EDI16 and Anor v Minister for Immigration and Anor
[2020] FCCA 1990
•22 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDI16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1990 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protections visas – whether the Tribunal failed to consider an independent claim that the applicants faced persecution as Chinese Malaysians – whether the Tribunal misunderstood the test of persecution. |
| Legislation: Migration Act 1958 (Cth), ss.5J(6), 424A, 425, 438 |
| Cases cited: EDI16 & Anor v Minister for Immigration & Anor [2019] FCCA 2416 EDI16 & Anor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 171 Minister for Immigration and Border Protection v Ly (2018) 263 FCR 512; [2018] FCAFC 123 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515; [2006] HCA 63 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZTJF (2015) 149 ALD 552; [2015] FCA 1052 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559; [2004] FCAFC 82 |
| First Applicant: | EDI16 |
| Second Applicant: | EDJ16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 2831 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 18 May 2020 |
| Date of last submission: | 1 June 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 22 July 2020 |
REPRESENTATION
| Advocate for the applicants: | In person, until 1 June 2020, when written submissions prepared by Julie Zhou were filed on behalf of the applicants |
| Solicitors for the applicants: | In person until 29 June 2020, when VSTAR Lawyers filed a notice of appearance for the applicants. |
| Counsel for the first respondent: | Nick Wood |
| Counsel for the second respondent | No appearance |
| Solicitors for the respondents: | Mills Oakley Lawyers Pty Ltd |
ORDERS
The decision of the Administrative Appeals Tribunal made on 28 November 2016 in matter number 1510871 be set aside.
The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG2831 of 2016
| EDI16 |
First Applicant
And
| EDJ16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.
The application was determined by another judge of this court in EDI16 & Anor v Minister for Immigration & Anor [2019] FCCA 2416. However, on appeal, the Federal Court set that judgment aside in EDI16 & Anor v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 171. The error was that, due to an oversight, this court failed to have regard to the post-hearing written submissions filed by the applicants.
The first judge had invited post-hearing written submissions on:
a)whether certain country information should have been put to the applicants under s.424A of the Migration Act 1958 (“the Act”);
b)whether Minister for Immigration and Border Protection v Ly (2018) 263 FCR 512; [2018] FCAFC 123 had any bearing on the present matter; and
c)whether the Tribunal considered the claim that the applicants would suffer harm as ethnic Chinese Malaysians.
At the hearing before me on 18 May 2020, the applicants were unrepresented. At that point, the applicants relied on:
a)the application filed on 28 December 2016;
b)an affidavit affirmed by the second applicant on 28 December 2018, which asserted without particulars that the Tribunal had denied the applicants procedural fairness and attached a copy of the Tribunal’s decision;
c)the court book filed by the Minister on 26 July 2017; and
d)the applicants’ written submissions, which were signed by a lawyer and filed on 1 October 2018 (shortly after the hearing before the first judge).
Although they had been permitted to do so, the applicants did not file any other written submissions prior to the hearing before me on 18 May 2020.
At the hearing on 18 May 2020, the Minister relied on:
a)the court book;
b)the affidavit affirmed by Aaron Michael Day on 16 April 2018, regarding a notification under s.438 of the Act;
c)the Minister’s written submissions filed on 20 August 2018 (prior to the hearing before the first judge);
d)his supplementary written submissions filed on 17 September 2018 (shortly after the hearing before the first judge); and
e)his written submissions filed on 1 May 2020 (shortly prior to the hearing before me).
At the hearing before me, I raised additional issues that the parties had not addressed. The parties were given leave to file written submissions on the additional points. The Minister filed written submissions dated 25 May 2020 and an affidavit affirmed by Coenraad Henry van der Westhuizen on 25 May 2020. The applicants filed written submissions on 1 June 2020 which were prepared by a barrister.
The Minister had not been granted leave to file the affidavit of Mr van der Westhuizen. The applicants opposed the Minister being granted that leave. The matter was listed for directions in relation to the question of leave on 29 June 2020. Leave was granted.
The applicants’ claims
The Minister’s submissions filed on 20 August 2018 summarised the applicants’ claims as follows:
2.The applicants applied for Protection (Class XA) visas on 9 December 20142. The first named applicant (the applicant) and second named applicant are husband and wife. The second named applicant is a member of the family unit and did not make separate claims for protection. Both applicants are citizens of Malaysia.
3.The applicant claimed that he was discriminated against by members of the [X] Gang as he was ethnically Chinese and owned a restaurant that served pork. He claimed that gang members told him to close his restaurant, and that his restaurant was vandalised … The applicant claimed that he was also threatened in his home.
