Dwe16 v Minister for Immigration

[2019] FCCA 418

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWE16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 418

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal was biased – whether the Administrative Appeals Tribunal failed to consider any claims made by the applicant – whether Administrative Appeals Tribunal’s findings were open to it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 91R, 474, 476

Cases cited:

DWD16 v Minister for Immigration & Anor [2019] FCCA 417
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507

Applicant: DWE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3555 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 3555 of 2016

DWE16

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, DWD16 v Minister for Immigration & Anor [2019] FCCA 417, which was also heard by me this morning. The applicant and DWD16 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, which ceased on 19 August 2013, at which time she became an unlawful non-citizen (CB 52). On 24 December 2014, she lodged an application for a protection visa (CB 3).

   4. In a statement attached to her visa application, the applicant claimed to fear harm in Malaysia on the basis of her 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, she and her partner were stopped by police and her partner, who was driving, was given a ticket for speeding, but when he refused to pay, he and the applicant 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 63), and on 16 November 2016, the Tribunal affirmed the decision under review.

   Tribunal decision

   6. The Tribunal recorded that the applicant and her partner agreed to have their cases heard together. Although asked, the applicant did not request to give evidence independently of her partner (CB 94, [10]).

   7. 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 her ethnicity (CB 97, [18]-[19]). In respect of the applicant's claim that she 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 101, [33]-[34]).

   8. At the hearing, the applicant conceded she had not experienced forced conversion and did not “materially claim to fear harm” on the basis of her Christian religion. In any event, and having regard to 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 97, [20]-[21]).

   9. The Tribunal noted the applicant was not a member of any political party, accepted she had participated in two political rallies, but noted that she did not claim to have ever been harmed, harassed or questioned for reasons of her political participation in Malaysia, or 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 she had any real interest in political affairs. As such, the Tribunal was not satisfied that she would engage in political action if returned to Malaysia, or alternatively, if she did, it would be the same limited engagement and she 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 99, [25]-[27]).

   10. In relation to the speeding incident in 2012, the Tribunal had regard to the applicant's oral evidence that she was not with her partner at any time when he had been stopped by police, and that they had never been beaten by the police. On the partners evidence, the Tribunal accepted that he had been stopped by police on two occasions and that a bribe may have been asked for. However, on the basis of country information, it was not satisfied that such instances of corruption gave rise to a real chance of serious harm (CB 100, [29]-[31]).

   11. The Tribunal considered whether the applicant would face harm on return to Malaysia as a failed asylum seeker, but based on country information, was not satisfied that she would (CB 102, [41]).

   12. In light of the above, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution in Malaysia for the reasons she claimed, or for any other reason (CB 102, [42]). 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 (CB 103, [47]-[49]).”

4. The applicant appeared this morning with DWD16. Neither applicant was represented, however, both were assisted by an interpreter.

5. The applicant confirmed that she attended a directions hearing before a registrar of this Court on 27 April 2017 and that, on that occasion, she had been given leave to file and serve an amended application, any further evidence and submissions in support of her 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 her own language.

6. The applicant confirmed that she relied on the grounds of her application filed on 14 December 2016, which are as follows:

   “1. The Administrative Appeals Tribunal had bias against me and did not consider my application in accordance with S91R of the Migration Act 1958. The Tribunal failed to consider my claims.

   2. The Tribunal applied the wrong test in making the decision.”

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

8. Prior to inviting the applicant to speak to her 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 her 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 was biased, did not consider her application in accordance with s.91R of the Act and failed to consider her claims.

2. I asked the applicant what claims the Tribunal had failed to consider. The applicant responded that she did not know. I asked the applicant in what way the Tribunal had been biased against her, and she answered that there was no bias.

3. I asked her in what way the Tribunal had not considered her claim in accordance with the Act and whether she wished to have s.91R of the Act interpreted for her. She responded that it was not necessary to translate and she had nothing further to say in relation to that ground.

4. The Tribunal’s decision record made clear that the applicant claimed to fear harm in Malaysia for reasons of her Chinese ethnicity, her Christian religion, police corruption and her lack of confidence in the Malaysian Government.

5. The Tribunal first considered the applicant’s delay in seeking protection, noting that the applicant arrived in Australia on a visitor visa on 19 May 2013, yet applied for a protection visa on 24 December 2014. The Tribunal explored that delay with the applicant and noted her responses.

6. The Tribunal then proceeded to consider the applicant’s claims individually. The Tribunal considered the applicant’s claim to fear harm by reason of her Chinese ethnicity. The Tribunal identified with particularity the country information that it had regard to in rejecting that claim. The Tribunal noted that it discussed the country information with the applicant and invited her to comment.

