DQT16 v Minister for Immigration

[2018] FCCA 1429

FEDERAL CIRCUIT COURT OF AUSTRALIA

DQT16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1429

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Protection visa – whether Tribunal considered applicant’s claims – whether Tribunal biased – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Applicant: DQT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3373 of 2016

Judgment of: Judge Manousaridis

Hearing date: 31 May 2018

Date of Last Submission: 31 May 2018

Delivered at: Sydney

Delivered on: 7 June 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitors for the First Respondent: Ms K Garaty of HWL Ebsworth Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3373 of 2016

DQT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. 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

1. The applicant arrived in Australia on 25 April 2012 as the holder of an Electronic Travel Authority visa. On 28 October 2014 the applicant applied for a Protection visa where the applicant made the following claims for protection:[1]

   a)The applicant left Malaysia in order to hide from drug traffickers who forced her to be involved in their drug trafficking scheme.

   b)The applicant was “forced to deal with drug” but she “refused to”, and so she was beaten and “sex harassed” several times and on one occasion the applicant was kidnapped, locked up, and sexually harassed.

   c)The applicant fears that the “same drug dealer” will find her and force her to engage in drug trafficking, and that if she refuses “them again” she will be killed.

   d)The applicant identifies the drug dealers that she fears will harm her as four individuals, A, B, C and D.

   e)The drug dealers are powerful because their “drug trafficking business is under the protection of the Malaysian police”. After the applicant escaped from the drug dealers’ kidnapping, she “turned to the police for help but in vain” and the drug dealers will seek revenge because the applicant made a complaint to the police.

   f)The police are “somehow connected” to the drug dealers. The applicant reported to the police that the drug dealers had “kidnapped and sex harassed” her but the police did not accept her case.

   g)There is no justice in Malaysia and racial discrimination is very serious. When the applicant asked for help from the police, they “not only refused to help [the applicant], but also remarked that Malay-Chinese people were ‘troublemakers’”.

   [1] CB17-20

2. In a statement attached to her Protection visa application the applicant claimed the following:[2]

   a)In November 2011 the applicant met A, B, C and D at a bar that she had attended “a few times”. The applicant initially thought that A, B, C and D were “not bad people” but after spending more time with them she discovered they were drug traffickers who sold drugs at the bar.

   b)The drug dealers told the applicant that “selling drugs was a safe business for them as the police knew of their activities so it was not a thing to worry about”. The drug dealers came to the applicant’s home to pressure the applicant to “join their drug trafficking scheme” but when she refused they “resorted to violence” and beat up the applicant to intimidate her.

   c)The applicant felt very unsafe and she was scared the drug dealers would return to find her and continue threatening her, so she left for her friend’s house in Melaka where she remained for two weeks.

   d)When in Melaka the applicant reported to the police that the drug dealers had followed her and beat her “until she was bleeding and bruised” but the police explained they could not help with the issue and they threatened to lock her up if she did not leave the police station.

   e)The applicant left for her aunt’s house in Kuantan where she remained for three weeks. The drug dealers found the applicant and kidnapped her, locked her up and sexually harassed her but the applicant managed to escape at night when “they were asleep”.

   f)The applicant did not want to involve her family or friends and she knew that continuing to move from place to place would endanger them and result in her breaking down mentally.  The applicant had no alternatives left so her family told her to hide overseas. The applicant decided to seek refuge in Australia.

   g)The applicant continues to be afraid because she is Malay-Chinese and Malaysia cannot provide her with “personal safety and security”.

