DWD16 v Minister for Immigration

[2019] FCCA 417

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWD16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 417

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal failed to consider all claims made by the applicant – whether there was adverse information that the Administrative Appeals Tribunal was obliged to give to the applicant for comment in accordance with s.424A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 474, 476

Cases cited:

DWE16 v Minister for Immigration & Anor [2019] FCCA 418
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
SZBYR v Minister for Immigration and Citizenship (2007) HCA 26
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123

Applicant: DWD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3554 of 2016

Judgment of: Judge Emmett

Hearing date: 21 February 2019

Date of Last Submission: 21 February 2019

Delivered at: Sydney

Delivered on: 21 February 2019

REPRESENTATION

Applicant: The applicant appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Mr Andrew Keevers
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3554 of 2016

DWD16

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 second respondent dated 16 November 2016 (“the Tribunal”), which affirmed a decision of a delegate of the first respondent (“the Delegate”) to refuse the applicant a Protection (Class XA) (Subclass 866) visa (“Protection Visa”).

2. The matter was closely related to an application by the applicant’s partner, DWE16 v Minister for Immigration & Anor [2019] FCCA 418, which was also heard by me this morning. Both the applicant and DWE16 made almost identical claims for protection and attended a joint hearing and had their reviews determined by the same Tribunal Member.

3. The background and the Tribunal’s decision are accurately summarised in the written submissions of the first respondent and are as follows:

   “Background

   3. The applicant, a national of Malaysia, arrived in Australia on 19 May 2013 as the holder of a visitor visa. The visa ceased on 19 August 2013, at which time he became an unlawful non-citizen (CB 52). On 24 December 2014, he lodged an application for a protection visa (CB 1).

   4. In a statement attached to his visa application, the applicant claimed to fear harm in Malaysia on the basis of his Chinese ethnicity, Christian religion, police corruption, and a lack of confidence in the Malaysian government. According to the applicant, Chinese Malays were bullied and discriminated against, and were disadvantaged in business, entrance to university and civil service. The applicant further claimed that in 2012, he was stopped by police and given a ticket for speeding, but when he refused to pay, he and his partner were arrested and “beat” (CB 33).

   5. On 16 April 2015, the delegate refused the grant of the visa (CB 52). The applicant sought review of the delegate's decision (CB 64), and on 16 November 2016, the Tribunal affirmed the decision under review (CB 93).

   Tribunal decision

   6. The Tribunal recorded that the applicant and his partner agreed to have their cases heard together. Although asked, the applicant did not request to give evidence independently of his partner (CB 95, [10]).

   7. In relation to the speeding incident in 2012, the applicant's partner gave evidence to the Tribunal that she was not with him when he was stopped by police, which he agreed was correct. The applicant also gave evidence that he was not detained, charged or beaten by police (CB 102, [31]). The applicant gave evidence that a second incident had occurred, though he could not remember the date, in which he was stopped by police on his motorcycle because a light was out, but that he believed the real reason was to obtain a bribe (CB 98, [19]). The Tribunal accepted that the applicant had been stopped on two occasions, and also accepted that there were instances of corruption in Malaysia. However, it was not satisfied that this gave rise to a real chance of serious harm (CB 102, [33]).

   8. On the basis of country information, the Tribunal accepted that Chinese Malays might be subject to some discrimination, but found that they were able to attend school and participate in politics, and made up a high percentage of the professional and educated class. As such, it was not satisfied that the applicant had in the past suffered, or would in the future suffer, serious harm on the basis of his ethnicity (CB 98, [20]). In respect of the applicant's claim that he would not obtain a good job if returned to Malaysia, and that incomes were low and the cost of living was high, the Tribunal was not satisfied that the claimed actions of the government in this respect were for the purpose of harming anyone in Malaysia (CB 102, [35]-[36]).

   9. The decision record notes that the applicant did not “materially claim to fear harm” on the basis of his Christian religion. In any event, and based on country information which indicated that Malaysian Christians were generally able to practise their religion, the Tribunal was not satisfied that the applicant had a real chance of serious harm on this basis (CB 99, [22]).

   10. The Tribunal accepted that the applicant was not a member of any political party, had participated in two political rallies, and supported an opposition political party (CB 100, [25]-[26]). The applicant did not claim that he had ever been harmed, harassed or questioned for reasons of his political participation in Malaysia, and did not claim to have had any political engagement in Australia. The Tribunal was not satisfied that the applicant had more than a very limited engagement in politics or that he had any real interest in political affairs. As such, the Tribunal was not satisfied that he would engage in political action if returned to Malaysia, and alternatively, found that if he did, it would be the same limited engagement and he would not have a real chance of serious harm on this basis. Nor was the Tribunal satisfied that the applicant had a real chance of serious harm on the basis of any imputed political opinion (CB 100, [26]-[28]).

   11. The Tribunal considered whether the applicant would face harm on return to Malaysia as a failed asylum seeker, but having regard to country information, was not satisfied that he would (at [41]-[43]).

