Ebt17 v Minister for Immigration

[2018] FCCA 1666

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBT17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1666

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:
Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.36, 425

Cases cited:
Abebe v The Commonwealth (1999) 197 CLR 510
Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230
Applicant WAEE v Minister for Immigration [2003] FCAFC 184
CQG15 v Minister for Immigration [2016] FCAFC 146
Htun v Minister for Immigration (2001) 194 ALR 244
Minister for Immigration v Li (2013) 297 ALR 225
Minister for Immigration v Rajalingam (1999) 93 FCR 220
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
NABE v Minister for Immigration (No.2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
Perera v Minister for Immigration (1999) 92 FCR 6
Prasad v Minister for Immigration (1985) 6 FCR 155
Randhawa v Minister for Immigration (1994) 52 FCR 437
Singh v Minister for Immigration (2001) 115 FCR 1
Soltanyzand v Minister for Immigration [2001] FCA 1168

Applicant: EBT17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2820 of 2017

Judgment of: Judge Driver

Hearing date: 25 June 2018

Delivered at: Sydney

Delivered on: 25 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Evans of Mills Oakley

INTERLOCUTORY ORDERS

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, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2820 of 2017

EBT17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 15 August 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. Background facts relating to the applicant’s claims for protection and the Tribunal decision on them are set out in the Minister’s outline of submissions filed on 18 June 2018.

3. The applicant is a male citizen of Malaysia who claimed to be of Tamil ethnicity and an adherent of the Hindu religion.[1]  He arrived in Australia on 22 September 2016 on a visitor visa.[2]  On 8 November 2016, the applicant lodged a protection visa application (PVA).[3]

   [1] Court Book (CB) 16, 32

   [2] CB 21, 41

   [3] CB 1-39

4. In his PVA, the applicant claimed he was an ethnic Tamil and that his ancestors were from Tamil Nadu in India.  He claimed to fear harm on the basis that he had been discriminated against and exploited by the majority Malay community and oppressed by the Malaysian government.  He claimed he was a supporter of “INDRAF”, which was a political movement to advance the cause of ethnic Tamils. He also claimed that he participated in a “Bersih Rally” in 2016.  The applicant claimed he was arrested after the rally because of his political opinion and was threatened and tortured by the police.  The applicant claimed the police would not protect him and the ruling political party wanted to curb opposition.[4]

   [4] CB 32-33

5. The applicant claimed to feel unsafe in the “whole of Malaysia”[5] and feared harm from the police or the government upon return to Malaysia. He also claimed the police filed false cases against “us”.[6]

   [5] At CB 32

   [6] CB 33

6. In a decision dated 10 March 2017, the delegate refused to grant the applicant a protection visa.[7]  The delegate found the applicant had provided “vague information” and “no supporting evidence” in relation to his claim to be a political supporter in Malaysia or to have been charged with any offences. For these reasons, and on the basis of its assessment of independent country information, the delegate was not satisfied that the applicant was of any interest to the Malaysian authorities or anyone else in Malaysia for reasons of his political activities or any other reason.[8]

   [7] CB 78-93

   [8] CB 87

The Tribunal proceedings

1. On 5 April 2017, the applicant lodged an online application with the Tribunal to review the delegate’s decision.[9]  He gave the Tribunal a copy of the delegate’s refusal decision with his review application.[10]

   [9] At CB 98-99

   [10] CB 99; item 10(a) of the CB index

2. By a letter dated 25 July 2017 and sent by email, the applicant was invited to attend a hearing before the Tribunal on 15 August 2017.[11]  The applicant attended that hearing[12] and gave the Tribunal a copy of his passport.[13]

   [11] CB 103-105

   [12] CB 110-112

   [13] CB 113-118

3. At the Tribunal hearing the applicant made additional claims for the first time.  He claimed that he had actually attended the Bersih Rally in August 2015 and was paid to drive some people to the rally.[14]  He also claimed for the first time that he was detained and beaten by local Malay persons in Perak around October or November 2015 and that a few months prior to another rally in November 2016, he was again asked to arrange transport to the rally but the police found out about this and detained him for this reason in June 2016.[15]  In addition, the applicant told the Tribunal that he hid at his sister’s home in Penang for two to three weeks prior to departing Australia.[16]

