DSO16 v Minister for Immigration

[2017] FCCA 1894

FEDERAL CIRCUIT COURT OF AUSTRALIA

DSO16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1894

Catchwords:
MIGRATION – Application for a Constitutional writ – adverse credibility findings – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 476

First Applicant: DSO16

Second Applicant: DSP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3448 of 2016

Judgment of: Judge Street

Hearing date: 10 August 2017

Date of Last Submission: 10 August 2017

Delivered at: Sydney

Delivered on: 10 August 2017

REPRESENTATION

Solicitors for the Applicant:

Mr M E Arch

Christopher Levingston & Associates

Solicitors for the Respondents:

Ms S He

Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The first and second applicants to pay the first respondent’s costs fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3448/2016

DSO16

First Applicant

DSP16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (the “Act”) in respect of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 November 2016 affirming a decision of the delegate on 15 February 2016 not to grant the applicants a protection visa. 

2. The applicants were found to be citizens of Malaysia and their claims were assessed against that country. The first applicant is the primary applicant and the second applicant was included as a member of the first applicant’s family unit. The first applicant arrived in Australia on 7 August 2013, having been granted a subclass 601 visa which ceased on 7 November 2013. It was not until 2 February 2015 that the applicant applied for protection. The second applicant arrived in Australia on 9 October 2013.

Review by the Tribunal

1. The first applicant was found to be of Muslim faith and of Malay ethnicity. The first applicant claimed to fear harm from his ex-wife’s family in circumstances where he married his ex-wife’s sister and alleged that he was then subjected to threats from her family. That marriage was one in respect of which the first applicant was divorced in 2012, having married her in 2008, and he married the wife’s sister in 1994 and divorced her in 2005. The first applicant alleged that he had been abducted in January 2010. The allegation advanced at the hearing was that he was kidnapped by his brother-in-law. The first applicant alleged he was beaten until he had passed out. Upon questioning, the first applicant indicated he did not know who the kidnappers were.

2. In response to questions from the Tribunal as to whether the kidnappers mentioned his wife, the first applicant said he could not remember and he said there was no theft. The first applicant alleged that he took himself to hospital and made a police report. No copy of any police report was provided to the Tribunal, which the Tribunal noted. In relation to the translation of the hospital report, the Tribunal noted that it discussed with the first applicant that the forms were incomplete, and that one form required a declaration to be completed and signed and that it was not. The Tribunal observed that at best, the forms confirmed that the first applicant had visited a hospital for treatment of hands, skull and chest on the basis of an allegation by the first applicant that he had been assaulted and was treated for a lacerated eye and given some medication. The report noted that the first applicant was discharged two days later. The Tribunal made reference to there being no actual police report that confirmed the assault or abduction. The Tribunal also observed that the original report was not provided to the Tribunal.

3. The Tribunal asked the first applicant about the threats allegedly made after his wife returned to him in 2010 and the first applicant conceded there was no violence, or threats of violence or harm towards him or his wife, nor were there any actual threats made by her family. The first applicant alleged there was police harassment but no actual violence or any detail. The Tribunal referred to the first applicant’s decision to leave his employment and the Tribunal confirmed with the applicant that there was no evidence of any link with his family in relation to the reasons why the first applicant left.

4. The Tribunal made reference to the second sister that the first applicant married seeking to divorce him in December 2012 because she could not stand moving around anymore and that she allegedly told him, “everything should be okay now.” The first applicant alleged in January 2013, he had trouble with the police and was detained for a drug test. The first applicant alleged the police said that they found drugs in the applicant’s car. The first applicant alleged he was beaten but received no injuries. The first applicant said he did not confess and he was not arrested and was released. The Tribunal asked the first applicant how this was connected to his wife’s family and he replied that his second ex-wife told him that her brother was well connected with the Narcotics Department.  The first applicant agreed that there was no proof at all of any family involvement in relation to that alleged harassment.  The first applicant did not leave Malaysia until August 2013.  The Tribunal made reference to the first applicant being able to leave Malaysia without any intervention, meaning that the Malaysian authorities had no adverse interest in him.

5. The Tribunal made reference to the first applicant marrying the second applicant in June 2014 and the benefit that the second applicant may obtain, if the first applicant was granted, protection and that the first applicant failed to respond.  The Tribunal identified having extensive concerns about the first applicant’s credibility.  The Tribunal noted it raised any inconsistencies between the first applicant’s evidence to the Tribunal and his written claims.  The Tribunal did not accept that the first applicant received any threats or harassment from the ex-wife’s family, directly or indirectly.

6. The Tribunal did not accept that the first applicant was prevented or not allowed to go to work by police officers or anyone else.  The Tribunal did not accept that the first applicant received any threats of harm or harassment from the police and did not accept that the first applicant had been scared of going to work because of being stopped by the police as a well-founded fear.  The Tribunal did not accept that the first applicant was terminated from his employment for any reason associated with threats of harm or harassment from the police, strangers or his ex-wife’s family.

