DSL16 v Minister for Immigration
[2019] FCCA 3207
•12 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DSL16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3207 |
| Catchwords: MIGRATION – Application for review of decision of the Administrative Appeals Tribunal – whether the Tribunal misunderstood the applicant’s evidence – whether the Tribunal was unreasonable – whether the Tribunal complied with the relevant statutory requirements – whether the Tribunal was bias – s.438 of the Migration Act 1958 (Cth) certificate – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.438, 424A, 425, 476, pt.7 |
| Cases cited: SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 |
| Applicant: | DSL16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3442 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 25 October 2019 |
| Date of Last Submission: | 25 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 12 November 2019 |
REPRESENTATION
| Applicant: | In person |
| Representative for the Respondents: | Mr Downie |
| Solicitors for the Respondents: | Minter Ellison Lawyers |
ORDERS
The application made on 6 December 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3442 of 2016
| DSL16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 6 December 2016 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), made on 25 November 2016, which affirmed the decision of the Minister’s delegate (“the delegate”) not to grant the applicant a protection visa.
The evidence before the Court is contained in a bundle of relevant documents (the Court book –“CB”–“RE1”), and the affidavit of Julian D’Arcey Pinder of 31 October 2017, which annexes documents that were the subject of a s.438 certificate.
Background
The applicant is a citizen of Malaysia and of Chinese ethnicity (CB 12 and CB 30). He arrived in Australia on 11 October 2009 (CB 19). His application for a protection visa was received by the Minister’s Department on 12 November 2015 (CB 40–CB 74).
The applicant’s claims to fear harm were initially set out in his protection visa application. He claimed to fear harm on return to Malaysia because as an ethnic Chinese he would be subject to discrimination and persecution from both the Malaysian authorities and local people.
He claimed that he had been a self-employed shop owner who had been subject to attack by indigenous Malays who had come to his shop, beat him, and asked for “protection fees”. The police did not assist him.
The delegate was not satisfied that the applicant’s claim to fear persecution was well-founded or that he faced a real chance of significant harm on return (CB 90–CB 101).
The Tribunal
On 17 March 2016 the Tribunal received the applicant’s application for review (CB 103–CB 109).
Relevant to the current consideration, I note that on 21 March 2016 a delegate of the Minister (not the same delegate who decided the visa application) purported to issue a certificate pursuant to s.438 of the Act. The certificate was said to relate to folios 66 and 90 on the relevant departmental file (CB 102) (see further below).
On 21 November 2016 the applicant appeared at a hearing before the Tribunal following an invitation from the Tribunal to do so (CB 117– CB 129). The Tribunal’s account of what occurred at the hearing is variously set out in its decision record (see in particular [10]–[11], [15] and [25]–[36]).
The Minister’s written submissions contain, in light of the evidence before the Court, a fair outline of the Tribunal’s decision:
“8. The Tribunal set out in Annexure A of its decision the procedural background, the applicant's claims and evidence given both before the delegate and at the Tribunal hearing and the Department of Foreign Affairs and Trade (DFAT) country information it relied upon (CB 152–155, [23]–[37]). The Tribunal set out the relevant law (CB 145–146, [1]–[7]) and turned to consider the applicant's claims and evidence in respect of which it made the following key findings:
(a) the applicant's evidence given in his application and given at the Tribunal hearing was inconsistent in terms of where had lived, his job and the details of his attacks (CB 146, [10]–[11]);
(b) it did not accept the applicant's explanation that he did not know what was in his application because he had previously confirmed the application was interpreted back to him and was correct (CB 146, [11]);
(c) it found that the applicant was unable to discuss the recounted events in support of his claim to fear harm with any consistency because he was making up his evidence as he went along (CB 147, [13]);
(d) it was not persuaded by the applicant's explanation for the delay in applying for a protection visa since first arriving in Australia in 2009 which it found not to be consistent with someone who feared returning to Malaysia and found that the applicant had fabricated his claims in order to found a claim for protection (CB 147, [13]);
(e) it did not accept that the applicant had suffered any previous harm in Malaysia nor that there was a real chance he would suffer harm from the Malays that alleged asked him for protection money in the reasonably foreseeable future (CB147, [14]);
(f) it accepted that the applicant was a Chinese Malay as claimed but, having regard to the DFAT report from July 2016 which outlined that Chinese Malaysians generally did not experience discrimination or violence on a day-to-day basis, it did not find there was a real chance he would face serious harm on account of his ethnicity (CB147, [17].
9. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under paragraph 36(2)(a) of the Act (CB 147, [18]). Moreover, the Tribunal was not satisfied that there was credible evidence that disclosed substantial grounds for believing that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia and found that the applicant was a person in respect of whom Australia had protection obligations under paragraph 36(2)(aa) of the Act (CB 148, [19]). For these reasons, the Tribunal affirmed the decision not to grant the applicant a protection visa (CB 148, [22]).”
[Errors in the original.]
Before the Court
The applicant applied for judicial review to this Court on 6 December 2016. The grounds of the application are in the following terms:
“1. AAT is wrong about the facts I stated during the interview. I told the Tribunal that the Malay people came to my shop asking for goods without paying and they threatened to rob me and cut me on my hands and legs. I showed the Tribunal my injuries. AAT said I didn't disclose this in my application, I did said I was beaten up. I was only not that specific at that time. I would imagine it is reasonable to provide more specifics during the interview. And it became a reason for AAT to punish me by saying that I fabricated all of this. It is really not fair.
2. AAT has been very harsh and unreasonable on me. AAT asked me about an address I lived before. I said I had it in my bag but AAT refused me to look into my bag and insisted me to write it on the paper. I am an old man and suffered attack back in Malaysia. It is really difficult for me to remember the address and write it down. I don't understand why AAT member was so harsh on me and I felt that I was also looked down upon by the member. The member showed prejudice and arrogance against me.
3. AAT said that Chinese Malays will not experience discrimination or violence on day-to day basis. This is not fair. A good Chinese officer in Parramatta police was killed by a terrorist last year. I face the same religious and racial attacks which do not really require me to be attacked on a day to day basis. I can be killed anytime by the extremist Islamic in Malaysia. The risks are real and can happen any time.”
By orders made by a Registrar in April 2017, the applicant was given the opportunity to file any amended application, any evidence by way of affidavit, and written submissions prior to the final hearing. By orders made by the Court on 2 September 2019, the parties were given a further opportunity to file written submissions. By the time of the hearing, nothing further had been filed by the applicant.
At the hearing, the applicant appeared in person. He was assisted by an interpreter in the Mandarin language.
When the applicant was asked to make his submissions, his response was that he had nothing to say. He asked the Court to have regard to the three grounds of his application, and to give him a “fair” decision. His answer was the same when subsequently invited to make any comment on the Minister’s submissions, which had been translated for him by the interpreter.
Consideration
Ground one asserts that the Tribunal was “wrong about the facts”, he had stated at the Tribunal hearing. Further, that the Tribunal’s finding that he fabricated his account of the Malay people coming to his shop was “really not fair”. There are a number of elements relevant to the consideration of this complaint.
One, despite opportunity, the applicant has not put any evidence before the Court as to what occurred at the hearing with the Tribunal. The only evidence before the Court of what occurred are the various references in the Tribunal’s decision record.
Although not entirely clear, it may be that the applicant seeks to complain that the Tribunal misunderstood his evidence. If that is the case then in the absence of any evidence to challenge the Tribunal’s report of what the applicant stated, the complaint cannot be made out.
On the Tribunal’s account, there is nothing to indicate that it misunderstood the applicant’s claims and evidence. In the circumstances, this complaint seeks to express grievance with the facts as found by the Tribunal. No jurisdictional error is revealed.
Two, the ground appears to take issue with the Tribunal’s finding that the applicant’s claim at the Tribunal hearing, that the Malay intruders came into his shop, and cut his hands and legs, was not a claim made by the applicant in his visa application.
