DTY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 3352
•7 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
DTY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3352
File number(s): SYG 2545 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 7 December 2020 Catchwords: MIGRATION – review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error Legislation: Migration Act 1958 (Cth) s 5AAA, Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510
AMF17 v Minister for Immigration & Anor [2018] FCCA 1848
Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 104Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 176SZKPN v Minister for Immigration & Citizenship [2008] HCASL 500
Number of paragraphs: 28 Date of hearing: 7 December 2020 Place: Sydney Applicant Applicant appeared in person Solicitor for the First Respondent: Ms Zinn ORDERS
SYG 2545 of 2019 BETWEEN: DTY19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
7 DECEMBER 2020
THE COURT ORDERS THAT:
1.Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
REASONS FOR JUDGMENT
Revised from transcript
JUDGE DRIVER
INTRODUCTION
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made orally on 5 September 2019 and written reasons were provided on 19 September 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 23 November 2020, which I adopt.
BACKGROUND
The applicant is a female citizen of Malaysia who arrived in Australia on 28 July 2016 as the holder of a Tourist (Subclass 601) visa.[1]
[1] Court Book (CB) 15, 49
On 20 September 2017, the applicant applied for a protection visa.[2] In the Form 866C, the applicant made written claims that she was mistreated and denied “rewards of the society” because of her ethnic group. She claimed her Chinese ethnicity was “constitutionally disfavoured” in relation to education and scholarship. The applicant also claimed that she endured mental and physical harm and was bullied by fellow students who “tossed” her belongings and ransacked her backpack. She claimed she voiced her concern to “relevant authorities” but no action was taken.[3]
[2] CB 1-28
[3] CB 24-26
Other than pages from her passport,[4] the applicant provided no other documents in support of her protection visa application.
[4] CB 27, 29-33
On 30 October 2017, the delegate made a decision refusing to grant the applicant a protection visa.[5] The delegate had regard to country information that indicated there were no laws or constitutional provisions that discriminated against Chinese Malaysians.[6] The delegate found there was no evidence to suggest that the applicant would be denied state protection due to her race, and was not satisfied that the applicant faced a real chance of serious harm or a real risk of significant harm.[7]
[5] CB 49-56
[6] CB 50-51
[7] CB 51-52
THE TRIBUNAL
On 15 November 2017, the applicant applied to the Tribunal to review the delegate’s decision.[8] She gave the Tribunal copies of the delegate’s refusal notification letter and decision record.[9]
[8] CB 57-58
[9] CB 58
On 12 June 2019, the applicant was invited to attend a hearing scheduled for 5 September 2019,[10] which she attended.[11]
[10] CB 65-71
[11] CB 76-78
At the conclusion of the hearing, the Tribunal delivered an oral decision affirming the decision to refuse to grant the applicant a protection visa.[12] The applicant subsequently requested written reasons for the decision,[13] which were provided on 19 September 2019.[14]
[12] CB 80-84
[13] CB 85
[14] CB 88-96
In its decision, the Tribunal:
(a)recorded the applicant’s evidence that she:
(i)had not suffered any harm of the type described in her application since leaving school;[15]
[15] CB 90, [14]
(ii)had no supporting or corroborative evidence to demonstrate that she was pushed, hit and shoved at school and no correspondence regarding the complaint she made to the Ministry of Education;[16] and
[16] CB 90, [15]
(iii)travelled to Thailand a number of times during 2016 on holidays but never sought protection of Thailand on any of these occasions.[17]
[17] CB 90, [17]
(b)found that if the applicant had been suffering harm since her school days, she would have sought protection at the first opportunity when she went on holidays to Thailand, and this was inconsistent with her claimed fear of harm;[18]
(c)found that any claims the applicant had related only up to 1995 and she had not suffered any adverse consequences of any type for any reason that would invoke Australia’s protection obligations;[19]
(d)noted there was no independent documentary evidence to support the applicant’s claims and no evidence to indicate that she ever sought protection in her home country or made any type of complaint to any government authority;[20]
(e)found the applicant had not been able to substantiate her claims of work as a waitress, cleaner or dishwasher with any information or documentation, and that her stability of residence and continuity of employment generally reflected a “very stable lifestyle history”;[21]
(f)found the applicant had given “virtually no” information relating to any aspect of persecution continuing from her school days or at any time to date;[22]