   [14] CB 126, [23]

   [15] CB 128, [26]

   [16] CB 128, [27]

4. The applicant claimed further at the Tribunal hearing that before the May 2016 election in his home area, someone gave him approximately 100,000 ringgit to “give to the people” and that in January 2017 a policeman phoned him from Malaysia asking him to return the money.  The applicant claimed he was given this money because he was a Councillor but later said he was the secretary of the Malaysian Indian Congress (MIC).[17]

   [17] CB 129, [32]

The Tribunal’s decision

1. On 15 August 2017, the Tribunal made a decision to affirm the delegate’s decision not to grant the applicant a protection visa.[18]

   [18] CB 121-134

2. The Tribunal had regard to country information[19] concerning the treatment of Tamils in Malaysia and summarised its discussion of that country information with the applicant at the hearing.[20]  The Tribunal noted it had considered the applicant’s evidence that he had previously owned a wedding business and was allegedly a Councillor in Malaysia.[21]  Given its assessment of the country information, which indicated that Indian Malaysians were 80% Tamil and did not experience discrimination or violence on a day-to-day basis, the Tribunal was not satisfied the applicant had a real chance of suffering serious harm in Malaysia because of his Tamil ethnicity.[22]

   [19] At CB 123-124, [11]

   [20] CB 124-125, [12]-[13]

   [21] CB 125, [14]

   [22] CB 125, [15]

3. In relation to the applicant’s Hindu religion, the Tribunal had regard to country information that indicated Hindus were generally able to practice their religion without interference and did not face discrimination on a day to day basis.[23]  The Tribunal noted the applicant did not raise any claim at the hearing to fear harm on the basis of his Hindu religion[24] and, on the basis of its assessment of the independent country information, found the applicant did not face a real chance of serious harm for this reason.[25]

   [23] CB 125, [16]

   [24] At CB 125, [17]

   [25] CB 126, [18]

4. The Tribunal recorded that the applicant had claimed to be a supporter of “INDRAF” but it had been unable to find a political party with this name.[26] The Tribunal confirmed that it had found a reference in the country information to “HINDRAF or Hindu Rights Action Force” and the applicant confirmed at the hearing that this was the party that he supported.[27]

   [26] CB 126, [19]

   [27] CB 126, [19]-[20]

5. At the hearing the applicant said he participated in the Bersih rally in 2016 and that he was arrested following the rally because of political reasons.  The Tribunal noted the applicant had left Malaysia in September 2016, which was some two months before the November 2016 rally and that when it discussed this with the applicant at the hearing he then said he attended the August 2015 rally.[28]

   [28] CB 126, [21]

6. The Tribunal[29] also had regard to the applicant’s written claims about being arrested by the police after his involvement in a political movement[30] and recorded its concerns about the applicant’s evidence in relation to whether he was paid to drive people to the rally.[31]  The Tribunal also had regard to country information that indicated the 2015 Bersih rallies were generally peaceful.[32]

   [29] At CB 126, [22]

   [30] See CB 32, Q91

   [31] CB 126, [23]

   [32] CB 126-128, [23]-[24]

7. For these reasons, the Tribunal was not satisfied that the applicant was generally credible.  On the basis of its assessment of the country information and the applicant’s evidence, the Tribunal accepted that the applicant drove a bus load of people to attend the 2015 Bersih rally and that he did this because he was paid, and only for that reason.  It did not accept that anything happened to the applicant at the peaceful rally in 2015 but did accept that he was questioned when he returned to Perak in mid-September 2015, but not that he was mistreated when detained.[33]

   [33] CB 128, [25]

