Ehi17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1073
•24 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EHI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1073
File number(s): MLG 2165 of 2017 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 24 November 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Protection (Class XA) (subclass 866) visa – where the applicant initially claimed to fear harm in protection visa application due to sexuality – where applicant denied fear of harm on this basis at Tribunal hearing and instead primarily claimed fear of harm on the basis of economic circumstances and poor job prospects – consideration of whether Tribunal failed to consider ‘vital integers’ of applicant’s claims – finding that Tribunal considered totality of applicant’s written and oral claims – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 422B, 424A Cases cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Division: Division 2 General Federal Law Number of paragraphs: 77 Date of last submission/s: 22 August 2023 Date of hearing: 22 August 2023 Place: Melbourne Solicitor for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Ms A Hancock of Clayton Utz ORDERS
MLG 2165 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EHI17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
24 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The applicant’s application filed on 10 October 2017 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision by the Administrative Appeals Tribunal (‘the Tribunal’) dated 13 September 2017 to affirm a decision of a delegate of the then Minister for Immigration and Border Protection (‘the Minister’) to refuse the applicant a Protection (Class XA) (subclass 866) visa (‘protection visa’) under section 65 of the Migration Act 1958 (Cth) (‘the Act’).
BACKGROUND
The applicant is a Malaysian national.[1] He arrived in Australia on 9 March 2015 after being granted an electronic travel authority (‘ETA’), which expired on 9 June 2015.[2]
[1] Court book at page 21.
[2] Court book at page 23.
Application for protection visa on 25 January 2016
On 25 January 2016, the applicant applied for a protection visa, some seven months after his initial ETA expired.[3]
[3] Court book at pages 1 to 62.
Applicant’s claims for protection
In his protection visa application, the applicant claimed he left Malaysia:
… due to the persecution of Homosexuals under the Penal Codes 377 of Malaysias Sodomy Laws in which deny my membership of a particular group human rights (sic). …[4]
[4] Court book at page 32.
In response to the section of the protection visa application form asking ‘What do you think will happen to you if you return to that country(s)?’, the applicant stated:
Malaysia’s colony sodomy laws as prescribed in the Section 377 of the Penal Code state that I am subject to imprisonment for a period of up to 20 years as well as whipping for acts of homosexual contact and/or intercourse.[5]
[5] Court book at page 32.
Regarding the harm the applicant claims to have suffered, his response in his application was:
My parents are very strict Muslims and have disowned me due to my membership of a particular group being homosexual.
I have been made redundant from a senior government position as a direct result of my sexuality.
I have been threatened by my own family members to be reported to the police as a result of my sexuality, essentially threatening my human rights and freedom.
I have had to a live a life of deceit hiding my sexuality to avoid prosecution and persecution as a direct result of my sexuality.[6]
[6] Court book at page 33.
The applicant stated that he did not seek help within his county after the harm because:
To seek help in Malaysia would be deemed as a “consciousness of guilt” and would place my freedom and human rights in genuine risk of well feared harm and persecution which could lead to prosecution under sodomy laws of Malaysia and imprisonment of up to 20 years[7]
[7] Court book at page 33.
In response to the question of whether he tried to move to another part of the country to seek safety, the applicant said:
Malaysias Sodomy Laws and its prescribed Penal Code 377 are prescribed law nation wide.
Relocating to another province, city and/or town would not result in me being able to live a life free of fear of persecution and prosecution under these Laws of Malaysia and would only result in further extensive hardship and fear
…
Malaysia’s sodomy laws are nation wide and relocating will not allow to me live a life free of the fear of persecution and prosecution and no matter i was to relocate too I would still have a genuine risk of harm and persecution as a direct result of Malaysia’s colonial laws and its prescribed penal codes (sic)[8]
[8] Court book at pages 33 and 34.
The applicant stated in response to the question of whether he thinks he will be harmed or mistreated if he returns to Malaysia that:
I fear persecution and prosecution as a direct result of my sexuality which remains illegal in my country of citizenship.
Sodomy Laws of Malaysia clearly state and are prescribed that such acts can receive a penalty of up to 20 years imprisonment and whipping if prosecuted.