On the evidence before the Court, there is nothing to indicate that the applicant advanced this particular aspect of his claims as to past harm at any time prior to the hearing with the Tribunal.
In this light, it was reasonably open to the Tribunal to find that the particular claim that he was cut with a knife during this intrusion was a claim made for the first time at the hearing. No jurisdictional error is revealed here.
Three, in his submissions the Minister submits that this finding provides a logical and probative basis for the Tribunal’s ultimate finding that the applicant’s claims were fabricated, so as to found a claim for protection.
It is the case that the Tribunal must be careful when considering the credibility of an applicant’s evidence, to not take into account what could be described as trivial matters (see SZLGP v Minister for Immigration and Citizenship [2008] FCA 1198 and CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 at [62]).
In the circumstances presented, it was reasonably open to the Tribunal to find that whether the Malay people produced a knife when they came to the applicant’s shop, and cut his arms and legs, was an important detail in relation to his claim as to past harm.
In this light, I agree with the Minister that the Tribunal’s finding, when taken with the other relevant findings made by the Tribunal as to the applicant’s evidence as to past events, does provide part of the foundation for the Tribunal’s ultimate finding that the applicant fabricated this part of his claims.
Four, the applicant’s ground contends (“I would imagine”) that it was reasonable of him not to provide “specifics” in his application for the visa, in the expectation that he would provide more detail during the “interview”.
The reference to “interview” here, in context, is a reference to the Tribunal hearing. This argument, even if accepted, fails to appreciate that the Tribunal squarely put this matter to him at the hearing, and he sought to provide an explanation as to why he did not provide this detail earlier (see [32] at CB 153).
There is no evidence before the Court to indicate that the explanation proffered now by the applicant, for the omission of the reference to the knife from his claims in his protection visa application, was due to the expectation of raising this matter later.
To the contrary, the applicant is reported as having told the Tribunal: “…when these things happened he did not think too much about it and there was a lot to recall…” ([32] at CB 153).
Further, and contrary to the applicant’s contention in ground one that he had an expectation that he would provide further detail at the “interview”, the Tribunal reports, that at the commencement of the hearing, the applicant confirmed that he had nothing to add to what had been set out in his protection visa application ([25] at CB 152).
Five, although not entirely clear, it may be that by ground one the applicant seeks to complain that he was not given an opportunity to attend an interview with the delegate.
There was no statutory obligation on the delegate to invite the applicant to an interview. In any event, any such omission would have been an omission by the delegate and not the Tribunal. Any “error” by the delegate is not in the circumstances of this case reviewable by this Court (s.476(2) and (4) of the Act).
Further, even in circumstances where he did not attend an interview with the delegate, if the applicant had expected to add further details at an interview, he did not take up the opportunity to do so at the commencement of the Tribunal hearing. That the matter of the knife emerged later in the hearing serves to reinforce the Tribunal’s view that his claim of past harm was not true.
Six, in the circumstances ground one does not rise higher than an expression of disagreement with the Tribunal’s adverse finding as to the credibility of the applicant’s claims as to past harm. On the evidence before the Court, the Tribunal’s conclusion, and the findings that informed it, were reasonably open to it, and for which it gave cogent and intelligible reasons.
The applicant’s submission before the Court that he receive a “fair” decision from the Court misunderstands, the nature of the proceedings he initiated in this Court. This Court cannot intervene to substitute its own findings of fact for those made by the Tribunal. To the extent that the applicant complains that the Tribunal’s decision was not “fair” then the Tribunal’s obligation extends to providing a fair opportunity to the applicant to be heard, not to make a decision which the applicant believes to be the “fair” or right decision (Attorney-General (NSW) v Quin [1990] HCA 21). In all ground one does not reveal jurisdictional error in the Tribunal’s decision.
Ground two asserts that the Tribunal was “very harsh and unreasonable” towards him. To the extent that some particularity can be ascertained from the ground, a number of elements emerge for consideration.