4.The applicant claimed that if he returned to Malaysia he would be killed by dangerous Malay people.3
2 CB 1 – 34
3 CB 19
The Tribunal’s reasons
The Minister’s submissions filed on 20 August 2018 summarised the Tribunal’s reasons for decision as follows:
9.The AAT considered the applicant's claim that he would be killed by Muslim gangsters if he returned to Malaysia.
10.At [12] to [20] of its decision, the AAT explained the meaning of section 424AA and put its concerns on credibility to the applicant for comment.10
11.The AAT found that the applicant lacked credibility and was not a reliable, credible or truthful witness. The AAT referred to inconsistencies in the applicant's claims regarding the operation of the restaurant and the threats he claimed to have received from Malaysian gang members.
12.The AAT found that the applicant did not own or operate a restaurant selling pork in Malaysia, and was therefore not targeted by a Muslim gang for selling pork dishes.
13.The AAT considered the applicant's claim that he would be killed because of his Chinese ethnicity. The AAT concluded that it did not accept that the applicant would be harmed for this reason and noted that there was no country information to suggest this would be the case.11
14.The AAT concluded that the applicant would not suffer significant harm if he returned from Australia to Malaysia.
10 CB 112
11 CB 114.
Ground 1
The first ground of review in the application filed on 28 December 2016 (“the application”) is:
The Second Respondent denied the applicant natural justice or procedural fairness in making the decision.
This ground was not particularised. At the hearing before me on 18 May 2020, the applicants, who were then unrepresented, made some brief oral submissions but they did not elaborate on this or any of their other grounds. The Tribunal made its decision on the same basis as the delegate, namely that the applicants were not credible witnesses and their claims were fabricated. Consequently, the applicants were well aware of the critical issues. The Tribunal invited the applicants to a hearing, which they attended.
Before the first judge, the applicants appear to have argued that the Tribunal pre-judged the matter. However, there is nothing before the court that indicates that the Tribunal was actually biased or that supports an argument of a reasonable apprehension of bias. This argument appears to be nothing more than a strong disagreement with the Tribunal’s ultimate findings.
Two of the issues raised by the first judge for post-hearing written submissions fall under the rubric of procedural fairness, and can conveniently be dealt with at this point. They were the issues of s.424A of the Act and Ly, which were the subject of the parties’ post-hearing submissions before the first judge.
Section 424A of the Act provides as follows:
(1)Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
…
(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3)This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
…
The Minister argued in his supplementary written submissions filed on 17 September 2018 that the country information relied on by the Tribunal fell within the exception in s.424A(3)(a) of the Act, in that the country information was not specifically about the applicants or another person but about a class of persons of which the applicants were members. Consequently, the Minister argued, the Tribunal was not required to give the country information to the applicants.
In his supplementary written submissions filed on 17 September 2018, the Minister also relied on VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 80 ALD 559; [2004] FCAFC 82 at [14], where Giles and Conti JJ said at [14]:
The reference to the class of persons in subs 424A(3)(a) is not another criterion to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it.
The applicants argued in their written submissions filed on 1 October 2018 that VHAP was distinguishable, and referred to paragraph 5 of that decision, which set out the grounds of review as originally framed in that case. The applicants’ point appears to have been that, in VHAP, the aspects of the claims to which the country information related were not dealt with at the Tribunal hearing.
That may be so. However, the legislation is clear, that the Tribunal is not required to give country information to an applicant if the country information is not specifically about that applicant or another person and is just about a class of persons of which the applicant is a member.
The applicants then noted in their written submissions filed on 1 October 2018 that the Tribunal said at [20] of its reasons for decision that:
It was put to him that the Tribunal was unaware of reports of Chinese being killed and he was advised that he could provide relevant country information to support his claim.
The applicants argued in their written submissions filed on 1 October 2018 that that statement implied, misleadingly, that the Tribunal did not have any country information that would be the reason or part of the reason for rejecting the applicants’ claims. I do not accept that the Tribunal’s statement quoted above carries the implication suggested by the applicants. The Tribunal was only indicating that it did not have any country information to a particular effect.
The applicants’ next argument in their written submissions filed on 1 October 2018 was that the exchange described above between the applicants and the Tribunal meant that the country information the Tribunal had was no longer about just a class of persons, but was specifically about the applicants. I do not accept that argument. The country information relied upon by the Tribunal was not specifically about the applicants or another person but was just about a class of persons of which the applicants were members. The applicants did not point to any aspect of the country information that was specifically about either or both of them or another particular person.