8. The Tribunal noted that it had discussed with the applicant at the hearing that his written claims revealed he had lived in Malaysia without any problems between September 2015 and September 2016.  The Tribunal then summarised the applicant’s claim raised for the first time at the hearing that he was beaten by local Malay persons in Perak around October or November 2015 and that a few months prior to the November 2016 rally, he was again asked to drive people to the rally but the police found out about this and he was detained by the police for this reason in June 2016.  The Tribunal considered the applicant’s explanation that he did not raise this claim before because the person who helped him complete his protection visa form said he could elaborate on his claims at the hearing but noted the applicant’s PVA form[34]  indicated that he had not had any assistance completing it.[35]

   [34] See: CB 10, question 6

   [35] CB 128, [26]

9. The Tribunal also considered the applicant’s new claim that he hid at his sister’s home in Penang for two to three weeks prior to departing Australia.  It expressly noted that it had discussed with the applicant that his answer to question 93 of his PVA,[36] which asked whether the applicant had moved to any other part of his country, was that: “the Government of Malaysia the one instigating the police to file false cases against opposition especially ethnic Tamil minority feel unsafe in whole of Malaysia and left it”.[37]  The Tribunal was satisfied the applicant was provided with ample opportunity to put his case in full in the PVA form.[38]

   [36] At CB 35

   [37] CB 32

   [38] CB 128, [27]

10. The Tribunal also noted that it had discussed with the applicant why he had not raised the above claims earlier and the applicant repeated that it was the fault of the person who helped him complete his form.  However, the Tribunal considered the applicant would not have left out important claims from his PVA if they were true.  Accordingly, the Tribunal rejected these new claims and did not accept that he was harmed at any other time prior to departing Malaysia.[39]

    [39] CB 128, [28]

11. On the basis of all of its findings, the Tribunal was not satisfied that the applicant had a real chance of serious harm on the basis of his political opinion.[40]  Further, on the basis of its finding that the applicant did not have any political engagement after August 2015, and due to his lack of knowledge about the political parties he claimed to support, it was also satisfied that the applicant would not wish to engage in any political activity (or that he would face harm for this reason) if he returned to Malaysia.[41]

    [40] CB 129, [29]

    [41] CB 129, [30]-[31]

12. The Tribunal also considered the applicant’s other new claims raised at the hearing that before the May 2016 election in his home area, someone gave him approximately 100,000 ringgit to “give to the people” and that in January 2017 a policeman phoned him from Malaysia asking him to return the money.[42] The Tribunal[43]  raised its concerns with the applicant about these new claims at the hearing. The applicant again explained that he was told not to write everything in his PVA and that his children told him not to get involved. Having considered all of the applicant’s claims, the Tribunal was not satisfied that the applicant was a truthful witness and did not accept any of his new claims.[44] It followed that the Tribunal also did not accept that he would face harm for any of these reasons.[45]

    [42] CB 129, [32]

    [43] At CB 129, [33]

    [44] CB 129, [34]

    [45] CB 129, [35]

13. The Tribunal then considered the applicant’s claim to fear harm as a failed asylum seeker.[46] However, the Tribunal did not accept the applicant had any type of profile that would cause him to have a real chance of suffering harm in Malaysia[47]  and did not accept he would face harm as a failed asylum seeker.[48] In support, the Tribunal relied on its assessment of country information that indicated failed asylum seekers would be unlikely to face adverse attention as the Malaysian government would not typically know that the individual returning was a failed asylum seeker.

    [46] [36]

    [47] At CB 129, [36]-[37]

    [48] CB 130, [38]

14. Having considered the applicant’s claims cumulatively, the Tribunal was ultimately not satisfied that the applicant met the criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act).[49]

    [49] CB 130, [39]-[40]

15. As “real risk” and “real chance” involved the application of the same standard, the Tribunal was also not satisfied that the applicant would face a real risk of significant harm for the reasons claimed and found he did not meet the criterion in s.36(2)(aa) of the Migration Act.[50]

    [50] CB 130, [42]-[45]

The current proceedings

1. These proceedings began with a show cause application filed on 12 September 2017. 

2. The applicant now relies upon an amended application filed on 6 June 2018.  The grounds in the application are set out in part in the body of the application and in part in an attachment to it as follows:

   1.There were several interpretation errors in the deposition of the applicant before the Tribunal and this resulted in miscarriage of justice and has vitiated the procedural fairness.