One, the assertion that the Tribunal was “harsh” may be understood as an expression of grievance with the Tribunal’s adverse decision. Given that the Tribunal’s findings which informed the decision were reasonably open to it on the evidence before it, and for the reasons it gave, this again is a request for impermissible merits review.
Two, it may be that the reference to “harsh” is an attempt to argue that the Tribunal’s decision was unfair. To the extent that this is a complaint about the outcome, then relevantly fairness in matters of this type relates to the process and procedures statutorily imposed on the Tribunal, not on the outcome of the decision.
Three, Part 7 of the Act does set out, exhaustively, the Tribunal’s relevant procedural fairness obligations.
In this regard the applicant was invited to a hearing pursuant to s.425 of the Act. On the evidence, the invitation complied with all of the relevant statutory and regulatory requirements. There is nothing in the evidence to show that the hearing was anything other than a meaningful opportunity for the applicant to give his evidence, and make his arguments in relation to the issues in the review.
The applicant was put on notice of the Tribunal’s concerns about his claims and evidence and he was given the opportunity to respond (see in particular [31]–[35] at CB 153-CB 154).
Nor is there anything to indicate that s.424A(1) of the Act was enlivened. The Tribunal’s concerns, its doubts about the applicant’s evidence, the absence of evidence and inconsistencies in this evidence, were not information for the purposes of s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17]–[18]).
Further, the information relied on by the Tribunal was either given by the applicant in writing for the purposes of his protection visa application, or given to the Tribunal for the purposes of the review. Such information is excluded from the operation of s.424A(1) of the Act by operation of s.424A(3)(ba) and (b) of the Act respectively.
Four, ground two asserts that the Tribunal denied the applicant the opportunity to refresh his memory from documents he had brought with him to the hearing, when it asked him about an address at which he had lived.
The Tribunal’s decision record does reveal that at the hearing the Tribunal did ask the applicant questions about where he had lived in Malaysia ([26] at CB 152).
While the applicant is reported as, ultimately, saying he did not remember the address at which he had last lived for 4–5 years prior to coming to Australia, there is nothing to indicate that he asked the Tribunal for the opportunity, and the Tribunal denied him the opportunity, to refresh his memory from documents in his bag.
Nor is there evidence that the applicant told the Tribunal his memory was poor, because he was an “old man” or because of the claimed trauma of past events. He simply told the Tribunal he could not remember the address where he had otherwise claimed to have lived for 4–5 years before coming to Australia.
In all therefore, the allegation that he was denied a meaningful opportunity to give his evidence, and fully participate in the hearing is not made out (see Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [20] per Keane CJ).
Five, ground two also asserts that the Tribunal “showed prejudice and arrogance” towards him and he was “looked down upon” by the Tribunal.
This may be an attempt to assert bias, or the apprehension of bias on the part of the Tribunal member. As the Minister submits if that is the case then such allegations must be clearly made and distinctly proven (Minister for Immigration v JiaLegeng [2001] HCA 17 at [69] and [127]).
In the current case, the allegation appears to derive specifically from the matter of the Tribunal’s claimed conduct in relation to the questions concerning the applicant’s previous address.
On the evidence that is before the Court, and as set out above, there is nothing to indicate that the Tribunal did not bring an open mind to the proceedings or that the well-informed lay observer might reasonably apprehend that the Tribunal might not have brought an open mind both in relation to the matter of the residential address and generally.
Six, in the circumstances the assertion that the Tribunal was harsh appears to also be a complaint about the Tribunal’s adverse findings. If so, on the evidence, it is not possible to draw an inference of pre-judgement or bias simply from the fact of the Tribunal’s adverse findings (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38]). This is particularly so where the Tribunal explained its findings, which reasonably arose from the evidence before it. In all ground two does not reveal jurisdictional error in the Tribunal’s decision.
Ground three asserts that the Tribunal’s findings that ethnic Chinese would not experience discrimination of violence on a day to day basis in Malaysia was not fair. Again there are a number of elements to the consideration of this ground.