In relation to the second issue raised by the first judge, being the applicability of Ly to this case, the Minister noted in his supplementary written submissions filed on 17 September 2018 that the Full Court of the Federal Court said in Ly at [51]:
What is procedurally fair or unfair in relation to a finding that a document is not genuine depends on the procedures adopted, including whether the Tribunal had sufficiently alerted an applicant to doubts it had about the genuineness of documents submitted by him or her.
In the present case, there was no issue about the genuineness of any documents. However, the applicants argued that Ly stands for the proposition that, where the Tribunal has country information that would be dispositive of the case, the Tribunal must raise that country information with the applicant.
In his supplementary written submissions filed on 17 September 2018, the Minister referred to Minister for Immigration and Border Protection v SZTJF (2015) 149 ALD 552; [2015] FCA 1052, which concerned the interrelationship between s.424A of the Act and s.425 of the Act. The Minister noted paragraphs 51 to 53 of SZTJF. Those paragraphs, and paragraph 50 of that decision, are as follows:
50.It can be seen, therefore, that the primary judge found that the Tribunal breached s 425 in two respects. First, it failed to give the respondent the opportunity to attempt to distinguish her case from “Maria’s” case. Secondly, the Tribunal did not do enough at the hearing to ensure that the first respondent understood that the review would turn on her credibility, when “Maria’s” credibility had been rejected.
51.In my respectful view, the primary judge’s reasoning reveals error. Division 4 of Pt 7 of the Act, in which s 425 and s 424A are found, is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: s 422B. Section 424A provides for the information which the Tribunal is obliged to give to an applicant for review. The primary judge accepted that “Maria’s” evidence was not required to be put to the first respondent under s 424A. That being so, from where does the obligation arise to give the first respondent an opportunity to attempt to distinguish her case from “Maria’s” case? Moreover, how could this be done, given that, by force of s 429 of the Act, the hearing of an application for review by the Tribunal must be in private? The primary judge considered s 425 to be the source of the obligation. But, with respect, this cannot be correct.
52.Section 425 of the Act is directed to inviting an applicant for review to attend a hearing. …
53.Section 425 imposes an obligation on the Tribunal to provide a real and meaningful invitation, whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation ... But s 425 is directed to the invitation, rather than the hearing itself. By dint of s 422B, s 424A is to be treated as exhaustive of the requirements of procedural fairness relating to an applicant’s right to comment on adverse material which is known to the Tribunal and is to be relied upon by it: (citations omitted) (emphasis added by the Minister).
The applicants argued in their written submissions filed on 1 October 2018 that the present case was different, because, while “Maria’s” credibility really was irrelevant to the task of the Tribunal in SZTJF, the country information in the present case was not irrelevant to the task of the Tribunal.
Section 425 of the Act requires the Tribunal to identify for an applicant the critical issues on which the case will turn, if they have not already been made apparent in the delegate’s decision: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 93 ALD 300; (2006) 231 ALR 592; (2006) 81 ALJR 515; [2006] HCA 63.
The High Court said in SZBEL:
36.… unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
37.That this is the consequence of the statutory scheme can be illustrated by taking a simple example. Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness.
In the present case, the critical issues on which the Tribunal’s decision turned were the same as the critical issues on which the delegate’s decision turned. In both cases, the decision-maker did not accept that the applicant’s claims were credible. It follows that there was not a denial of procedural fairness arising from s.425 of the Act.
Having said that, there could be a case where s.425 of the Act would, in effect, prevail over s.424A(3)(a) of the Act. For example, if the delegate had accepted that a person had a well-founded fear of persecution by reason of his race in a particular part of a country but found that he could reasonably relocate to another part of that country, and the Tribunal had country information to the effect that the person did not have a well-founded fear of persecution by reason of his race in any part of the country, the Tribunal would be obliged to alert the person to the gravamen of that information, notwithstanding s.424A(3)(a) of the Act.
However, that is not this case. In the present case, both the delegate and the Tribunal rejected the applicants’ claims in their entirety for substantially the same reasons, being reasons of credibility. Consequently, in the present case, s.425 of the Act does not displace s.424A(3)(a) of the Act, which applied to mean that the Tribunal was not obliged to give the relevant country information to the applicants.
In his written submissions filed on 1 May 2020 (prior to the hearing before me), the Minister raised a third issue which falls under the rubric of procedural fairness, being the s.438 certificate issue. The applicants did not make any submissions on that point. The Minister conceded that the s.438 certificate and the documents it related to were not disclosed to the applicants. The Minister conceded that circumstance, without more, constitutes a denial of procedural fairness. The Minister also, implicitly, conceded that the s.438 notice in this case was invalid.