7. The Tribunal did not accept the first applicant received any threats of harm or harassment from the police, strangers or his ex-wife’s family.  The Tribunal did not accept that the first applicant was in hiding or on the run.  The Tribunal made reference to the first applicant’s allegation that he was abducted and beaten and to his claim that this was done by his brother-in-law.  The Tribunal made reference to the first applicant then saying that this was done to him by unknown people and later, again, that the first applicant alleged that it was done by someone who had a police clout.

8. The Tribunal made reference to the documentary evidence provided by the applicants and noted that the first applicant failed to produce a police report.  The Tribunal did not accept that the first applicant was abducted by his brother-in-law or by police or anyone else.  The Tribunal referred to a document that was provided by the applicant.  The Tribunal noted that the document did not refer to any assault being allegedly made by the police. The Tribunal noted that the document was a translation and incomplete and that copies of the original were not provided.

9. The Tribunal did not accept that the documentation presented supported the claims made by the first applicant and, at best, found that it only supported the first applicant had been to hospital for two days to have a lacerated eye treatment. The Tribunal did not accept that the first applicant was arrested on false drug charges. The Tribunal found the first applicant has not suffered any harm in the past. The Tribunal found the risk or chance of harm in the reasonably foreseeable future to the first applicant is remote.

10. The Tribunal, having considered individually and cumulatively the material before the Tribunal, found there is no real chance that in the reasonably foreseeable future the first applicant will be persecuted for any reason including race, religion, nationality, political opinion or membership of any particular social group. The Tribunal found the first applicant’s fear of persecution was not well founded as required by s 5J of the Act. The Tribunal found the first applicant was not a refugee within the meaning of s 5H of the Act.

11. The Tribunal found there were not substantial grounds for believing that as a necessary and foreseeable consequence of the first applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm. The Tribunal found that the first applicant had failed to meet the criteria under s 36(2)(a) and s36(2)(aa) of the Act. Accordingly, the delegate’s decision was affirmed.

Application to this Court 

1. The ground in the application is as follows:

   1. The Second respondent fell into jurisdictional error by making a positive finding to the effect that the applicant had not suffered any harm in the past.

   Particulars

   (a) The preponderance of the evidence was that the applicant had suffered physical harm. The Second respondents finding" .. the Tribunal has found that the applicant has not suffered any harm in the past ... " was incorrect and the correct test is whether the applicant had suffered any harm for a convention related reason.

2. Mr Arch, the solicitor for the applicants, submitted that the Tribunal’s reasoning in paragraphs 55 and 83 and its conclusion in paragraph 88 were irrational and illogical or unreasonable. Mr Arch took the Court to the translated medical record and in particular, emphasised that the incomplete part relating to a declaration under Section 9 Poor and Impotent Laws concerned someone declaring that the relevant person was brought before the person under the supervision of an inspector to be named and was found to be able-bodied/impotent in earning a living.

3. Mr Arch submitted that the incomplete document was not one in respect of which a reasonable decision-maker could logically find that the incomplete section gave rise to an adverse credibility finding or refusing to give the document weight in support of the first applicant’s allegations of abduction. A reasonable decision-maker would be entitled to take into account the incomplete nature of the report, notwithstanding the reference to being able-bodied or impotent in earning a living, in determining what weight to give to the document and whether it supported the first applicant’s claims.

4. Further, the Tribunal in the present case identified the absence of any copy of the original in support of the alleged translated copy. A reasonable decision-maker is entitled to take into account the absence of the original in relation to a translation in determining what weight to give the document and as to whether it supports the credibility of an applicant. Further, the Tribunal identified other inconsistencies in respect of the first applicant’s evidence concerning the abduction, all of which provided a logical and rational basis for the adverse credibility findings by the Tribunal. The Tribunal’s reasons correctly identified the relevant law in an attachment identified and incorporated in the reasons of the Tribunal.  The reasons of the Tribunal are not to be read with a keen eye for error. 

5. The Tribunal gave detailed rational and logical reasons in support of its conclusion that the first applicant’s fear was not well-founded and that the first applicant failed to meet the criteria under s 5H of the Act and in support of the finding that the first applicant failed to meet the criteria under s 36(2)(aa) of the Act. The submission that the Tribunal merely found that the first applicant had not suffered harm in the past and therefore found that the applicant’s risk of chance of harm in the reasonably foreseeable future is remote is a mischaracterisation of the reasons of the Tribunal.

6. The Tribunal’s reasons, on a fair reading reflect a correct identification of the first applicant’s claims and evidence. The Tribunal engaged in a real and meaningful assessment of the first applicant’s credibility. The weight to be given in respect of the alleged supporting material that was open to the Tribunal and the adverse findings cannot be said to lack an evident and intelligible justification. 

7. I accept the submission of the first respondent that in substance the submissions in support of ground 1 invite the Court to engage in an impermissible merits review. No jurisdictional error as alleged in ground 1 is made out.

Conclusion

1. The application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 October 2017