Being a Muslim with devout Muslim parents and friends, my sexuality has resulted in severe persecution, discrimination and acts of violence to my well being.
I have been threatened with being reported to both senior religious authorities as well as government authorities for the majority of my adult life as a direct result of my sexuality. I have been beaten, abused , both mentally and physically and can no longer live in this manner and fear of persecution and denial of my human rights and for these reasons I have travelled to Australia to seek protection[9]
[9] Court book at page 34.
Delegate’s refusal of protection visa on 29 February 2016
On 29 February 2016, the delegate refused the applicant’s protection visa application.[10] The applicant was notified of the delegate’s decision by email to his appointed migration agent on 3 March 2016.[11]
[10] Court book at pages 70 to 81.
[11] Court book at pages 64 to 67.
In the delegate’s decision record, the applicant’s claims were summarised as follows:
•… he has been persecuted under the penal codes 377 of the Malaysian sodomy laws for his membership of a particular social group;
•He claims that he fears persecution due to his sexuality if returned to Malaysia;
•He claims he was disowned by his family and threatened by them to be reported to police. He claims he has been beaten, abused, both mentally and physically. He also claims that he was made redundant of a senior government position as a direct result of his sexuality/membership of particular social group;
•The applicant claims seeking help in Malaysia would be deemed 'consciousness of guilt' and would place his human rights and freedom in genuine risk. It could lead to persecution under the sodomy laws and result in 20 years of imprisonment;
•Since the sodomy laws apply nationwide, he does not think he can relocate to another part of Malaysia and be safe.[12]
[12] Court book at page 71.
Ultimately, the delegate was not satisfied that the applicant had a well-founded fear of persecution due to his sexuality. Therefore, the delegate did not consider that the applicant met the criteria to be considered a refugee under section 5H of the Act, nor that the applicant’s claims gave rise to Australia’s complementary protection obligations.[13]
[13] Court book at pages 79 and 80.
Application for review in the Tribunal on 21 March 2016
On 21 March 2016, the applicant lodged an application for a review of the delegate’s decision in the Tribunal. He was assisted in making this application by a representative.[14]
[14] Court book at pages 82 to 87.
On 4 April 2017, the Tribunal invited the applicant and his representative via email to attend a hearing on 28 April 2017.[15] This hearing was ultimately rescheduled to 7 July 2017.[16]
[15] Court book at pages 98 to 102.
[16] Court book at pages 140 to 150.
The applicant attended the hearing with his representative and was assisted by a Malay interpreter.[17]
[17] Court book at page 151.
On 13 September 2017, the Tribunal affirmed the decision of the delegate to refuse to grant the applicant a protection visa.[18]
[18] Court book at pages 155 to 160.
TRIBUNAL DECISION
The Tribunal’s decision record dated 13 September 2017 is set out at pages 161 to 168 of the court book.
At paragraphs [2] and [3] of its decision record, the Tribunal set out the applicant’s migration history and entry into Australia on an ETA.
At paragraph [4], the Tribunal summarised the applicant’s claims.in his protection visa application as follows:
•He has been persecuted under the Penal Code 377 under Malaysian law for his membership of a particular social group.
•He fears persecution due to his sexuality if he returns to Malaysia.
•He has been disowned by his family and threatened by them to be reported to the police. He has been beaten, abused, both mentally and physically.
•He was made redundant from a senior government position as a direct result of his sexuality/membership of a particular social group.
•Seeking help in Malaysia would be deemed 'consciousness of guilt' and would place his human rights and freedom in genuine risk. It could lead to persecution under the sodomy laws and result in 20 years imprisonment. These laws apply nationwide and he does not think he can relocate to another part of Malaysia and be safe.
At paragraph [5], the Tribunal noted that the delegate refused to grant the applicant a protection visa on the basis that:
5.… minimal detail had been provided by the applicant about incidents referred to in his claims. The delegate was also concerned that the applicant did not apply for protection in Australia until nearly ten months after he arrived. The delegate considered that such a lengthy delay tends to weigh strongly against the applicant’s sincerity, or at least the depth of his stated fear of being persecuted in his home country.