However, the Minister noted that, in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, the High Court made it clear that a breach of the requirement of procedural fairness would not result in a Tribunal decision being without effect if the breach could not realistically have resulted in a different decision. The Minister argued that the anodyne nature of the relevant documents in the present case meant that a different decision could not realistically have been reached, even if the relevant documents had been disclosed.
I have examined the documents, the subject of the s.438 notice, which are an exhibit to the affidavit of Mr Day. The notice itself was clearly invalid. The documents, the subject of the s.438 notice were entirely procedural, and consisted largely of checklists. The copy provided to the court of one of the folios was extremely difficult to read, but it was also a mere checklist. The documents confirmed, for example, that the applicants had been given copies of certain documents, and that their names and birthdates corresponded to their passport details. The disclosure of the documents could not realistically have made a difference to the Tribunal’s decision.
Technically, there was a breach of procedural fairness in relation to the s.438 notice. However, as it was not a material breach, I exercise my discretion to withhold relief.
Subject to the discussion below about whether the Tribunal considered all of the applicants’ claims, which is also an incident of procedural fairness, this ground is not made out.
Ground 2
The second ground of review in the application is:
The Second Respondent has ignored [a] relevant consideration in making the decision.
The applicants did not particularise this ground, except perhaps by ground 3, which concerns an alleged failure to consider a claim that the applicants faced persecution on the basis of their ethnicity. As is well-known, each integer of an applicant’s claims is a relevant consideration. Apart from the matters raised in ground 3, the applicants did not identify any other relevant consideration that the Tribunal had failed to address.
In the reasons for judgment of the first judge, her Honour observed that the applicants in relation to ground 2 simply relied on their previous submission that the Tribunal had pre-judged the matter.
In the applicant’s written submissions following the hearing before the first judge, the applicants addressed the third issue raised by her Honour, which was essentially the third ground in the application, but did not otherwise elaborate on ground 2.
As mentioned above, in the hearing before me on 18 May 2020, the applicants did not elaborate on this ground. In other respects, the parties did not address this ground, except as it falls within ground 3.
In the circumstances, I will deal with this ground as part of ground 3.
Ground 3
The third ground of review in the application is:
The Second Respondent failed to consider and determine whether the applicant faces a real chance of persecution in Malaysia on the basis of ethnicity. It could give rise to a well-founded fear of persecution for a convention reason.
At the oral hearing before the first judge, the applicants’ argument seems to have been that the Tribunal did not consider the applicants’ safety if they were to return to Malaysia. The first judge did not accept that, essentially finding that the Tribunal had considered all of the applicants’ claims.
As mentioned above, this ground was the subject of the third question that the first judge gave the parties leave to file post-hearing written submissions about, namely, whether the Tribunal considered the claim that the applicants would suffer harm as ethnic Chinese Malaysians.
In his supplementary written submissions filed on 17 September 2018, the Minister said in relation to this ground:
12.The first respondent submits that the AAT considered the applicant's claim to fear harm as an ethnic Chinese Malaysian, following its consideration of the applicant's claims regarding his restaurant.
12.1.At [20] the AAT put to him that it was unaware of reports of Chinese being killed. This was discussed with the applicant and he was advised that he could provide country information to support this claim.
12.2At [30] the AAT noted the limited information provided by the applicant, that the information he did provide [had] not been translated, and that he had not made any submissions in relation to this claim.
12.3At [29] the AAT noted the country information about Chinese Malaysians, before concluding that generally ethnic Chinese Malaysians do not experience harm or discrimination or violence on a day to day basis.
13.In the absence of any credible information advanced by the applicant in relation to this claim, the AAT concluded that the applicant would not be harmed on this basis.
14.Accordingly, the first respondent submits that the AAT considered the applicant's claim to fear harm on the basis of his Chinese ethnicity based on the information available to it.
In their written submissions filed on 1 October 2018, the applicants firstly said at paragraph 21:
… in paragraph 29 of the AAT Decision, the AAT said that it did not accept that the Applicant would be “killed”. However, the notion of "persecution" for the purposes of the definition of “refugee”,7 and the definition of “significant harm”8 for the purposes of complementary protection obligations, do not limit the relevant harm to a loss of life. By asking itself whether the Applicant would be “killed”, the AAT did not consider the Applicant's claim to fear serious harm if he were to be returned to Malaysia beyond the loss of his life.
7 Migration Act: s 5J(4) and (5); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 388 (Mason CJ), 399-400 (Dawson J), 429 (McHugh J); Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, 233 (Brennan CJ), 239 (Dawson J), 258 (McHugh J), 284 (Gummow J).
