings that it was not satisfied the applicant’s younger brother was asked to sell drugs, and that it was not so satisfied because it was not satisfied that such an important claim would have been left out of the applicant’s application for a Protection visa, and the Tribunal did not accept that the applicant’s explanations for not having made the claim earlier were reasonable.
c)Under the heading “The assault” the particulars set out paragraph 18 of the Tribunal’s reasons which records the Tribunal’s accepting that the applicant had been assaulted, but that that matter had been resolved.
d)Under the heading “Jurisdictional error”, the particulars assert there was “therefore an insufficient logical or evidentiary basis for [t]he Tribunal to find at [31] that the applicant did not inform on the drug dealer or that the applicant was blamed for the raid on the drug dealer’s tobacco store”. The particulars quote paragraph 31 of the Tribunal’s reasons where the Tribunal records its finding that it did not accept the applicant was a generally credible witness and rejects a number of the applicant’s claims based on that finding.
e)Under the heading “Relocation”, the particulars assert that the Tribunal’s findings in paragraph 31 of its reasons was “logically and evidentiary [sic] incompatible with the findings” it records in paragraph 35 of the Tribunal’s reasons. That paragraph records the Tribunal’s findings about relocation.
f)Under the heading “The refugee criterion” the particulars assert the Tribunal “erred by finding at [33] the applicant did not have a subjective fear of harm in Malaysia, for any reason he claimed (or for any reason that would require protection in Australia)”. The particulars then reproduce paragraph 33 of the Tribunal’s reasons which records the Tribunal’s findings.
g)Finally, there is the material under the heading “The complementary criterion”. There the particulars claim the Tribunal “erred by simply applying the findings under the refugee criterion to the complementary criterion at [35]” which records the Tribunal’s findings about relocation in the context of its assessment of the applicant’s claims based on the complementary protection criterion.
[28] CB121, [15]
In his written submissions, counsel for the applicant refers to a number of authorities, and he repeats the text that appears in the amended application under the heading “Particulars”. In his oral address counsel for the applicant repeated the substance of assertions made in the amended application. Counsel, however, made additional submissions. He submitted the adverse credibility findings the Tribunal made were not reasonably open to it. Counsel accepted that this was the essence of the complaint made in ground 1. Counsel also described as a “pivotal finding” the Tribunal’s relying on what it found were inconsistent statements the applicant made about the preparation of his form of application for a Protection visa. In his form of application the applicant said he did not receive any assistance in preparing the form but at the hearing the applicant said another person had completed the form. Counsel referred to passages from the judgment of the Full Federal Court in MZZJO v Minister for Immigration and Border Protection.[29] Counsel submitted that the “caution” with which the Full Court said fact finders should approach the omission by applicants of matters at an entry interview should have been applied by the Tribunal in the case before me in relation to the circumstances in which the applicant prepared his application for a Protection visa. Counsel further submitted that it was not reasonably open to the Tribunal to rely on the inconsistent statements the applicant made as a basis for finding the applicant was not credible.
[29] [2014] FCAFC 80
I do not accept any of the assertions contained in the particulars, or any of the submissions counsel for the applicant made at the hearing before me, are reasonably arguable:
a)It is beyond argument that the applicant’s not having included in his form of application a claim that he later made before the Tribunal, namely, that the applicant’s younger brother was asked to sell drugs, was a matter on which it was reasonably open to the Tribunal to rely as undermining the applicant’s credibility. It is beyond argument that it was reasonably open to the Tribunal to consider that the claim was sufficiently substantial such that the applicant would have included it in his form of application, if the claim were true; and it was reasonably open to the Tribunal not to accept the applicant’s explanation for not having included that claim in his form of application. The observations of the Full Federal Court in MZZJO about exercising caution in attaching significance to omissions of matters during an early entry interview are not reasonably capable of applying to the circumstances of the applicant’s case because the omission on which the Tribunal relied was one that was made in the form of application, not in any entry interview.