One, the ground misunderstands, and misrepresents the actual relevant finding made by the Tribunal. The Tribunal did not find that ethnic Chinese in Malaysia would not face discrimination.
Rather the relevant findings were:
“17. The Tribunal accepts the applicant is Chinese Malay. Based on the available evidence including the recent July 2016 DFAT report, the Tribunal finds the applicant may face low levels of discrimination only. The Tribunal has considered the applicant's accepted claims both singularly and cumulatively is not satisfied, on the available evidence including the DFAT report, that there is a real chance that the applicant will face serious harm as defined in s 5J(4) and s 5J(5) because he is Chinese Malay.”
This was based on the country information before it:
“16. DFAT has stated that Chinese Malaysians generally do not experience discrimination or violence on a day-to-day basis and may face low levels of discrimination when attempting to gain entry into the state tertiary system or the civil service.”
The Tribunal’s findings were reasonably open to it on what was before it. The choice of, and weight to be assigned to, country information is for the Tribunal to determine (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6 and NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10). In the circumstances, this complaint again is an expression of grievance with the Tribunal’s findings. The ground in this regard seeks impermissible merits review.
Two, the reference to what occurred to “A good Chinese officer in Parramatta” does not assist the applicant. There is nothing to show that the applicant raised this with the Tribunal at the hearing. In any event, it is difficult to see how a “terrorist” attack in Australia, has any relevance to the applicant’s claimed circumstances in Malaysia.
Three, the assertion in the ground that the applicant fears racial attacks in Malaysia is no more than a general restatement of his claim to fear harm which the Tribunal considered. The Tribunal’s findings in this regard were reasonably open to it. The Tribunal’s explanation for its findings, in its analysis which informed the findings, was reasonable. No jurisdictional error is revealed in this regard.
Four, the applicant’s ground asserts that he would “be killed anytime by the extremist Islamic in Malaysia”. This appears to be linked to an assertion that he faces “religious” attacks.
The difficulty now for the applicant is that there is no evidence before the Court that he ever raised a claim to fear harm on religious grounds either in his application for the protection visa or before the Tribunal.
The claim that was made by the applicant was that he feared harm from the Malay people because he was an ethnic Chinese. That was the claim considered by the Tribunal. The Tribunal is not obliged to consider claims not expressly made or clearly arising from the circumstances presented (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26). In all no jurisdictional error is revealed by ground three.
The Minister also raised the issue that in this case a delegate of the Minister issued a certificate said to be pursuant to s.438 of the Act in relation to certain documents on the Minister’s departmental file.
A copy of the certificate is in evidence before the Court (see CB 102). The certificate seeks to restrict disclosure of folios 66 and 90 of the Minister’s department’s file (see the annexure to the affidavit of Mr Pinder).
The Minister concedes that the certificate is invalid. Further, that it is not apparent that the Tribunal disclosed the existence of the certificate or the folios to the applicant.
However, the Minister relies on what was relevantly said in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 to submit that the Tribunal’s failure was not material to the outcome as the documents in question were not relevant to the review. That is, the applicant was not deprived of the possibility of a successful outcome in the review by the non-referral to the certificate and the non-disclosure of the documents (SZMTA at [2]–[3] and MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68).
The document described as folio 66 contains two pages. It reports on the applicant’s identity. In the current case there was no issue before the Tribunal as to the applicant’s identity.
The document described as folio 90 is a “Disclosure Decision Checklist”. Contrary to what is stated on the certificate itself, the checklist states that there are no documents “related” to s.438 of the Act on the department’s file.
While the disclosure of this document, in the circumstances, may have been confusing (given that such a document at folio 66 did exist) it cannot be said that this document of itself, or in connection with the document at folio 66, was relevant to the review before the Tribunal or material to the outcome. In any event, the applicant would not have been confused because the document was not given to him. In all the circumstances therefore, this does not reveal jurisdictional error.
Conclusion
There is no jurisdictional error apparent in the Tribunal’s decision. It is appropriate therefore to dismiss the application. I will make the appropriate order.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 12 November 2019
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