8 Migration Act 1958 (Cth): s 36(2A).
In their written submissions filed on 1 October 2018, the applicants argued secondly that the Tribunal had conflated the claims relating to the restaurant with the claim about ethnicity.
In their written submissions filed on 1 October 2018, the applicants argued thirdly that paragraph 30 of the Tribunal’s reasons for decision, which dealt with untranslated documents, did not assist, because the Tribunal’s error preceded any consideration of the untranslated documents.
Although there were directions permitting them to do so, the applicants did not file any additional written submissions prior to the hearing before me.
In his written submissions filed on 1 May 2020 (prior to the hearing before me), the Minister’s submissions on ground 3 were at paragraph 41 as follows:
The Tribunal clearly considered the applicant’s claim to fear harm in Malaysia as an ethnic Chinese: [29]-[32]. It was simply not satisfied of this claim. There is no merit in this ground.
Paragraphs 29 to 32 of the Tribunal’s reasons for decision are as follows:
Ethnicity
29.I also do not accept that he would be killed because of his Chinese ethnicity. To begin with he claims he would be targeted by the same Malay gang that he claimed ordered him to close his restaurant, a claim that I have found to be fabricated. I also note that country information indicates that ethnic Chinese ‘..generally do not experience discrimination or violence on a day-to-day basis.’[1]
30.I have taken into account the information provided post-hearing in support of this claim (folios 39-45) however lend it little weight. None of it translated nor is there any submission that would provide it with some context.
31.Further, I note that his conduct regarding applying for protection is not consistent with someone claiming to be in fear of being killed if they returned to Malaysia. Despite claiming to have deliberately come to Australia as a safe haven he waited for nearly three months before he applied for protection. I do not accept that he needed time to find out how to apply via the internet given the process is very straightforward. Nor do I accept that he wanted to see whether he liked the country first before he applied; it is reasonable to believe that someone fearing death would prioritise applying for protection over whether the weather in Australia was acceptable.
32.Having considered the applicant's evidence both individually and cumulatively, for the reasons set out above the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason.
[1] DFAT Country Report – Malaysia, 3 December 2014, p 9.
At the hearing before me on 18 May 2020, the applicants in oral submissions did not initially say anything in support of ground 3. The court raised with counsel for the Minister whether the Tribunal might have misunderstood the test of persecution, because the Tribunal only considered that the applicants would not be killed because of their Chinese ethnicity, without considering whether they might face any less severe form of persecution. There was a claim to the effect that the first applicant feared harm falling short of being killed. It was made in his protection visa application where he said, at CB19:
I was discriminated when I was in Malaysia because of my ethnicity. My ethnicity is China, I was discriminated by local Malay. I was ever harmed by local Malay. I believe if go back to Malaysia I will be put into risk of being harmed by local Malay. …
The Tribunal acknowledged the distinct ethnicity claim in paragraphs 20 and 22 of its reasons for decision, where the Tribunal said:
20.He claimed that Chinese people in Malaysia were being targeted. …
…
22.… The first-named applicant claimed to fear serious harm if he returned to Malaysia … and because he was ethnically Chinese.
Counsel for the Minister told the court on 18 May 2020 that he had not previously thought about the point about persecution falling short of killing. That is surprising, because it was the first point in relation to ground 3 in the applicant’s written submissions filed on 1 October 2018.
Counsel for the Minister, on the hop, during the hearing on 18 May 2020, noted that the Tribunal had found that the applicants’ claims about being targeted because they served pork in their restaurant were fabricated. The court then observed that issue connected with the second argument in the applicants’ written submissions filed on 1 October 2018, which was that the Tribunal had conflated the ethnicity claims with the restaurant claims.
The court also noted that the Tribunal had said that country information indicated that ethnic Chinese in Malaysia:
‘..generally do not experience discrimination or violence on a day-to-day basis’ …
The court noted that there were two concerns with that statement. To say that an event generally does not happen, and to say that an event does not happen on a day-to-day basis, does not say whether there is a real chance of that event happening. That is, it would be a normal use of the language to say that an event does not happen generally if it does not happen 70% or 80% of the time. But the event happening in the remaining 20% or 30% of the time would arguably be more than enough to amount to a real chance of that event happening. Similarly, if an event does not happen on a day-to-day basis, but happens weekly, or fortnightly, or monthly, that would arguably be sufficient to amount to a real chance of that event happening as well.
The court also raised with counsel for the Minister the question of whether the Tribunal placing weight on the applicants’ delay in filing their protection visa application might be unreasonable, where a delay of three months after arriving in Australia might generally seem to be within reasonable bounds.