   Particulars

   In Para 23 the Tribunal states that “He then said that he was asked to drive some persons to Bersih rally in 2015 .. He initially said he was paid to do this but when it was put to him that the Tribunal may consider whether he only did this to get paid, the applicant changed his claim to say that he was not paid. He then said that he drove persons to the August 2015 rally in Kula Lumpur.”  The applicant states that he never deposed that he was paid for the work. All that the applicant said was that the organisers of the protest paid for the transport of the people and he just mobilised the people for the Bersih rally.

   In para 25 the Tribunal states that “I accept the applicant drove a bus load of persons from his home region ------.I accept that he did this as he was paid (and only for that reason”. This observation is erroneous and not based on facts, as the applicant does not have any bus driving licence and never deposed that that he drove a bus. Further the applicant never said that he was paid for transport of people to the rally. The applicant only said and he organised people for the rally and the organisers paid for the transport of the people to the bus owners

   2.The Tribunal made jurisdictional error in that it was unreasonable in making adverse credibility findings recklessly without a sound basis by not considering all the information on record available at the time of review before it.

   Particulars

   In para 25 the Tribunal state that “the Tribunal was not satisfied the applicant was generally credible. That being said I accept the applicant drove a bus load of persons from his home to region ------. I accept that he did this as he was paid (and only for that reason”. This observation is erroneous as the applicant does not have any bus driving licence and never deposed that that he drove a bus. Further the applicant never said that he was paid for transport of people to the rally. The applicant only said and he organised people for the rally and the organisers paid for the transport of the people to the bus owners

   Further the Tribunal failed to consider all evidence on record and merely confirmed the delegate findings, on the ground of adverse credibility findings as some of these facts were not revealed before the delegate. The Tribunal did not adhere to the principles laid down in in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 at [61] wherein Sackville J observed that evidence by the protection visa applicant may be “given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision maker/investigator” and noted that “even applicants with a genuine fear of prosecution may not present as models of consistency or transparent veracity”. It is submitted that while assessing applicant’s creditability Tribunal did not have due regard to these aspects in the present case

   3.The Tribunal failed to consider the correct social group to which the applicant belongs namely being an (i) ethnic Indian of Tamil origin (ii) Hindu, middle aged male (iii) Falsely implicated in criminal cases by corrupt police (iv) failure of state to protect him against ruling party atrocities (v) failed asylum seeker who returns to Malaysia after criticising that the ruling Government and police in Malaysia are ineffective and corrupt

   Particulars

   The Tribunal and the delegate failed to consider the correct social group (PSG) to which the applicant belongs. They have considered only some of the characteristics of the social group but failed to consider the other aspects of the particular social group like failed asylum seeker who had blamed the Government and police of callousness and corrupt practice.

   4.The Tribunal failed to give reasons as required when it stated:

   "25. For all the reasons set out herein, the Tribunal was not satisfied the applicant was generally credible".

   Particulars

   1.     The failure to give and/or particularise the reasons why the Tribunal was not satisfied the applicant was generally credible, means the applicant cannot understand or challenge the basis of this decision,

   2.     Further, the claims were not generally subject to criticism by the Tribunal and accordingly no significant findings of credit were made against him so as to substantiate the Tribunal's conclusion.

   3.     The finding that the applicant was not generally credible was critical to the decision by the Tribunal to reject his application before the AAT.

   Such failure amounting to an error of law

   5.The Tribunal failed to understand the history of the case when it stated:

   "32...... When asked why this had not been stated previously, the applicant repeated that which is referred to above".

   Particulars

   The Tribunal failed to comprehend that

   1.     the Applicant Filed an application and statement in support for a SHEV visa, on 8 November 2016

   2.     the claimed phone call was made in January/February 2017

   3.     the Delegate made his decision on 10 March 2017 without the applicant having been interviewed after January/ February 2017 and before 10 March 2017.

