DQH16 v Minister for Immigration

[2018] FCCA 1266

FEDERAL CIRCUIT COURT OF AUSTRALIA

DQH16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1266

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal considered all claims made by the applicant – whether the Administrative Appeals Tribunal’s findings were open to it – whether the decision of the Administrative Appeals Tribunal was affected by bias or an apprehension of bias – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36, 474, 476

Cases cited:
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
NAFF v Ministerfor Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 50
Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263

Applicant: DQH16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3359 of 2016

Judgment of: Judge Emmett

Hearing date: 16 May 2018

Date of Last Submission: 16 May 2018

Delivered at: Sydney

Delivered on: 16 May 2018

REPRESENTATION

The Applicant appeared in person with the assistance of a Cantonese interpreter.

Solicitors for the Respondents: Bernadette Rayment
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3359 of 2016

DQH16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 7 November 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 1 April 2015,  refusing the applicant a Protection (Class XA) visa.

2. The applicant is a citizen of Malaysia and of Chinese ethnicity who fears harm from gangs in Malaysia.

Background

1. The applicant first arrived in Australia on 31 March 2005 having departed legally from Malaysia on a passport in his own name and an Electronic Travel Authority (Visitor) (UD-976) visa issued on 14 March 2005.

2. On 30 June 2005, the applicant’s Electronic Travel Authority (Visitor) (UD-976) visa expired and thereafter he became an unlawful non-citizen.

3. On 5 March 2008, the applicant was detained. The applicant requested voluntary removal to Malaysia.

4. On 14 March 2008, the applicant departed Australia.

5. On 30 August 2009, the applicant returned to Australia holding a second Electronic Travel Authority (Visitor) (UD-976) visa issued on 4 August 2009.

6. On 30 November 2009, the applicant’s Electronic Travel Authority (Visitor) (UD-976) visa expired and thereafter he became an unlawful non-citizen.

7. On 2 December 2014, the applicant lodged an application for a protection visa with the Department of Immigration and Border Protection (“the Department”).

8. On 4 December 2014, the applicant was granted a bridging visa associated with his protection visa application.

9. On 1 April 2015, the Delegate refused the applicant’s application for a protection visa.

10. On 11 May 2015, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

11. On 7 November 2016, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.

12. On 30 November 2016, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

The applicant’s application for a protection visa

1. The applicant’s claims in support of a protection visa application and the Tribunal’s key findings are accurately summarised in the submissions of the first respondent in paragraphs 4 to 8 as follows:

   “Applicant’s claims

   4 The applicant’s claims were set out in his protection visa application, the delegate’s interview, and Tribunal hearing (CB 19 – 22, 49, 90 – 93). In summary, the applicant claimed as follows:

   4.1 In early 2009, he engaged in a three-month intimate relationship with a woman called [O]. [O] was the wife of [H], the boss of [a] gang in Kuala Lumpur.

   4.2 [H] discovered the relationship. [H] and his gang assaulted the applicant and threatened to kill him the next time they saw him.

   4.3 The applicant complained to the Malaysian police, but they were unwilling to assist him because he was Malaysian Chinese.

   4.4 He fled Malaysia because [H] and his gang were seeking his whereabouts and [H] had issued a “pursuit and kill” order.

   Tribunal’s key findings

   5 The Tribunal was not satisfied that the applicant provided a truthful account of his experiences in Malaysia or his reasons for applying for a protection visa. The Tribunal found that the applicant’s evidence was lacking in contextual detail in relation to his relationship with [O], how it was conducted, how it was discovered, and the assault by [H] and his gang. It also found that the applicant’s delay of approximately five years in applying for a protection visa “casts serious doubt over his claim to have left Malaysia in fear of his safety” ([35]-[36]).

   6 The Tribunal was not satisfied that the applicant engaged in a sexual relationship with the wife of a gang leader in Malaysia, that he was bashed by members of the gang, or threatened that he would be beaten and/or killed. It did not accept that a “pursuit and kill” order had ever been issued in relation to the applicant. It also rejected the applicant’s claim that he complained to the police or that the police refused to assist him because of his Chinese ethnicity ([37]).

   7 The Tribunal noted that the applicant had not claimed that he would suffer persecution or significant harm for reasons of his ethnicity or financial position and that there was no information before the Tribunal that would support such a conclusion ([38]).

   8 As a result of these findings, the Tribunal was not satisfied that the applicant met s.36(2)(a) of the Migration Act 1958 (Cth) (Act). On the basis of the same findings of fact, it was also not satisfied that the applicant met the complementary protection criterion in s.36(2)(aa) of the Act. Accordingly, the Tribunal affirmed the decision under review.”

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Cantonese interpreter. 

2. The applicant confirmed that he attended a directions hearing before a registrar of this Court on 23 February 2017.  On that occasion, he was given leave to file and serve an amended application, any further evidence and submissions in support. The applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.