The Minister sought and was granted an opportunity to file post-hearing written submissions on the points raised by the court on 18 May 2020 and the applicants were given that opportunity as well.
In addition, the Minister submitted orally at the hearing on 18 May 2020 that:
a)the court would not find on the balance of probabilities that the Tribunal thought that persecution was confined to killing, in circumstances where the Tribunal referred to discrimination and violence in the last line of paragraph 29 of its reasons for decision;
b)just because the Tribunal quoted country information saying that ethnic Chinese in Malaysia:
‘..generally do not experience discrimination or violence on a day-to-day basis’ …
did not mean that the Tribunal was equating that expression with the real chance test;
c)it was open to the Tribunal to give little weight to the country information produced by the applicants because none of it was translated and there were no submissions to put it in context;
d)when the court pointed out that one document that was produced by the applicants, at CB103, was in English, and said:
Malay mechanic … turned … the saviour of a Chinese man randomly attacked by …
counsel for the Minister said that the lack of context for that single incident justified the Tribunal in giving it no weight;
e)all of the applicants’ past experiences as relayed to the department and the Tribunal concerned the restaurant claim, which the Tribunal found to be fabricated, rather than any harm as a result of being a Chinese Malaysian;
f)in the absence of any account from the applicants about past experiences of persecution based on their ethnicity, the Tribunal could only look to the limited country information in support of a claim of persecution for reasons of ethnicity;
g)in relation to the three month delay, the court had to be careful of crossing the line into impermissible merits review; and
h)the three month delay had to be viewed in the context of the applicants’ explanations for the delay, which were wholly inadequate.
The first applicant said in reply orally on 18 May 2020 that:
a)he had provided media information to the Tribunal in his own language; and
b)he took some time to make his protection visa application.
The second applicant chose not to say anything to the court on 18 May 2020.
Following the hearing on 18 May 2020, with leave, the Minister and then the applicants, filed written submissions. The Minister also filed the affidavit mentioned above of Mr van der Westhuizen, which was admitted into evidence. It exhibited the DFAT report that the Tribunal referred to at paragraph 29 of its reasons for decision. The Minister did not say anything in his written submissions filed on 25 May 2020 about the DFAT report, other than, perhaps, that the Tribunal accurately quoted from it. The balance of the report is not strictly relevant, and I have not considered it. Obviously, the court has to look at what the Tribunal said in its reasons for decision, rather than what it could have said in the light of the country information.
a. Misunderstanding of persecution
The Minister said in his written submissions filed on 25 May 2020 that it was necessary for the court to pay careful attention to the claims actually made by the applicants. The Minister noted that the applicants’ claims of past harm focussed on the restaurant claims and did not otherwise recount any actual incident of past harm based on ethnicity, separate from the restaurant claims.
Where an applicant has made an express claim to fear a certain type of persecution, the fact that the applicant does not elaborate on that claim does not excuse the Tribunal from considering the claim, although it may mean that the Tribunal could readily reject the claim. Because, on the merits, the Tribunal might have been able to readily reject a claim, does not mean that the court can proceed as if the Tribunal had considered and rejected a claim, where there is no indication of that in the Tribunal’s reasons for decision.
The Minister conceded that it was not strictly correct for the Tribunal to say that none of the country information provided by the applicants was translated. However, the Minister submitted that, in the absence of substantial evidence to the effect that Chinese people in Malaysia were being persecuted for reasons of their ethnicity, it was open to the Tribunal to not be satisfied that the applicants faced persecution by reason of their ethnicity.
It may have been open to make that finding, but the question at present is whether the Tribunal misdirected itself as to the meaning of persecution and thereby failed to consider a claim. To say that the finding was open, when the Tribunal did not itself make a finding that that the applicants did not face a real risk of persecution falling short of being killed, is to invite the court to embark on impermissible merits review.
In any event, the Minister submitted that it made sense that the Tribunal would consider whether the applicants would be killed, because that was their claim. The Minister submitted that the applicants’ claim that they would be targeted by reason of their ethnicity was extremely spare and provided an unsatisfactory basis for a positive assessment that they faced a real risk of persecution. That may be so, but that did not mean that the Tribunal was excused from considering the point with a correct understanding of the meaning of persecution. Again, with this submission, the Minister is asking the court to delve into the merits of the case.
The Minister then argued that the Tribunal’s reference to discrimination or violence in the last line of paragraph 29 of its reasons for decision was consistent with the Tribunal appreciating that evidence of acts other than killing or threatening to kill might be relevant to the question of whether the applicants faced a well-founded fear of persecution. Paragraph 29 is as follows:
I also do not accept that he would be killed because of his Chinese ethnicity. To begin with he claims he would be targeted by the same Malay gang that he claimed ordered him to close his restaurant, a claim that I have found to be fabricated. I also note that country information indicates that ethnic Chinese ‘..generally do not experience discrimination or violence on a day-to-day basis.’[2]
[2] DFAT Country Report – Malaysia, 3 December 2014, p 9.