   Accordingly there was no opportunity for the applicant to have stated/ advised the government Department of the occurrence of the phone call before the AAT hearing,

   Such failure evidencing a misunderstanding of the matter and the Tribunal asking the wrong question, which affected the hearing and amounting to an error of law

   6.The Tribunal failed to give reasons and/or particularise the reasons why the Tribunal was ultimately satisfied the applicant was not a truthful witness as required when it stated:

   "34. After considering all his claims, the Tribunal was ultimately satisfied the applicant was not a truthful witness."

   Such failure amounting to an error of law.

   Particulars

   1.     The applicant's claims were not generally subject to criticism by the Tribunal and accordingly no significant findings of credit were made against him so as to substantiate the Tribunal's conclusion.

   2.     The finding that the applicant was not a truthful witness was critical to the decision by the Tribunal to reject as false the applicant being asked about ringgit 100,000 and to the decision to reject as false all his other new claims and to reject his application before the AAT.

   (errors in original)

1. The other peculiarity about the amended application is that in it the applicant asserts that he has not retained a lawyer to represent him. He states that he proposes to seek legal advice. The applicant told me today that, in fact, the amended application was prepared by a person he describes as a lawyer. There is, however, no legal practitioner on the record in these proceedings. It is apparent that the application has been prepared by someone with some passing familiarity with legal proceedings.

2. The application is supported by an affidavit filed with the original show cause application which I received as a submission. 

3. I have before me as evidence the court book filed on 14 November 2017. 

4. I invited oral submissions from the applicant this afternoon.  He focused his attention on the first ground in the attachment to the amended application.  While that ground asserts interpretation errors at the Tribunal hearing, the applicant put the problem differently.  He now says that there were no interpretation problems at the hearing but that rather, the Tribunal misunderstood the oral evidence as reflected in its reasons.  I asked the applicant whether he had any evidence to present to support that assertion.  He has not provided a transcript of the Tribunal hearing, although he signed an information sheet at the first court date directions that invited him to do so.  Order 3 made by Registrar Cho on 16 October 2017 specifically alerted the applicant to that possibility.

5. The applicant told me that the asserted problem was apparent from listening to the sound recording of the Tribunal hearing.  The applicant told me that he had the CD of that sound recording but he had left it at home.  When I expressed some surprise, he told me that he had assumed that the Court would have a copy of the sound recording. 

6. The applicant sought more time in order to produce a sound recording or a transcript.  I declined that request.  In my view, the applicant has had ample time in order to provide evidence in support of his grounds. 

7. The issue arises in relation to the Tribunal’s reasons from [23] to [26].  Those paragraphs reflect changeability in the applicant’s evidence.  The Tribunal records the applicant as having first claimed to have been paid to drive a bus, and then denying that he was paid.  Later, the applicant asserted that he was asked to arrange for two busloads of persons to be driven to a later political rally. The applicant now asserts that he was not paid to drive any bus and, moreover, cannot drive a bus.  In my view, it is more likely than not that the Tribunal understood what was said at the Tribunal hearing and reflected that understanding in its reasons. 

8. In his submissions in reply, the applicant made two complaints.  The first was that he was not treated fairly in today’s hearing because after he presented his oral submissions, he was required to wait for the Minister’s solicitor to present her submissions before given an opportunity to respond.  I explained to the applicant that I did not permit him to disrupt the submissions of the Minister’s solicitor.  In my opinion, and as I put to the applicant, the complaint is nothing more than a tactical ploy.

9. The applicant then complained that he was not allowed to speak at the Tribunal hearing and was told to say “yes” or “no”. On the basis of the material before me, there is no viable argument that the applicant was denied a fair hearing opportunity under s.425 of the Migration Act.

10. In other respects, I agree with the Minister’s submissions concerning the grounds of review.  The grounds in the application can be summarised as raising five issues which are addressed in the Minister’s submissions.