   12. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Malaysia for the reasons he claimed, or for any other reason (at [44]). On the basis of its anterior findings of fact, the Tribunal was not satisfied that the applicant had a real risk of suffering serious harm in Malaysia (at [48] and [51]).”

4. The applicant appeared this morning with his partner, DWE16. Neither applicant was represented, however, both were assisted by an interpreter.

5. The applicant confirmed that he attended a directions hearing before a registrar of this Court on 27 April 2017 and that, on that occasion, he had been given leave to file and serve an amended application, any further evidence and submissions in support of his application. The applicant had also been provided, on that occasion, with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.

6. The applicant confirmed that he had not filed any documents, either in accordance with those directions or otherwise and had no documents to provide to the Court this morning in support of his application. The applicant confirmed that he continued to rely on the grounds of his application which are as follows:

   “1. The Administrative Appeals Tribunal failed to consider and determine whether the applicant is a refugee for the Convention reason of his religion, or for the Convention reason of his religion and ethnicity combined, has resulted in its determination being affected by jurisdictional error.

   2. The Tribunal is affected by jurisdictional error in that it did not comply with its obligation to put adverse information relied upon for the decision to the applicant for comment.”

7. Each of the grounds was interpreted for the applicant and the applicant was invited to say whatever he wished in support of those grounds. 

8. Prior to inviting the applicant to speak to his grounds, I explained to the applicant that the role of this Court was very different to that of the Tribunal and that it was not for this Court to reconsider his claims and make different factual findings or reach different conclusions. I explained that the only issue before this Court was whether or not the decision of the Tribunal is made according to law. I explained that if the Tribunal’s findings and conclusions were open to it for the reasons it gave then the fact that the applicant may disagree with them is not sufficient to establish jurisdictional error.

Ground 1

1. Ground 1 asserts that the Tribunal failed to consider and determine whether the applicant is a refugee for the convention reason of his religion or for the Convention reason of his religion and ethnicity combined.

2. I asked the applicant what he wished to say in support of Ground 1. The applicant told the Court that he has fear and that if one has not lived where he lives, or feels his type of fear then they could not understand his position.

3. The Tribunal’s decision record makes clear that the Tribunal had regard to the applicant’s evidence and noted that the applicant’s claim was to fear harm in Malaysia for reasons of his Chinese ethnicity, Christian religion, police corruption and a lack of confidence in the Malaysian Government.

4. The Tribunal had regard to the applicant’s delay in lodging his Protection Visa application, noting that the applicant lawfully departed Malaysia on 18 May 2013 and arrived in Australian on a visitor’s visa on 19 May 2013, yet did not lodge a Protection Visa until 30 December 2014. The Tribunal raised its concerns about that delay with the applicant and noted the applicant’s response. 

5. The Tribunal considered in some detail the applicant’s claim to fear harm because of his Chinese ethnicity and identified with particularity the country information to which it had regard. The Tribunal found that ethnic Chinese in Malay may experience some discrimination, but found that they were able to attend schools, freely participate in politics, and made up a high percentage of the professional educated class.

6. The Tribunal was not satisfied that ethnic Malay persons have a real chance of suffering serious harm by reason of their ethnicity. The Tribunal noted that, even if it accepted that the applicant had been subject to some bullying, the Tribunal found that the applicant had not suffered serious harm in Malaysia in the past based on the country information before it. Having regard to that country information and the applicant’s evidence, the Tribunal was not satisfied that the applicant has a real chance of suffering serious harm in Malaysia by reason of his ethnicity.

7. The Tribunal then considered the applicant’s claim to fear harm by reason of his Christian faith. Again, the Tribunal identified with particularity country information upon which it relied. The Tribunal noted that, at the hearing, the applicant did not claim to fear harm for reason of his religion in Malaysia and the Tribunal was not satisfied that Christian Malays, without more, have a real chance of suffering serious harm in Malaysia. The Tribunal found that the applicant did not have a real chance of suffering serious harm for reason of his Christian faith in Malaysia.

8. The Tribunal then went on to consider the applicant’s claims to fear harm by reason of his political opinion. Again, the Tribunal referred to country information. The Tribunal discussed these claims with the applicant at the hearing and noted the applicant said he was not a member of any political party. The Tribunal accepted that the applicant had attended two rallies, but noted that he had not suffered past harm in Malaysia for those reasons. Ultimately, the Tribunal was not satisfied that the applicant had more than a very limited engagement in politics in Malaysia. 

9. The Tribunal was further not satisfied that the applicant has any real interest in political affairs and was therefore not satisfied that the applicant wished to engage in political action on return to Malaysia.  Based on the country information before it, the Tribunal found that the applicant would not be imputed with a political opinion in Malaysia that would give rise to a real chance he would be harmed on return and, therefore, was not satisfied that the applicant has a real chance of suffering harm in Malaysia for that reason.