b)It is beyond argument that it was reasonably open to the Tribunal to find that the incident recorded in a document the Tribunal accepted was a police report did not relate to the applicant’s claims, and that the matter had been resolved. The Tribunal relied on the applicant’s having continued to reside at his usual home, and he continued to work at his usual place of employment after the date of the incident.[30]
c)It is beyond argument that it was reasonably open to the Tribunal to find for the reasons it gave that the applicant was not a generally credible witness. The reasons the Tribunal gave were that the applicant raised claims before the Tribunal he did not include in his form of application, and the applicant changed his evidence about where he resided when in Malaysia.[31]
d)It is beyond argument that it was reasonably open to the Tribunal to find for the reasons it gave it was not satisfied the applicant held a subjective fear of persecution or harm for any reason he claimed or for any other reason that would require protection from Australia. As I have already noted, the Tribunal relied on the applicant’s having continued to reside at his usual home for between six to eight weeks after he claimed to have been attacked, and his continuing to work in his usual employment for between six to eight weeks after the attack.[32]
e)It is beyond argument that there was no inconsistency in the Tribunal considering the question of relocation in circumstances where the Tribunal did not accept the applicant’s claims. The Tribunal made no jurisdictional error by considering the question of relocation on the assumption that the applicant would, contrary to the Tribunal’s actual findings, face a real risk of harm if he were to return to the place where the claimed events giving rise to the applicant’s claims for protection occurred.
[30] CB124, [32]
[31] CB124, [31]
[32] CB124, [33]
For these reasons, ground 1 of the proposed amended application is bound to fail if I were to grant the applicant leave to rely on it. I propose, therefore, not to grant the applicant leave to rely on ground 1 of the proposed amended application.
Proposed ground 2
Ground 2 of the proposed amended application is as follows:
The decision by the Tribunal was affected by jurisdictional error as the Tribunal failed to accord the applicant procedural fairness pursuant to section 424AA of the Migration Act 1958 (Cth) with regard to the request for the police report by the close of business on 12 July 2017 pursuant to section 424 of the Migration Act 1958 (Cth).
According to the particulars, this ground is directed to the request the Tribunal made as recorded in paragraph 19 of its reasons. That related to the Tribunal’s request that the applicant provide a copy of the police report, and the applicant’s providing to the Tribunal a scanned copy of a police report on the day following the hearing. The Tribunal noted in its reasons that although the date of the report the applicant provided was in English, the body of the police report was written in Malay. The particulars claim that, contrary to s.424AA(b)(ii) of the Act, the Tribunal “failed to orally invite the applicant to comment or respond to the observation by the Tribunal at [19] that “[t]hough the date was in English the body of the police report was written in the Malay language” and the implication by the Tribunal that the police report was fraudulent”.
In his written submissions counsel repeated the matters stated in the proposed amended application. In his oral submissions, counsel submitted that the implication the police report was fraudulent was a material finding and the Tribunal ought to have given the applicant notice of its intention to make such finding.
Two things may be said about ground 2 and counsel’s submissions. First, it is beyond argument that the Tribunal did not find, or proceeded on the assumption that the document the applicant provided after the hearing which purported to be a police report was fraudulent. The Tribunal accepted it was genuine, and accepted it recorded part of that which the applicant told the Tribunal it recorded, namely, that he had been attacked. What the Tribunal did not accept was that the applicant was attacked by drug dealers, as he claimed to the Tribunal. The Tribunal did not accept that, not because it considered the document was fraudulent, but because it did not accept the applicant’s evidence of what the document (in Malay) recorded.
The second matter to note is that, even if the Tribunal found or proceeded on the basis the document the applicant provided was fraudulent, it is not reasonably arguable that such finding or assumption was “information” to which s.424AA of the Act applies. “Information” as that word is used in s.424A and s.424AA of the Act “refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal . . . irrespective of whether it is reliable or has a sound factual basis”;[33] but it does “not encompass the tribunal’s subjective appraisals, thought processes or determinations”. Nor “does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps”.[34] The meaning of “information” is “related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.[35] A finding that a document is fraudulent is a determination and, for that reason, is not “information” to which s.424A or s.424AA can apply. Further, it has been held that for material to be “information” for the purposes of s.424A or s.424AA of the Act, it “should in its terms contain a “rejection, denial or undermining” of the review applicant’s claim to be a refugee”.[36] There is nothing in the letter that can reasonably be said to represent a rejection, denial, or undermining of the applicant’s claims.
[33] VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 (Finn and Stone JJ), at [24]
[34] VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 (Finn and Stone JJ), at [24] quoted with approval by the High Court in SZBYR v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at 616 ([18]).