At paragraphs [6] to [11], the Tribunal outlined the applicant’s personal background and migration history, noting that the applicant is a Muslim who previously lived primarily in Klang in Malaysia with his family. The Tribunal also noted that the applicant is single and has siblings, including a brother who ‘always needs financial help’ and two sisters, one of which works in a factory and is paid ‘very poorly’, and the other who is at school.
At paragraph [6], the Tribunal noted that the applicant had no family in Australia and had remained in contact with his family in Klang since coming to Australia.
At paragraph [7], the Tribunal further noted that the applicant had been working as a farmer from 2005 to 2011, worked for the Department of Statistics from 2011 to 2012 doing a population survey, and that the applicant also stated that he had been working in Australia on farms picking fruit.
Relevantly, at paragraph [8], the Tribunal recorded that at the hearing, in response to being asked why he left Malaysia in March 2015, the applicant stated that it was due to his family having financial difficulty. The applicant went on to say that Klang is a small city, he was only working intermittently and his siblings were not able to finish their studies.
At paragraph [9], the Tribunal noted that, when asked why he came to Australia, the applicant said he ‘heard that there was work’.
At paragraph [10], the Tribunal further noted that the applicant remained in Australia unlawfully following his ETA expiring on 9 March 2015, that a friend told him he could apply for protection and that he came to Australia with the intention of helping his family.
At paragraph [11], the Tribunal recorded that the applicant said he had help from a representative who completed his application for a protection visa, with the applicant outlining his problems and the representative completing it. The applicant was asked by the Tribunal if he agreed with the contents of the application, which he said that he did, and if he wanted to add anything to his claims, to which he said that he did not.
At paragraphs [12] to [15], the Tribunal said that it questioned the applicant further about his specific claims in his protection visa application regarding his fear of harm due to his sexuality. Relevantly, the Tribunal said:
12.The applicant was asked why he fears returning to Malaysia. He said he is very afraid he will not get a job and not be able to help his family financially.
13.The applicant was asked if he is aware of the claims made in his application form. He said his claims are about having freedom to work because there are not many jobs in Malaysia and he knows that he told the representative that he wants to help his family financially.
14.The applicant was asked if he discussed his sexuality with his representative. He said he did not. The applicant was asked if he fears persecution due to his sexuality if he returns to Malaysia. He said he does not.
15.The applicant was asked if he is a homosexual. He said he is not. The Tribunal outlined the claims that had been made in the protection visa application and asked for the applicant's response. He said they are not true claims and he was not aware such claims were made.
At paragraphs [16] to [17], the Tribunal stated that the applicant was asked if there were other reasons aside from financial and poor work prospects as to why he fears returning to Malaysia, with the applicant stating that he does not want to return due to:
16.… [the] politics and the financial situation in Malaysia. [The applicant] said there is a lot of corruption in Malaysia and it is difficult for lowly skilled labourers to get work. [The applicant] said there is corruption at all levels, especially during elections.
At paragraphs [18] to [20], the Tribunal explored the applicant’s status in Malaysia as an ethnic Malay known as a ‘bumiputera’.
At paragraphs [21] to [23], the Tribunal referred to the requirements under section 5J of the Act stating that:
21.… a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of Malaysia.
Relevantly at paragraph [21], the Tribunal noted that the applicant said his issue is not one of harm for the reasons outlined under section 5J of the Act. The applicant was asked if he had been discriminated against in any way in trying to obtain work or any other reason, to which he responded that ‘he ha[d] in a way because when he goes for an interview, the employer chooses their own friends o[r] relatives’.
At paragraph [23], the Tribunal recorded that when asked what would happen if he were to return to Malaysia, the applicant stated that:
23.… since he has been in Australia he has been able to help his family financially and there has been some improvement to their lives. His younger sister has been able to continue back to school. He confirmed that as an ethnic Malay student she does get some government help but it is very little. He wishes to continue to help his family.
At paragraphs [24] to [30], the Tribunal set out the criteria for a protection visa, noting at paragraph [30] that the issue for the Tribunal is whether the applicant meets these criteria.
At paragraph [31], the Tribunal concluded that the decision of the delegate to refuse to grant the protection visa to the applicant should be affirmed.