7. The Tribunal noted that it put to the applicant that it accepted that ethnic Chinese Malay citizens may be subject to some discrimination in Malaysia, although country information did not suggest that the applicant had a real chance of suffering serious harm in Malaysia for that reason.

8. The Tribunal then considered whether the applicant would suffer harm by reason of her Christian religion and, again after identifying particular country information, concluded that there was nothing that, including country information, the applicant had said to satisfy the Tribunal that the applicant had a real chance of suffering harm for reason for her Christian faith.

9. The Tribunal then considered the applicant’s claim to fear harm by reason of her political opinion or imputed political opinion. The Tribunal noted that the applicant was not a member of any political party. The Tribunal noted in discussions that the applicant agreed she had engaged in political activities on two occasions in Malaysia on dates of which she was uncertain. The Tribunal noted that the applicant did not claim to have suffered harm for that reason and the Tribunal found that the applicant had no more than a very limited engagement or interest in politics in Malaysia and was not satisfied that there was a real risk of suffering serious harm in Malaysia for that reason.

10. The Tribunal also considered an incident on 12 November 2012 in which the applicant said she and DWD16 were driving on a road when police stopped and gave DWD16 a ticket. She said when DWD16 refused to pay the police a bribe, they became angry and both the applicant and the DWD16 were arrested and subsequently released when the DWD16’s mother paid money for bail.

11. The Tribunal accepted that there were incidents of corruption in Malaysia. However, based on country information before it, which again it identified, was not satisfied that such incidents of corruption gave rise to a real chance that the applicant would suffer serious harm if returned to Malaysia.

12. The applicant also raised at the hearing concerns that she would not be able to obtain a good job and that more government assistance should be provided to people of Malaysia. The Tribunal referred to country information that did not indicate that the Chinese applicant would be denied all good jobs in Malaysia and did not accept that the applicant faced a real chance of suffering harm by reason of the government’s failure to provide more benefits.

13. The Tribunal then considered whether the applicant was at risk of harm as a failed asylum seeker if returned to Malaysia and concluded that she was not. The Tribunal also considered whether the applicant met the complementary protection criteria under s.36(2)(aa) of the Act and concluded that she did not.

14. 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).

15. A claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).

16. The applicant had been directed at the directions hearing on 27 April 2017 to file any further evidence, including any transcript of the hearing, or to give notice if the applicant wished to rely on a tape recording of the Tribunal hearing. No document was filed by the applicant either in accordance with those directions or otherwise, and in the circumstances the Court is entitled to accept that the Tribunal’s decision record accurately reflects the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

17. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal, in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented” or that it approached its task other than with a mind open to persuasion (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127] per Gleeson CJ and Gummow J).

18. The applicant’s second allegation in Ground 1 that the Tribunal did not consider her application in accordance with s.91R of the Act was unsupported by particulars, evidence or submissions. It was a matter for the Tribunal to consider the evidence before it and to determine whether or not the harm claimed amounted to serious harm.

19. The Tribunal’s decision record makes clear that it had regard to the applicant’s evidence and was not satisfied that the applicant faced a real chance of serious harm for the reasons claimed. As stated above, those findings were open to the Tribunal for the reasons it gave and on the evidence and material before it.

20. Ground 1 also makes the bear assertion that the Tribunal failed to consider her claims. Again, that assertion was not supported by particulars, evidence or oral or written submissions. As stated above, when asked what claims the Tribunal failed to consider, the applicant answered that she did not know. A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered all of the claims made by the applicant and its rejection of those claims does not demonstrate jurisdictional error on the part of the Tribunal. As stated above, those findings were open to the Tribunal and were not without an intelligible justification.

21. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 makes the bare assertions that the Tribunal applied the wrong test in making its decision. Ground 2 was not supported by particulars, evidence or oral or written submissions.

2. I asked the applicant what was the wrong test that she alleged the Tribunal applied. The applicant simply responded that she had nothing to say.

3. The Tribunal’s decision record discloses that the Tribunal correctly identified the criteria for a protection visa and the mandatory considerations to which it must have regard in its assessment as to whether or not the applicant satisfied the protection criteria of s.36(2)(a) or section 36(2)(aa) of the Act.

4. 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. 

5. 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, DWD16. 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. The Tribunal reached conclusions based on its findings and to which it applied the correct law.

6. 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.

7. 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.

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

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  25 February 2019