3. The applicant confirmed that he had no further documents to provide to the Court and that he continued to rely on the grounds identified in his initiating application filed on 30 November 2016.  The grounds of the applicant’s application are covered in an attachment to the application and are contained under two headings. The applicant’s grounds of complaint are encapsulated in the following paragraphs:

   “Orders sought by Applicant

   1. I don't think DIBP and AAT's decision are fair and reasonable as they failed to take a good consideration in my real situation in my home country and ignoring the real risk of my background

   2. AAT did not consider my statement and comments given to the questions asked in the hearing and judge my fears simply by the member's prejudice.

   3. AAT failed to prudently consider my risk, discrimination and hardship if I return to origin.

   The Grounds of the Application are:

   […]

   [4.] AAT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence.

   [5.] The tribunal's decision could give rise to an apprehension of bias in the mind of a reasonable observe”

   (Errors in original)

4. Each of the grounds was interpreted for the applicant and the applicant was invited to say whatever he wished in support of each of the grounds and in support of his application generally. 

5. At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and make different findings or reach conclusions.  I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law.  I explained to the applicant that the Court has no power to interfere with a decision of the Tribunal unless the Court is satisfied that the decision of the Tribunal is affected by mistake going to its jurisdiction.  I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake. 

6. I explained to the applicant that the issue in his case was whether or not the adverse credibility findings of the Tribunal and the rejection of the applicant’s claims were open to the Tribunal on the evidence and material before it and for the reasons it gave. 

7. I informed the applicant that the Tribunal had comprehensively rejected the applicant’s claims of past harm in Malaysia and that the Tribunal had noted that the applicant specifically told the Tribunal that he was not fearful for any reason other than his encounter with the gang in Malaysia.

8. I explained that, as a result of those findings, the Tribunal was not satisfied that there is a real chance that the applicant would suffer persecution or significant harm were he to return to Malaysia now or in the reasonably foreseeable future.

Ground 1

1. Ground 1 asserts that neither the Delegate’s decision nor the Tribunal’s decision were fair and reasonable because they failed to consider his situation in Malaysia and ignored the real risk because of his background. 

2. In relation to the reference in Ground 1 to the Delegate’s decision, I explained to the applicant that this Court does not have jurisdiction to consider the Delegate’s decision.

3. In relation to the Tribunal’s decision, I asked the applicant if there was anything he wished to say in support of Ground 1 and what it was that the Tribunal ignored in relation to his situation.  The applicant responded that it was the risk part.

4. The Tribunal noted that the applicant appeared before it on 28 October 2016 to give evidence and present arguments and that the Tribunal hearing was conducted with the assistance of an interpreter.  The Tribunal identified the various claims made by the applicant and the evidence that he provided in support.  The Tribunal noted that it had asked the applicant about the circumstances in which he first met the gangster’s wife and about the progress of that relationship.

5. The Tribunal explored with the applicant how and when the gangster husband found out about the relationship and the beating that the applicant said that he, the applicant, received as a result. 

6. The Tribunal explored the applicant’s claims and its concerns with the applicant and noted in detail the applicant’s responses.  The Tribunal noted that it put to the applicant that the applicant had provided a very brief account of how he met the wife and the nature of their relationship, and that the lack of detail about that relationship caused the Tribunal to question whether the relationship in fact existed.

7. The Tribunal also noted that the applicant’s delay of five years in applying for a protection visa caused the Tribunal to question the truthfulness of the applicant’s claims.  The Tribunal noted the applicant’s response.  The Tribunal put to the applicant that if it did not accept his claims, it would then have to consider whether there was now, or in the reasonably foreseeable future, a real chance that the applicant would suffer serious or significant harm in Malaysia. 

8. The Tribunal noted that seven years had elapsed since the claimed beating and that in that time no one had approached the applicant’s family farm again, nor did they know the applicant’s address. On this basis, the Tribunal found that it did not seem that there was a real chance of risk of harm to the applicant. The Tribunal noted that the applicant made no response to these matters being raised. 

9. The Tribunal noted that it put to the applicant that even if it accepted that there was a real chance of harm to the applicant in his own area, the Tribunal would still have to consider whether he could safely and reasonably reside in another part of Malaysia.  Again, the Tribunal noted the applicant’s response, which was that he felt regretful and had said everything he had to say. 

10. The Tribunal noted that it asked the applicant whether there was any other reason why he did not want to go back to Malaysia, and noted the applicant’s response that he was just fearful of the gang and confirmed that he was not fearful for any other reason. 

11. The Tribunal found that despite much prompting, the applicant’s evidence regarding his relationship with the wife was brief and lacking in any contextual detail.  The Tribunal found the applicant was unable to provide a clear or plausible account of how the relationship was conducted, or how it was discovered by the husband. The Tribunal found that the applicant’s account of the assault upon him by the husband was similarly unconvincing, owing to the lack of contextual detail. 

12. The Tribunal found the applicant’s delay of approximately five years in applying for a protection visa after his arrival in Australia also cast doubt over the applicant’s claim to fear harm in Malaysia.  The Tribunal did not accept as credible the applicant’s claim that he did not know about protection visas or how to apply for protection, given his prior immigration history.