In my view, a proper reading of that paragraph is not that the words discrimination or violence expand the word killing. Rather, the Tribunal was fortifying its statement that the applicants would not be killed by saying that ethnic Chinese do not even experience discrimination and violence on a day-to-day basis.
The Minister then argued that there was no substantial evidence that the applicants faced a real risk of persecution of any kind on the basis of their ethnicity. That submission again goes to the merits of the case. When a claim is made, the Tribunal is required to consider it, whether it is supported by evidence or not. In the present case, the applicants did claim to face a real risk of persecution by reason of their ethnicity. That claim was independent of their restaurant claims.
Finally, the Minister submitted that, while the Tribunal could have expressed its reasons more clearly, or at greater length, the court should not be satisfied on the balance of probabilities that the Tribunal misunderstood the meaning of persecution.
The applicants said in their post-hearing written submissions filed on 1 June 2020 that the entirety of the Tribunal’s reasoning in relation to the question of ethnicity was in paragraphs 29 to 32 of the reasons for decision, under the heading Ethnicity. The applicants noted that, in paragraph 31 of its reasons for decision, the Tribunal said that:
a)the applicants’ three month delay in lodging a protection visa application is not consistent with someone claiming to be in fear of being killed if they returned to Malaysia; and
b)it is reasonable to believe that someone fearing death would prioritise applying for protection over whether the weather in Australia was acceptable.
(emphasis added)
The applicants argued that the Tribunal only considered whether the applicants faced a risk of death based on their ethnicity, and failed to consider the possibility of less severe harms. The applicants noted that there was no sign in the Tribunal’s reasons of any consideration of the risk of harms falling short of being killed.
The applicants also argued that paragraphs 12 and 13 of the Tribunal’s reasons for decision showed that there was evidence that the applicants suffered harms less severe than being killed after they closed the restaurant, and therefore, independently of their restaurant claims. Paragraphs 12 and 13 of the Tribunal’s reasons for decision are as follows:
12.The ten people visited his apartment in June 2014 just before he closed his business. After he closed his business they still kept harassing him. Every time he came to or left his apartment there was someone looking at him. He sold the apartment for a cheap price at the end of June. He had a copy of his bill of sale in Malaysia. The gangsters knew his car number plate and they still kept an eye on him as he rented within the area. He sold the car in July. He then hid himself but he heard the gangsters were still looking for him which was why he came to Australia to apply for protection.
13.He was asked why they were still after him if he had closed his business, and he claimed that later they were targeting him because he was Chinese. Asked if they were targeting all Chinese, he claimed he wasn't sure but was sure about himself. Asked why, he claimed he didn't know why but they were still looking for him.
Although some of the applicants’ evidence summarised in paragraphs 12 and 13 of the Tribunal’s reasons for decision concerns events that allegedly occurred after the applicants closed their alleged restaurant, that evidence does all appear to spring from the restaurant claims. The Tribunal resoundingly rejected all of those claims in paragraphs 26 and 28 of its reasons for decision, saying that it did not accept that the applicants ever owned a restaurant or that gang members went to the applicants’ apartment or watched them. Consequently, the evidence in paragraphs 12 and 13 of the Tribunal’s reasons for decision is excluded from consideration for present purposes.
The Tribunal clearly considered the applicants’ claims to fear being killed on account of their Chinese ethnicity. However, there was also the subsidiary claim of the applicants facing a real risk of harm falling short of being killed for reasons of their ethnicity. That claim was clearly made, whether or not it was supported by evidence. As such, the Tribunal was obliged to consider it.
The closest the Tribunal came to considering that claim was when it said that ethnic Chinese in Malaysia:
‘..generally do not experience discrimination or violence on a day-to-day basis’ …
However, as discussed above, to say that an event generally does not happen, and to say that an event does not happen on a day-to-day basis, does not say whether there is a real chance of that event happening. By failing to consider whether there was a real chance of the applicants suffering persecution falling short of death for reasons of their ethnicity, the Tribunal failed to consider the claim.
The fact that the Tribunal did not consider that claim, combined with its statements that:
a)the applicants’ three month delay in applying for protection was not consistent with a fear of being killed; and
b)the applicants prioritised an assessment of the weather in Australia over a fear of death,
suggest that the Tribunal was not cognisant, at least when writing the reasons for decision in this case, that persecution includes harms falling short of death.