At paragraphs [32] and [33], the Tribunal found that the applicant is a citizen of Malaysia as claimed, that Malaysia is the receiving country for the purposes of the refugee and complementary protection assessment and that there is no available evidence to suggest that the applicant has a current right to enter or reside in any safe third country for the purposes of the section 36(3) of the Act.
At paragraphs [34] to [40], the Tribunal assessed the applicant’s specific claims.
Relevantly, at paragraph [34], the Tribunal noted that:
34.… the applicant’s claims do not concern fear of harm on the basis of his sexuality as originally included in the application for the protection visa. The applicant strongly denied any claims to do with sexual orientation and said that the person who he had paid to help him to complete the application form included these without his knowledge. His English is very limited and he trusted that the application included his reasons for coming to Australia.
At paragraph [36], the Tribunal summarised the applicant’s claims made during the hearing before it, as essentially being that ‘he and his family are in financial hardship and the reason he came to Australia was to find work to help them’. The applicant stated to the Tribunal that he is relatively unskilled, found it difficult to find ongoing work and his family were poor.[19]
[19] Tribunal decision record dated 13 September 2017 at paragraph [37].
At paragraphs [38] to [41], the Tribunal rejected the applicant’s characterisation of the economy in Malaysia, citing country information indicating that the Malaysian economy featured ‘relative strong growth, low inflation and low rates of poverty’, while noting the applicant said that his experience of Malaysia was different to what the country information would suggest.
At paragraph [41], the Tribunal concluded that, on the evidence before it, the applicant will not experience financial hardship amounting to serious or significant harm should the applicant return to Malaysia.
At paragraphs [42] and [43], the Tribunal found that the applicant did not have a well-founded fear of persecution nor is he a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
At paragraphs [44] to [47], the Tribunal considered whether the complementary protection provisions under the Act applied to the applicant, to which the Tribunal found that they did not.
At paragraph [48], the Tribunal therefore affirmed the decision of the delegate to not grant the applicant a protection visa.
PROCEEDINGS IN THIS COURT
The applicant filed his application for judicial review in this court of the Authority’s decision on 10 October 2017.
The matter was ultimately listed for final hearing before me on 22 August 2023. At the final hearing before me, the applicant appeared on his own behalf and was assisted by a Malay interpreter.
GROUNDS OF REVIEW
In his originating application filed on 10 October 2017, the applicant raises four grounds of review, namely:
1.The Tribunal failed to consider many vital integers of my case;
2.The Tribunal failed to consider many vital evidence that are relevant to my case;
3.The Tribunal deprived me of procedural fairness;
4.The Member has failed to do his duty
At the commencement of the hearing, the applicant confirmed that he had not filed an amended application or any written submissions, notwithstanding orders made by Registrar Luxton on 13 June 2018 permitting for this to occur 28 days prior to the final hearing. When asked whether there was anything that he wished to say in relation to the grounds of review raised in his application, the applicant said that he had nothing to add.
The applicant said that when he prepared his application, he did not know what to say. He said that he asked his lawyer to prepare the documents and his lawyer included the claims in the application.
For the following reasons, none of the grounds of review have been made out in this matter.
Ground 1
Ground 1 consists of a bald assertion that the Tribunal failed to consider ‘many vital integers’ of the applicant’s case. The Minister accepts that a failure to consider an integer of a claim, either expressly made or which squarely arises on the material before the Tribunal, could amount to a jurisdictional error.[20] However, in this case, the applicant does not identify those ‘integers’ which he says form part of his claim but which were not considered by the Tribunal.
[20] Minister’s Outline of Submissions filed on 8 August 2023 at paragraph [18]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
In any event, it is evident from a fair reading of the Tribunal’s reasons that it did consider the claims made by the applicant. In his protection visa application, the applicant set out various claims as to why he left Malaysia.[21] This related in large part to his claims to fear harm because of being a homosexual.
[21] See Court book at page 32.
However, the applicant made it clear during the hearing before the Tribunal that he was in fact not a homosexual and that this was not the basis for him leaving Malaysia.[22]
[22] Tribunal decision record dated 13 September 2017 at paragraph [15].