   [2] CB

Tribunal’s reasons

1. The Tribunal did not accept the applicant had been approached by the drug dealers or any other person or gangs to sell drugs, or that the drug dealers had threatened her at her house, or that she went to the police who refused to help her or that she was forced to flee to her friend’s house in Melaka, then to her aunt’s house in Kuantan and then to Australia.[3] Nor did the Tribunal accept the applicant had been kidnapped or detained, or that she had returned home, or that she had a conversation with her family to the effect that as a result of these events, she needed to come to Australia.[4] The Tribunal found the applicant changed her evidence in relation to where she was kidnapped.[5]

   [3] CB89, [12]

   [4] CB89, [12]

   [5] CB89, [11]

2. The Tribunal noted that in her statement the applicant said that A, B, C, and D approached the applicant at a bar, they subsequently came to her door, and when the applicant still refused to sell drugs they beat her; the applicant then went to her aunt in Kuantan where they found the applicant, kidnapped her and locked her up for two days sexually harassing her during the period. Before the Tribunal, on the other hand, the applicant said that, except for D, the applicant could not remember the names of the people who approached her at the bar, and that the applicant said she was taken from her friend’s place at Melaka for three days but then stated that on the second day she managed to escape through the window after D went outside; the applicant then went to her aunt’s house where the drug dealers found her, but the applicant said she forgot what happened.

3. The Tribunal found that “changing nature of the applicant’s evidence in relation to the substantial incident of whether she was kidnapped while she was at her friend’s place in Melaka or at her aunts [sic] in Kuantan” was such that the Tribunal did not accept the applicant was telling the truth about being approached by A, B, C, and D to sell drugs or that they kidnapped her. The Tribunal noted that in reaching that conclusion it took into account the applicant’s delay in applying for a Protection visa, which was some two and a half years after she arrived in Australia.

4. The Tribunal also considered the applicant’s claim that she feared for her personal safety because she was Malay Chinese and, for that reason, police would not protect her if D threatened her because Chinese were discriminated against. The Tribunal noted it had already found it did not accept that the applicant had been approached by D or by anyone else, or that the applicant went to the police or that the police had refused to help her. Relying on country information the Tribunal accepted the applicant may face low levels of discrimination as a Chinese Malay, but it was not satisfied that the applicant has been threatened or suffered any harm in the past and it was not satisfied that there is a real chance that the applicant will face serious harm in the reasonably foreseeable future. The Tribunal concluded it was not satisfied the applicant has a well-founded fear of Convention-related persecution now or in the reasonably foreseeable future if she returns to Malaysia.[6]

   [6] CB90, [15]

5. The Tribunal considered whether, because the applicant is a Chinese Malay, the applicant satisfied the criterion provided for by s.36(2)(aa) of the Migration Act 1958 (Cth). Relying on the same country information on which it relied for concluding it was not satisfied the applicant has a well-founded fear of Convention-related persecution, the Tribunal, while accepting the applicant may face low levels of discrimination as a Chinese Malay, was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm because she is a Chinese Malay.

Grounds of application

1. The applicant’s application grounds of application are as follows:

   Jurisdictional error has been made:

   1. The Tribunal does not accept my claims on the ground of unsubstantiated evidence and my claims are ignored.

   The Tribunal listed reasons why I was not credible. But the reasons are arguable.

   My experience happened 4 years ago. It is understandable to have unclear memory for what had happened a long time ago.

   2. Tribunal does not fully consider discrimination faced by ethnic Chinese

   3. The Tribunal does not fully consider potential risk if I return to Malaysia.

2. The applicant, who is not legally represented, made submissions in relation to the grounds. As to the second paragraph of ground 1 the applicant said that things happened in the past, and it was impossible for her to remember those things. I asked the applicant whether she claimed the Tribunal made some error in not believing the applicant’s claims. The applicant said she did not know what else to do about that. As to the third paragraph of ground 1 the applicant said that she was asked the same questions again and again. After I asked the applicant to identify who asked the applicant the same questions again and again the applicant said the “department” and the Tribunal. I take the applicant’s reference to the “department” to be a reference to the delegate of the Minister.

3. As to ground 2 the applicant made some submissions which I could not initially understand. When I informed the applicant I did not understand what she intended to say, the applicant said the Tribunal discriminated against her because she was ethnic Chinese; and that the only basis on which the applicant said she made that submission was that the Tribunal did not believe her. The applicant made no submissions in relation to ground 3.