Consequently, the Tribunal erred by failing to consider an integer of a claim, or erred by misunderstanding the meaning of persecution, or perhaps erred in both ways. One way or another, the Tribunal made a material jurisdictional error which warrants the decision being set aside, and the matter being remitted to the Tribunal for redetermination according to law.
b. conflating claims
The applicants argued that the Tribunal conflated the ethnicity claims with the restaurant claims. I accept that there was a good deal of overlap in the Tribunal’s consideration of the restaurant claims and the ethnicity claims. That was largely because the applicants said that they were targeted in their restaurant by Malay Muslims because the applicants were serving pork.
Nevertheless, as discussed above, there was a subsidiary claim that the applicants faced a real risk of persecution because of their ethnicity, which was independent of the restaurant claims. The Tribunal did minimally consider the independent ethnicity claims, when it said [at 29]:
I also note that country information indicates that ethnic Chinese ‘..generally do not experience discrimination or violence on a day-to-day basis.’1
1 DFAT Country Report – Malaysia, 3 December 2014, p 9.
As discussed above, that statement revealed a misunderstanding of persecution. The statement was directed at explaining why the applicants did not face a real risk of being killed. It did not in fact deal with the question of whether the applicants faced a real risk of harm falling short of persecution by reason of their ethnicity. While the Tribunal appears to have accepted that the Chinese Malaysians did not experience violence or discrimination on a day-to-day basis, the Tribunal did not assess how much violence Chinese Malaysians faced and whether that represented a real chance of being persecuted.
While there was some conflation of the consideration of claims, the real problem with the Tribunal’s reasons was as discussed above.
c. unreasonableness
The Minister said in his post-hearing written submissions filed on 25 May 2020 that the Tribunal did not say, in a vacuum, that a three month delay in filing a protection visa application suggested that the applicants were not genuinely fearful of returning to Malaysia. The Minister said that paragraph 31 of the Tribunal’s reasons for decision had to be seen in the context of the applicants’ explanation for their delay.
The relevant paragraphs of the Tribunal’s reasons for decision are as follows:
18.It was put to him that he didn't apply for protection until three months after he arrived. He had been a travel agent and had claimed that he came to Australia to seek protection so this delay may indicate that he was not at harm if he returned to Malaysia. He claimed that he wanted to check that Australia really was what he had heard about. It was put to him that he would have known about the mechanism by which he could apply for protection given he came here with the intent to do so. He claimed that he needed time to find out how to apply via the internet; it was put to him that this took about 30 minutes.
19.He claimed he wasn't good with computers and wanted to look at the country. It was put to him that he was claiming that he was at fear of being killed which was a serious claim, so it would appear that if he waited to check a country of protection out to see whether he liked it may not indicate he was not at risk in Malaysia. He claimed they came to Sydney then Queensland and he needed to consider the weather because Malaysia was a tropical country and he needed to see if he could survive in a country with four seasons.
…
31.Further, I note that his conduct regarding applying for protection is not consistent with someone claiming to be in fear of being killed if they returned to Malaysia. Despite claiming to have deliberately come to Australia as a safe haven he waited for nearly three months before he applied for protection. I do not accept that he needed time to find out how to apply via the internet given the process is very straightforward. Nor do I accept that he wanted to see whether he liked the country first before he applied; it is reasonable to believe that someone fearing death would prioritise applying for protection over whether the weather in Australia was acceptable.
The Minister submitted that the Tribunal’s process of reasoning in relation to the delay was unexceptionable and reasonable.
In their post-hearing written submissions filed on 1 June 2020, the applicants advanced an interesting argument based on s.5J(6) of the Act, which provides that:
In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.
The applicants argued that their conduct in delaying their application for a protection visa application was conduct engaged in by them in Australia and the Tribunal was obliged to disregard it unless it was first satisfied that that conduct was not engaged in for the purposes of the applicants strengthening their protection visa application. The applicants argued that the Tribunal had not made the necessary antecedent finding, and, in the absence of such a finding, the Tribunal’s decision relying on the applicant’s three month delay was unreasonable.
The Minister has not formally had an opportunity to respond to the s.5J(6) point, and I am reluctant to bring this matter back for yet another hearing or another set of written submissions. As I have already found jurisdictional error, it is probably preferable that I do not determine the unreasonableness point.
Conclusion
As the Tribunal’s reasons for decision were affected by a material jurisdictional error, the Tribunal’s decision will be set aside and the matter will be remitted to the Tribunal for determination according to law. As the matter took an unusual course, I will hear the parties on the question of costs.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 22 July 2020
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