Issue 1

1. The amended application alleges that there were “several interpretation errors in the deposition of the applicant before the Tribunal” which resulted in a denial of procedural fairness to the applicant. The particulars in support of this contention take issue with the Tribunal’s consideration of the applicant’s evidence[51] in relation to the claim he raised at the hearing that he was paid to drive people to the Bersih Rally in 2015. The applicant contends that contrary to what was recorded in the Tribunal’s decision record,[52] he never claimed he was paid to drive people and instead said the organisers of the protest paid for transport and the applicant simply mobilised people. In relation to the Tribunal’s finding[53] that the applicant did drive “a bus load of” people to the protest but only did it because he was paid, the applicant contends this observation is “erroneous” because he did not have a bus driving licence, did not say he drove a bus and never said he was paid to transport people to the rally.

   [51] At CB 126, [23] and CB 128, [25]

   [52] At CB 126, [23]

   [53] At CB 128, [25]

2. The applicant has not filed any evidence, such as a transcript of the Tribunal hearing, to support his contention that there were issues with the interpretation of his evidence at the hearing or the Tribunal’s understanding of it.  Nor does the Tribunal’s decision record reveal that at any point during the hearing the applicant made a complaint about the standard of interpretation.  In the absence of any evidence, this complaint cannot succeed.

3. To establish that the applicant was denied a fair hearing because of interpretation problems, he must show that the errors made in interpretation at the Tribunal hearing were material to the conclusion of the Tribunal and adverse to the applicant.[54]  The Tribunal[55] accepted the applicant’s claim that he drove people to the rally in 2015, which cannot be said to be a conclusion adverse to the applicant.  The Tribunal’s decision record[56] reveals the applicant said he was paid to drive people to the rally in 2015 but then, when the Tribunal put him on notice that this evidence may lead it to consider that he only did this to get paid, he changed his evidence to say that he was not paid.

   [54] Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [17]; Singh v Minister for Immigration (2001) 115 FCR 1; Perera v Minister for Immigration (1999) 92 FCR 6; Soltanyzand v Minister for Immigration [2001] FCA 1168

   [55] At CB 128, [25]

   [56] At CB 126, [23]

4. The Tribunal’s finding[57] that the applicant only drove people to the rally because he was paid, and only because he was paid, had a logical and cogent basis,[58] as the decision record reveals he changed his claim in response to the potential concern the Tribunal identified with his evidence.  Accordingly, this ground cannot be made out.

   [57] At CB 128, [25]

   [58] Minister for Immigration v Li (2013) 297 ALR 225 at [28]

Issue 2

1. The applicant contends that it was unreasonable for the Tribunal to make adverse credibility findings “without a sound basis” as it had not considered all of the information before it.  The particulars repeat the applicant’s complaints in the particulars to ground 1 in relation to the Tribunal’s findings.[59]  The particulars also complain that the Tribunal failed to consider “all evidence on record and merely confirmed the delegate findings” and alleges the Tribunal failed to comply with the principles in Minister for Immigration v Rajalingam.[60]

   [59] At CB 128, [25]

   [60] (1999) 93 FCR 220 at [61]

2. Although the applicant alleges the Tribunal did not consider all of his claims and evidence, he has not even identified what claims or evidence the Tribunal allegedly failed to consider.  If the applicant seeks to contend that the Tribunal did not consider his evidence about whether or not he was paid to drive people to the rally, then this ground cannot be made out.  The applicant’s contentions are unsupported by any evidence and are plainly contrary to the Tribunal’s express consideration of the applicant’s evidence,[61] which provided a cogent basis for concluding that he only drove people to the rally because he was being paid.[62]

   [61] At CB 126, [23]

   [62] CB 128, [25]

3. If by this ground the applicant now seeks to explain the identified inconsistencies in his evidence at the hearing,[63] then this attempt constitutes merits review, which the Court cannot undertake.[64]  The Tribunal was not required to make the applicant’s case for him.[65]  The Tribunal’s decision record reveals that the applicant was provided with an opportunity to provide evidence about whether or not he was paid and the Tribunal’s decision record does not indicate he sought to explain that he was confused. Further, there is nothing to indicate that the Tribunal failed to observe the principles in Rajalingam.