10. The Tribunal then considered the applicant’s claim that, on 12 November 2012, he and DWE16 were driving on a road when police stopped them and gave them a ticket. The Tribunal noted the applicant’s claim that the applicant believed this was an effort by the police to obtain a bribe and, when he refused to pay money, the police became angry and arrested him and DWE16. The Tribunal noted the applicant’s claim that he was beaten while detained and that his mother paid money for bail for the release of himself and DWE16. The applicant also referred to another incident in which he had paid a bribe.

11. The Tribunal again identified country information to which it had regard and also noted that DWE16 had said that she was not with the applicant when he was stopped by police on 12 November 2012. The Tribunal noted that the applicant agreed that this was correct and then agreed that he had never been detained or charged by police or beaten by police. The Tribunal found the applicant’s prior claims to be false.

12. The Tribunal did accept that the applicant had a further incident that was several years earlier when on a motorcycle, but noted that the applicant had continued to live with his parents, go to his usual work, and conduct himself as normal. The Tribunal accepted that there are incidents of corruption in Malaysia and that the police may be corrupt on occasion.  Ultimately, the Tribunal accepted that the applicant had been stopped on two occasions, once on a motorcycle and once as a passenger in a friend’s car and accepted the applicant believed that a bribe may have been asked for on those occasions. 

13. The Tribunal noted that it discussed this evidence with the applicant and, based on the country information before it, was not satisfied that such incidents of corruption gave rise to a real chance that the applicant would suffer serious harm on return to Malaysia. 

14. The Tribunal also noted that when it asked the applicant what he feared in Malaysia, the applicant responded that he would not obtain a good job.  The Tribunal again identified the particular relevant country information and was ultimately not satisfied that the applicant has a real chance of suffering harm in Malaysia for that reason.

15. The Tribunal also considered whether the applicant would suffer harm as a failed asylum seeker and again, after identifying country information, concluded that he would not.

16. The Tribunal also considered whether the applicant met the complementary protection criteria under s.36(2)(aa) of the Act and concluded that he did not.

17. It is clear from the Tribunal’s findings that it rejected the applicant’s claim to be at risk of harm by reason of his religion or by reason of his ethnicity. Having made those findings, it was not necessary for the Tribunal to consider whether the applicant faced harm on the basis of his religion and ethnicity combined. I accept the first respondent’s submission that such a claim could not survive those individual findings. 

18. The Tribunal’s reasons were open to it on the material and evidence before it and for the reasons it gave. The Tribunal’s findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issues. The Tribunal’s findings were not tainted by unreasonableness or any failure to afford procedural fairness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

19. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the Tribunal failed to put adverse information to the applicant for comment.

2. I asked the applicant what was the adverse information that it was required to give him for comment. The applicant responded on more than one occasion that he had not received a letter about where to attend the hearing. The applicant was not able to expand or explain that assertion any further.

3. The first respondent’s solicitor, doing the best he could, took the Court to documents in the Court Book that showed that the applicant had been invited to attend a pre-hearing conference, that invitation having been sent to the applicant’s then migration agent. It is not clear from the documents whether or not the applicant attended that conference. However, it is not a matter that was relevant to the Tribunal’s consideration of whether or not it should affirm the decision under review.

4. To the extent that Ground 2 is alleging that the Tribunal breached s.424A of the Act in failing to give to the applicant for comment information that may be the reason or part of the reason for it affirming the decision under review, no such information was identified by the applicant. A fair reading of the Tribunal’s decision record does not suggest that there was information which formed the reason or part of the reason for the Tribunal affirming the decision under review, which was not otherwise excluded by s.424A(3) of the Act.

5. There was no other adverse information to which the Tribunal had regard which enlivened any obligation under s.424A of the Act. I accept the first respondent’s submission that the partner’s evidence that she was not with the applicant when stopped by the police for speeding in 2012 was evidence with which the applicant agreed when it was put to him by the Tribunal. That was not information that otherwise undermined the applicant’s claims.

6. It is well established that the Tribunal’s disbelief of an applicant’s evidence arising from inconsistencies therein is not “information” for the purposes of s.424A of the Act. Neither does information include the Tribunal’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship (2007) HCA 26 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).

7. Accordingly, Ground 2 is not made out.

Conclusion

1. The applicant has not identified any other error in the Tribunal’s decision record and no jurisdictional error is apparent on the face of the Tribunal’s decision record. 

2. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant, explored the claims with the applicant at a hearing and had regard to the applicant’s witness, DWE16. The Tribunal noted the applicant’s responses to matters of concern that it expressed to the applicant. The Tribunal identified the country information to which it had regard, made findings based on the evidence and material before it and which were open to it for the reasons it gave.

1. The Tribunal reached conclusions based on its findings and to which it applied the correct law. 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.

2. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision and, accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

3. Accordingly, the proceeding should be dismissed with costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  25 February 2019