Ground 1

1. Ground 1, as stated, makes a number of claims. The first is that the Tribunal did not accept the applicant’s claims on the grounds of unsubstantiated evidence. That mischaracterises the basis on which the Tribunal did not accept the applicant’s claims. The principal reason for which the Tribunal did not accept the applicant’s claims is that the applicant had changed her evidence on a critical aspect of the claim she stated in her Protection visa application.

2. Second, the ground claims the Tribunal ignored the applicant’s claims. That claim is incorrect. The Tribunal identified and considered each of the applicant’s claims.

3. Third, the ground appears to claim that although the Tribunal listed reasons why it found the applicant was not credible, the applicant’s claims “are arguable”. That claim goes no further than expressing disagreement with the Tribunal’s finding that it did not accept the applicant was telling the truth, and thus discloses no jurisdictional error by the Tribunal.

4. Fourth, the ground states that, given that the events the applicant related to the Tribunal occurred more than four year ago, it was understandable the applicant had an unclear memory of those events. This is an appeal to the Court to review the merits of the claims the applicant made before the Tribunal, and discloses no jurisdictional error by the Tribunal. The Court does not have jurisdiction to review the merits of the applicant’s claims before the Tribunal.

Grounds 2 and 3

1. These grounds fail. Even though the Tribunal did not accept the applicant to be a witness of truth and, for that reason, did not accept the applicant’s evidence of the harm she experienced when in Malaysia, the Tribunal did consider whether the applicant had a well-founded fear of persecution because she is Chinese Malay. The Tribunal also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm because she is Chinese Malay.

Submissions at hearing

1. The applicant may be taken to have made three submissions before me. The first is that things happened in the past, and it was impossible for her to remember those things. That is an appeal to the merits of the claims the applicant made to the Tribunal, and therefore discloses no jurisdictional error by the Tribunal.

2. The second claim the applicant made is that the “department” (which, as I have already noted, I take the applicant to have intended to refer to the delegate of the Minister) and the Tribunal asked the applicant the same questions. That the Tribunal may have asked the applicant the same or similar questions the delegate asked of the applicant by itself discloses no jurisdictional error. Given the Tribunal’s function was to consider the applicant’s claims afresh it is natural to expect the Tribunal would have asked similar questions about the applicant’s claims to those the delegate asked.

3. The third claim the applicant made before me is that the Tribunal was biased against the applicant because she is Chinese Malay. The only matter on which the applicant said she relied for making that claim was the Tribunal’s not finding the applicant was a witness of truth. That by itself cannot support a finding of actual bias or establish a reasonable apprehension of bias.

Disposition and costs

1. Given the applicant has not succeeded on any of the grounds on which she relies, I propose to order that the application be dismissed.

2. At the conclusion of the hearing I indicated that I proposed to reserve my judgment but pronounce orders on 7 June 2018. The applicant said she did not wish to appear on that occasion if she was not required to do so. I then invited the parties to make submissions as to costs. I explained to the applicant that the usual rule is that the unsuccessful party must pay the successful party’s costs. I asked the applicant whether she wished to make any submission why the ordinary rule should not apply. The applicant said she did not wish to make any submissions about that. The applicant did say she had no money.

3. Ms Garaty, who appeared for the Minister, submitted that the usual rule should apply, and that if the Minister were to succeed he would ask for an order that the applicant pay the Minister’s costs and that those costs be set in the amount of $5,600. The applicant said she did not wish to make any submissions about the amount for which any costs that she may be ordered to pay to the Minister are to be set.

4. In my opinion costs should follow the event. That the applicant may have no money to pay the Minister’s costs is no reason for departing from the ordinary rule. I propose to order, therefore, that the applicant pay the Minister’s costs. I am satisfied I should set the Ministers costs in the amount of $5,600 which is less than the amount prescribed by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 7 June 2018