   [63] At CB 126, [23]

   [64] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

   [65] Abebe v The Commonwealth (1999) 197 CLR 510 at [187]; Prasad v Minister for Immigration (1985) 6 FCR 155 at 176

4. Further, the Tribunal’s credibility findings do not expose a potential basis of challenge on well established legal precedent such as: lacking any logical or probative basis; illogicality/ irrationality; a failure to afford procedural fairness; or misunderstanding relevant material before it resulting in a decision for which the Tribunal had neither authority nor jurisdiction under the Migration Act.[66]  The Tribunal was under no obligation to uncritically accept any and all allegations made by the applicant.[67]   Accordingly, this ground cannot be made out.

   [66] CQG15 v Minister for Immigration [2016] FCAFC 146 at [37]-[38] (McKerracher, Griffiths and Rangiah JJ)

   [67] Randhawa v Minister for Immigration (1994) 52 FCR 437

Issue 3

1. The applicant alleges the Tribunal failed to consider “the correct social group to which the applicant belongs” and lists those groups as being: ethnic Indian of Tamil origin; Hindu, middle-aged male; falsely implicated in criminal cases by corrupt police; failure of state to protect him against “ruling party atrocities”; and a failed asylum seeker who returns to Malaysia after criticising the government.  The particulars in support of this ground do not provide any additional clarification about this complaint or clarify how the applicant contends that the “groups” he has identified are particular social groups.

2. In short, the applicant did not expressly claim that he feared harm due to his membership of the particular social groups that he now identifies in ground three and such a claim also did not clearly arise on the available materials and the Tribunal was not required to consider a claim that was not made.[68] The applicant made no claims to fear harm due to his membership of the other “particular social groups” he now seeks to advance (to the extent that they could even be said to satisfy the component requirements of a particular social group). 

   [68] NABE v Minister for Immigration (No.2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27; Applicant WAEE v Minister for Immigration [2003] FCAFC 184; Htun v Minister for Immigration (2001) 194 ALR 244 at 259 [42].

3. In any event, Tribunal plainly considered the applicant’s claims to fear harm as an ethnic Indian of Tamil origin, [69] as a Hindu,[70] and as a failed asylum seeker.[71]  The Tribunal also considered the applicant’s claim that the police “file false cases against opposition especially ethnic Tamil minority” and that the police and government would not protect him.[72]

   [69] At CB 123-125, [10]-[15]

   [70] CB 125-126, [16]-[18]

   [71] CB 130, [36]

   [72] CB 126, [22]

Issue 4

1. The applicant complains that the Tribunal “failed to give reasons”. Reference is made to the Tribunal’s findings[73] that the applicant “was not generally credible”. The particulars also allege that the Tribunal did not give reasons for why the applicant was not generally credible, his claims were not “generally subject to criticism” and no “significant findings of credit were made against him to substantiate the Tribunal’s conclusion”. This issue echoes the complaints already made in issue two that the Tribunal made adverse credibility findings[74] “without sound basis”.

   [73] At CB 128, [25]

   [74] At [25]

2. The Tribunal[75] concluded that “for the reasons set out herein” the applicant was “not generally credible” and found that: the applicant drove people to the Bersih rally as claimed but he only did that because he was paid; nothing happened to him at the peaceful August 2015 rally; and he was questioned on his return to Perak but not that he was mistreated as claimed.  Despite the applicant’s contentions, the reference[76] to “the reasons set out herein” is clearly a reference to all of the Tribunal’s adverse credibility findings and reasons, which were based on its consideration of the applicant’s evidence and included:

   a)that the applicant had claimed for the first time at the hearing that he was paid to drive people to the Bersih rally[77] but when the Tribunal put to him that it may consider he only did this to get paid, he changed his evidence to say he did not get paid;

   b)independent country information[78] that indicated the 2015 rallies in which the applicant claimed he participated were generally peaceful; and

   c)the applicant’s written claims indicated that he had lived in Malaysia without problems between September 2015 and September 2016 but he raised for the first time at the hearing that he was detained in November 2015,[79] and the Tribunal found the applicant would not have left such a significant claim out of his PVA if it was true.[80]

   [75] At CB 128, [25]

   [76] At CB 128, [25]

   [77] At CB 127, [23]

   [78] At CB 127, [23]

   [79] CB 128, [26]

   [80] CB 128, [28]

3. Accordingly, despite the applicant’s contentions, the Tribunal’s consideration of the applicant’s evidence and its findings provided a sound basis for it to reject the credibility of his claims and this ground cannot be made out.