(g)found the applicant remained a “person of mystery” who was unable to substantiate any aspect of persecution at any time, and this lack of information indicated that she had not been forthcoming with the Tribunal and was not a person of credit;[23]
(h)found no objective, independent documents had been provided to support the applicant’s claimed harm;[24]
(i)found there was no other information before it to indicate that the applicant had suffered any adverse treatment whilst in Malaysia for any reason at any time, and the lack of any detailed history of the applicant indicated she was not willing to be honest with the Tribunal;[25]
(j)found the applicant was unable to present any information at all about her claims of persecution or to satisfy any of the threshold criteria for the grant of the Protection visa;[26] and
(k)referred to s.5AAA of the Migration Act 1958 (Cth) (Migration Act) which made it clear that it was the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations.[27]
[18] CB 91, [20]
[19] CB 91, [21]
[20] CB 91, [22]
[21] CB 91, [23]
[22] CB 91, [23]
[23] CB 91, [24]
[24] CB 92, [27]
[25] CB 92, [28]
[26] CB 92, [28]
[27] CB 92, [30]-[31]
Given the non-existence of any objective, independent, supportive or corroborative information, the Tribunal found the applicant’s claims were not genuine and had been fabricated.[28] Accordingly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution or faced a real risk of significant harm.[29]
[28] CB 92, [29]
[29] CB 93, [32]-[35]
THE CURRENT PROCEEDINGS
These proceedings began with a show-cause application filed on 3 October 2019. There are three unparticularised grounds in that application:
1.AAT did not consider my claim that I was harmed in Malaysia because I was an ethnic Chinese.
2.AAT asked irrelevant questions which caused adverse effect to my case.
3.AAT misunderstood my situation, which caused adverse effect to my case.
Therefore, there exist jurisdictional errors and my case should be reconsidered.
The application was technically defective in that although it sought a writ of certiorari, it did not seek a writ of mandamus or an injunction. The applicant confirmed, however, that she wished the matter to be returned to the Tribunal for a fresh determination. Accordingly, I amended the application to seek a writ of mandamus as well as certiorari.
I have before me as evidence the court book lodged on 2 December 2019. I received as a submission the applicant’s affidavit filed with her application. I invited oral submissions from the applicant this afternoon. She told me that she wants her visa back and does not want to become illegal.
I asked her to tell me what, in her view, was wrong with the Tribunal decision. The applicant told me that she was concerned about the Tribunal’s questioning in relation to her passport. This appears in the Tribunal’s decision record at [18] and [19] as follows:
18. The Tribunal also noted the following insert in her passport:
Bearer has previously travelled on passport number …, issued at … on 14/02/14 which has been cancelled and returned.
19. The Tribunal asked why she had returned a perfectly valid passport. She responded that she just wanted a new one. The Tribunal responded that this was strange and that while it has not inferred anything adverse from the action, her response was not helpful or informative.
The applicant told me that her former passport only had a few months to run and that is why she replaced it.
It does not appear that the issue in relation to the applicant’s former passport, if there was one, was a factor in the Tribunal’s decision. It is apparent that the Tribunal’s decision turned upon adverse credibility findings in relation to the applicant’s claims for protection. The Minister’s submissions deal with the grounds of review advanced. I agree with those submissions, and I adopt them.
Ground 1
Ground 1 contends that the Tribunal failed to consider the applicant’s claim that she was harmed in Malaysia because she was an ethnic Chinese.
This ground fails on a factual basis because the Tribunal expressly considered this claim. The Tribunal[30] expressly noted that the applicant had claimed she was victimised at school because she was an ethnic Chinese but found her claims were not genuine and had been fabricated. This was on the basis that: the applicant’s claims related only up to 1995 and she had not suffered any adverse consequences of any type for any reason that would invoke Australia’s protection obligations since then;[31] there was no independent documentary evidence to support the applicant’s claims; there was no evidence to indicate that the applicant ever sought protection in her home country or made any type of complaint to any government authority;[32] the applicant remained “a person of mystery” who was unable to substantiate any aspect of persecution at any time; the applicant’s lack of information indicated she had not been forthcoming with the Tribunal and was not a person of credit;[33] and no objective, independent documents had been provided.[34] Ultimately, the Tribunal found that the lack of any objective, independent, supportive or corroborative information and the applicant’s inability to substantiate her claims led it to find that her claims were not genuine.