13. Ultimately, the Tribunal rejected the applicant’s claims of any sexual encounter with the gangster’s wife, that the applicant was bashed by members of the gang, that the applicant was warned or threatened by the gang, or that a pursuit and kill order had been issued in relation to him.  The Tribunal did not accept that the applicant made any complaint about an assault to the police or that the police refused to assist him because of his Chinese ethnicity. 

14. The Tribunal noted the applicant’s general complaint that Chinese are second-class citizens in Malaysia. However, the Tribunal also noted that the applicant did not claim that he would suffer persecution or significant harm for reasons of his ethnicity or financial position.  In any event, there was no information before the Tribunal to support such a conclusion. 

15. Ultimately, the Tribunal found that the applicant did not satisfy the criterion in s.36(2)(a) or the alternative criterion in s.36(2)(aa) and accordingly affirmed the decision under review.

16. It is clear from the summary of the Tribunal’s reasons that the Tribunal did consider all the claims made by the applicant and the risk of harm to him on return to Malaysia. 

17. The Tribunal’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings.  Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative basis, or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

18. It is well-established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

19. Accordingly, Ground 1 is not made out. 

Grounds 2 and 5

1. Ground 2 asserts that the Tribunal did not consider the applicant’s statements and comments given in answer to questions asked at the hearing, and that the Tribunal Member judged his fears with prejudice. 

2. To the extent that Ground 2 asserts that the Tribunal did not consider his answers or his statement and comments given to questions asked at the hearing, a fair reading of the Tribunal’s decision record does not support such a contention.  As stated above, the Tribunal explored the applicant’s claims with him in some detail and noted with particularity the responses made by the applicant.  The Tribunal concluded it was not bound to accept those responses and ultimately concluded that the applicant’s evidence was not plausible and was lacking in contextual detail, despite much prompting.  As stated above, those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave. 

3. To the extent that Ground 2 asserts that the Tribunal judged the applicant’s fears with prejudice, a claim of bias is also made by the applicant in Ground 5.

4. Insofar as the Applicant asserts that he had not been fairly treated or that the Tribunal was prejudiced against him, such allegations are serious, to the extent that they suggest bias and require evidence. The Applicant was given an opportunity to file any further evidence in support of his application, including any transcript of the Tribunal hearing. As stated above, the applicant confirmed that he had not filed any more evidence or documents in this proceeding.

5. In the circumstances, the Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

6. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision.  This is certainly not such a case.  Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that a decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).

7. A fair reading of the Tribunal’s decision record does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127] per Gleeson CJ and Gummow J).

1. Moreover, the Tribunal’s decision record does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).

2. Accordingly, Grounds 2 and 5 are not made out.

Ground 3

1. Ground 3 asserts that the Tribunal failed to consider the applicant’s risk, discrimination and hardship.  I asked the applicant what he wished to say in support of Ground 3 and the applicant responded that if he goes back, these things are not finished and otherwise he had nothing to say. 

2. The Tribunal noted that the applicant had generally complained that Chinese Malaysians were second-class citizens in Malaysia, however, noted that the applicant did not claim that he would suffer harm for those reasons.  As stated above, the Tribunal further noted the applicant’s confirmation that he feared harm for no reason other than the gang.  As stated above, those findings and conclusions were open to the Tribunal for the reasons it gave.  In the circumstances, the Tribunal properly considered the applicant’s claim to be at risk of harm in Malaysia. 

3. To the extent that Ground 3 refers to discrimination and hardship, no such claim was advanced by the applicant beyond those addressed by the Tribunal and nor did any such claims arise squarely on the material before the Tribunal. The function of the Tribunal is to respond to the case that the applicant advances (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 405 per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] per Selway J; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and SelwayJJ).

4. Accordingly, Ground 3 is not made out.

Ground 4

1. Ground 4 asserts that the Tribunal was unreasonably suspicious of the truthfulness of the applicant’s claims just because of the absence of evidence.  It is true that the Tribunal based its adverse credibility finding on the quality of the applicant’s evidence, including the lack of contextual detail in that evidence.  However, as stated above, the Tribunal considered the applicant’s claims in detail and made findings that they were not credible. As stated above, the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave. 

2. The Tribunal’s findings in relation to the credibility of the applicant are summarised in the consideration of Ground 1 above. 

3. Accordingly, Ground 4 is not made out.

Conclusion

1. A fair reading of the Tribunal’s decision record makes it clear that the Tribunal understood the claims being made by the applicant, explored those claims with the applicant at a hearing and put to the applicant matters of concern it had about his evidence and noted the applicant’s responses.  The Tribunal then made findings based on the evidence and material before it which were open to the Tribunal for the reasons given.  A fair reading of the Tribunal’s decision record makes it clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law. 

2. In the circumstances, the Tribunal complied with its obligation under the statutory regime in the making of its decision, including the conduct of its review.  The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. 

3. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere and the proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  23 May 2018