Issue 5

1. The applicant complains that the Tribunal “failed to understand the history of the case”, and refers to the Tribunal’s decision.[81]  Specifically, the applicant challenges the Tribunal’s reasoning in relation to his claim that he received a phone call in January/February 2017 from a policeman in Malaysia asking him to return the money he had been accused of taking.  The applicant contends the delegate’s decision was made on 10 March 2017 “without the applicant having been interviewed” and there was no opportunity for him to tell the Minister’s Department of the phone call before the Tribunal hearing.

   [81] At CB 129, [32]

2. The applicant was notified by way of a letter dated 10 November 2016 that the Minister’s Department had received his valid application for a protection visa and that letter, amongst other things, informed the applicant that: “Any information received before the decision is made will be considered”.[82] On this basis, and contrary to the applicant’s contentions: he was not denied an opportunity to tell the Minister’s Department about the claimed phone call in January/February 2017 before the delegate made its decision in March 2017; and nothing prevented him from writing to the Minister’s Department to notify them of this event and advance any updated claims he wished to make and he was on notice of the importance of providing all of his claims to the Minister’s Department (in his PVA form) and there was nothing preventing him from providing this additional written claim at a later stage.

   [82] CB 60-65

3. The applicant was further notified, by way of the delegate’s decision, that the delegate considered he had provided “vague information and no supporting evidence to support his claim that he was a political supporter in Malaysia or that he had been charged with any offences”.[83]  Accordingly, the applicant was on notice since the date of the delegate’s decision that he had not provided sufficient detail or evidence to enable a decision maker to be satisfied of his claims.

   [83] CB 86

4. In a letter dated 8 April 2017, the Tribunal also informed the applicant that it had received his application for review and informed him that if he wished “to provide material or written arguments for us to consider, you should do so as soon as possible”.[84]  Despite this additional notice, the applicant did not seek to advance his claim at any time after lodging his application for review (on 5 April 2017) and before the Tribunal hearing (on 15 August 2017).

   [84] CB 101-102

5. Insofar as the applicant seeks to allege “unreasonableness” or “illogicality” in relation to the Tribunal’s findings, “unreasonableness” arises where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it, or where a decision has been made that lacks an “evident and intelligible justification”.[85]  In light of the above, there was nothing unreasonable in the Tribunal’s conclusion that the applicant’s new claims were not credible as they were important claims that had not been raised previously (in circumstances where there was nothing preventing him from informing the Minister’s Department about them before the delegate’s decision was made).[86]

   [85] Li

   [86] CB 129, [33]

6. Further, when considered contextually, the applicant’s new claim[87] was not solely in relation to the January/February 2017 phone call. The Tribunal identified, relatedly, that the applicant had also previously failed to raise that he was given 100,000 ringgit to “give to the people” and was a Councillor in Perak. The applicant claims that it was this money the policeman subsequently called him about in 2017. After summarising all of these new claims, not just the alleged phone call, the Tribunal noted it had asked the applicant “why this had not been stated previously”. Notably, the applicant’s answer in his PVA to his employment history[88] indicates that he was unemployed between January 2015 and September 2016, which included the time during which he subsequently claimed to be a Councillor and have received the money (in May 2016).

   [87] At CB 129, [32]

   [88] At question 84

7. These and other concerns identified by the Tribunal provide a proper and rational context for its conclusion that the applicant’s new claims were not credible. Accordingly, any allegation of unreasonableness cannot be maintained.

Conclusion

1. 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 pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant continued to contest the issue which he says arises from the sound recording of the Tribunal hearing.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       2 July 2018