[30] CB 90, [10]
[31] CB 91, [21]
[32] CB 91, [22]
[33] CB 91, [24]
[34] CB 92, [27]
Accordingly, there is no proper basis to the applicant’s contention that the Tribunal failed to consider her claim that she was harmed in Malaysia because she was an ethnic Chinese. The Tribunal plainly and extensively considered this claim but rejected it on the basis of comprehensive adverse credibility findings.
Ground 2
Ground 2 asserts that the Tribunal asked the applicant irrelevant questions, but the applicant does not identify the allegedly incorrect questions asked of her. In the absence of a transcript of the Tribunal hearing and further details, ground 2 has no evidentiary basis and cannot succeed.
In any event, on the face of the Tribunal’s decision there is no basis for the applicant’s complaint that the Tribunal asked her “irrelevant questions”. For example, the Tribunal’s decision record indicates that it questioned the applicant about: whether she had faced any harm since leaving school in 1995; the type of harm she claimed to have experienced at school; how she had supported herself during the approximate 21 years since leaving school; and her ability to depart and enter Malaysia with no adverse consequences. These matters were plainly relevant to the Tribunal’s assessment of whether the applicant satisfied the criteria for the grant of a protection visa.
Ground 3
Ground 3 contends the Tribunal misunderstood the applicant’s situation. Again, no particulars are provided and it is neither explained nor apparent how the Tribunal misunderstood the applicant’s situation, particularly in circumstances where she was unable to advance her protection claims in any detail or provide any corroborative material to satisfy the Tribunal that her claims were made out.
The Tribunal comprehensively considered the applicant’s claims and evidence but, on the basis of adverse credibility findings arising from deficiencies in the applicant’s evidence, was not satisfied she had a well-founded fear of persecution or that there was a real risk of significant harm. The Tribunal’s adverse credibility findings were open to it on the basis of: the applicant’s inability to substantiate or expand on her bare claims for protection; the lack of information, evidence or documents to demonstrate she suffered any harm in Malaysia; and the fact that she had not claimed to have faced any harm since 1995. It is well established that it is for the applicant to provide her evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction,[35] and the Tribunal is not required to make the applicant’s case for her.[36] Further, s.5AAA of the Migration Act makes it clear that it is the applicant’s responsibility to specify all particulars of her claim to be such a person to whom Australia has protection obligations and to provide sufficient evidence to establish the claim.
[35] Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 at [76]
[36] Abebe v The Commonwealth (1999) 197 CLR 510 at [187]; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 176
Further, the Tribunal did not err by proceeding on the erroneous basis that the applicant was required to substantiate or corroborate her claims before they could be accepted.[37] The lack of corroborative evidence was just one factor which led the Tribunal to reject the applicant’s claims for protection. In circumstances where the applicant provided minimal details about her claims and provided no supporting documents, the Tribunal was predictably unable to reach the requisite level of satisfaction that the applicant met the necessary visa criteria.
[37] Machmud v Minister for Immigration & Multicultural Affairs [2001] FCA 1041 at [16]
Despite Thailand not being signatory to the Refugees Convention, no arguable case of jurisdictional error is identified by the Tribunal’s reference to the applicant’s failure to seek protection in Thailand.[38] First, the applicant’s evidence was that she “only went to [Thailand] for holidays”.[39] Her failure to take some steps whilst in Thailand to avoid returning to Malaysia was probative of a lack of fear,[40] and it was not irrelevant for the Tribunal to take this into account. Secondly, the Tribunal’s findings about the applicant’s failure to seek protection when on holidays in Thailand were not expressly referable to the Refugees Convention and it was open to the Tribunal to retain a concern about the applicant’s evident failure to make any attempts to seek protection, whether by contacting human rights organisations or otherwise. Even if the Tribunal’s reference to the applicant’s failure to seek protection in Thailand was legally irrelevant (which I do not find), when this element is excised from the decision there remain extremely powerful factual findings sufficient to support the decision,[41] particularly given the applicant’s bare and unsubstantiated protection claims. The applicant was not otherwise able to point to any issue of possible jurisdictional error by the Tribunal.
[38] CB 90-91, [17], [20]
[39] CB 90, [17]
[40] AMF17 v Minister for Immigration & Anor [2018] FCCA 1848 at [70]
[41] SZKPN v Minister for Immigration & Citizenship [2008] HCASL 500 at [8]; see also: AMF17 v Minister for Immigration & Anor [2018] FCCA 1848
CONCLUSION
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001.
In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the court scale. The applicant did not wish to be heard on costs.
I therefore order that, the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 14 December 2020
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