At paragraphs [8] to [9] of the Tribunal’s decision record, the Tribunal records the reasons given by the applicant as to why he left Malaysia, namely due to financial difficulties and that he understood that he could obtain work in Australia. At paragraph [10], the Tribunal records that the applicant stated in the Tribunal hearing that he came to Australia with the intention of helping his family and did not know how long he would remain here.
The Tribunal further noted at paragraph [12] that when asked why he feared returning to Malaysia, the applicant said he was afraid that he would not be able to get a job and feared not being able to help his family financially.
Further, at paragraph [16], the Tribunal explored with the applicant whether there were other reasons why the applicant feared returning to Malaysia, to which the applicant replied that he feared politics, the financial situation in Malaysia, difficulty for ‘lowly skilled labourers’ to get work and corruption in Malaysia.
At paragraphs [18] to [20], the Tribunal also discussed the applicant’s ethnicity and country information about the likelihood of discrimination against ethnic Malays.
At paragraph [23], the Tribunal discussed with the applicant what he believed would happen if he were to return to Malaysia, with the applicant saying that he feared that he would not be able to continue to assist his family financially as he wished to do.
The Tribunal then went on to consider each of these claims made by the applicant during the Tribunal hearing at paragraphs [34] to [41]. At paragraph [34], the Tribunal considered the claims made by the applicant in his written application and concluded that this was not a basis upon which the applicant actually feared harm.
The Tribunal then went on to consider the actual claims made and having regard to the applicant’s own evidence and relevant country information, did not accept that the applicant would not be able to access paid employment if he were to return to Malaysia.
At paragraph [40], the Tribunal concluded that:
40.… the applicant does not have a real chance of serious harm arising from his economic circumstances for reasons mentioned in s. 5J(1)(a) or any other claimed reasons, if he were to return to Malaysia from Australia, now or in the reasonably foreseeable future.
It is therefore clear on the face of the Tribunal decision record that it considered all of the applicant’s claims, both those made in his original protection visa application as well as those made at the Tribunal hearing.
Therefore, ground 1 is not made out.
Ground 2
Ground 2 claims that the Tribunal failed to consider ‘many vital evidence’. No particulars are given of this. Again, for the reasons articulated in relation to ground 1, when read fairly, the Tribunal considered all of the evidence given by the applicant.
Indeed, it is evident from the Tribunal’s decision record that the Tribunal elicited as much evidence as it could from the applicant to enable it to consider the concerns and fears that the applicant had.
Ground 2 is therefore not made out.
Ground 3
By ground 3, the applicant asserts that the Tribunal failed to afford him procedural fairness. Again, he does not particularise this ground.
As noted by the Minister, section 422B of the Act provides that Division 4 of Part 7 is ‘an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with’.[23]
[23] Minister’s Outline of Submissions filed on 8 August 2023 at paragraph [25].
Consistently with Division 4 of Part 7, the applicant was invited to attend a hearing and attended that hearing with the assistance of a Malay language interpreter. The Tribunal had regard to evidence provided by the applicant, as well as country information in coming to its decision, neither of which needed to be expressly put to the applicant pursuant to section 424A(3) of the Act.
There is no other basis on which it could be said that the Tribunal failed to afford the applicant procedural fairness.
For each of these reasons, ground 3 is not made out.
Ground 4
By ground 4 the applicant claims that the Tribunal member ‘failed to do his duty’. Again, no particulars are provided. There is no apparent error in the manner in which the Tribunal undertook its duty.
The Tribunal considered the applicant’s claims. When it became apparent that the claims made by the applicant in his application were in fact not the claims that he pressed, the Tribunal inquired as to the actual basis upon which the applicant feared to return to Malaysia. The Tribunal considered those claims and the applicant’s evidence, together with relevant country information.
The findings made by the Tribunal were reasonably open to it and there is no proper basis upon which to conclude that the Tribunal erred in performing its statutory task.
For each of these reasons, ground 4 is not made out.
CONCLUSION
As none of the applicant’s claimed grounds have been made out, I order that the application be dismissed and that the applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 24 November 2023
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