[35] SZBYR v Minister for Immigration and Citizenship and Anor (2007) 235 ALR 609 at 616 ([18])
[36] Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at page 513 ([22])
In his oral submissions, counsel for the applicant submitted the Tribunal came under a duty to consider whether it should arrange for the document to be translated into English. A ground to that effect is not raised in the proposed amended application. In any event, the submission is not reasonably arguable. There is no evidence the applicant requested the Tribunal interpret the document; and it is not reasonably arguable that the Tribunal ought reasonably to have understood the applicant to have made any such request. Even if the applicant had made such a request, it is not reasonably arguable, at least in the circumstances of this case, that the Tribunal ought to have given such request any consideration. It “is for the applicant for a protection visa to establish the claims that are made”;[37] 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”, and that the “Tribunal must then decide whether that claim is made out”;[38] the “function of the Tribunal . . . is to respond to the case that the applicant advances”;[39] and the Tribunal “is required to deal with the case raised by the material or evidence before it”.[40]
[37] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40]
[38] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576 (Gummow and Hayne JJ)
[39] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [78] (Kirby J)
[40] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 at [58]; (Black CJ, French and Selway JJ)
For these reasons, ground 2 of the proposed amended application is bound to fail if I were to grant the applicant leave to rely on it. I propose, therefore, not to grant the applicant leave to rely on ground 2 of the proposed amended application.
Proposed ground 3
Ground 3 of the proposed amended application is as follows:
The decision by the Tribunal was affected by jurisdictional error as there was an insufficient logical connection or evidentiary basis for the Tribunal to find at [29] that [it is not satisfied that] the “police in Malaysia are (words to the effect) powerless against the gang menace” based on country information from [23]-[28] of the decision record.
In the particulars to this ground there is set out in some detail the country information the Tribunal referred to in its reasons for decision. The particulars then repeat the effect of the ground.
In his written submissions counsel for the applicant repeats the particulars; and, in his oral submissions, counsel simply submitted that, on the country information that was before it, it was not open to the Tribunal not to be satisfied that police in Malaysia are powerless against the gang menace.
Ground 3, and counsel’s submission in support of it, are not arguable. The country information to which the ground itself refers includes reports of police operations against gangs resulting in the arrest of 5,500 people under one operation, and the arrest of 1,444 under another operation; information about the number of police officers and police stations in Malaysia; and the implementation of reforms to deal with police corruption.
Ground 3 of the proposed amended application, therefore, is bound to fail if I were to grant the applicant leave to rely on it. I propose not to grant the applicant leave to rely on ground 3 of the proposed amended application.
Proposed ground 4
Ground 4 of the proposed amended application is as follows:
The decision by the Tribunal was affected by jurisdictional error as the Tribunal either misapplied the relevant law, failed to give genuine, proper or realistic consideration to the claims of the applicant or there was an insufficient logical or evidentiary basis for the Tribunal to find at [16] that the applicant was not a generally credible witness and to reject his claims at [31] yet accept at [35] that the applicant has a real chance of suffering serious harm in his home region in Malaysia but find that it was safe for the applicant to relocate within Malaysia at [37] under refugee criterion and at [47] under the complementary criterion.
This ground assumes that when the Tribunal considered the question of relocation it had accepted the applicant had a real chance of suffering serious harm in his home region in Malaysia. That assumption is incorrect. It is beyond argument that the Tribunal considered the question of relocation on the assumption that, contrary to what it had found, the applicant faced a real chance of suffering serious harm in his home region. That is apparent from the Tribunal’s use of the words “[f]or the purposes of this discussion”. There is no arguable case that the Tribunal’s deciding to consider the question of relocation on the basis of this assumption led it to make a jurisdictional error in not accepting the applicant’s claims that he had a real chance of suffering serious harm in his home region in Malaysia, or that it made any jurisdictional error in concluding, on the basis of that assumption, that it was satisfied the applicant could relocate within Malaysia.
Ground 4 of the proposed amended application, therefore, is bound to fail if I were to grant the applicant leave to rely on it. I propose not to grant the applicant leave to rely on ground 4 of the proposed amended application.
Conclusions and disposition
Given I have concluded that I propose not to grant the applicant leave to rely on any of the grounds stated in the proposed amended application, it follows that I also propose to order that the application for leave to file the amended application be dismissed.
Counsel for the applicant made no submissions in relation to the grounds contained in the application as currently filed. Those grounds are that the “decision is affected by error of law”, the “decision was made without solid proofs”, and it is requested that “my application back to Appeals tribunal for reconsideration”. These do not state any arguable case of jurisdictional error. I therefore also propose to order that the application be dismissed.
I will consider the question of costs when I pronounce my orders.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 17 September 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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