EIE17 v Minister for Immigration

[2018] FCCA 4029

FEDERAL CIRCUIT COURT OF AUSTRALIA

EIE17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 4029

Catchwords:
MIGRATION – Refusal to grant applicant a Protection (Class XA) (subclass 866) visa – Malaysian national – alleged political involvement with the Bersih – no reasonable prospects of success.

Legislation:

Migration Act 1958 (Cth), s.5J(1)(a)
Federal Circuit Court Rules 2001 (Cth), rr.7.01(1) and 44.12(1)(a)

Applicant: EIE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2082 of 2017

Judgment of: Judge McNab

Hearing date: 13 December 2018

Date of Last Submission: 13 December 2018

Delivered at: Melbourne

Delivered on: 13 December 2018

REPRESENTATION

The Applicant in Person

Counsel for the Respondent: Ms S Nyabally

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application filed 27 September 2017 and amended application filed 13 December 2018 is dismissed.

2. Pursuant to r 7.01(1) of the Federal Circuit Court Rules 2001 (Cth), the title of the First Respondent be amended to Minister for Immigration, Citizenship and Multicultural Affairs.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $3,737.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2082 of 2017

EIE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(REVISED FROM DELIVERED EX-TEMPORE REASONS)

1. This matter comes before the Court as a ‘Show Cause’ Hearing. The Applicant appears on his own behalf and the First Respondent was represented by Ms Nyabally. The Applicant was granted leave to file an Amended Application which comprises one ground, being that:

   The Tribunal’s decision is vitiated by jurisdictional error in that it failed to attend to its statutory task, failed to ask itself the right question, misunderstood its task, failed to deal with a claim made by the applicant or failed to consider relevant consideration, namely, the independent country information accessed by the Tribunal.

2. The Ground has six Particulars.

   a)Particulars 1-4 set out specific findings made by the Tribunal about the movement known as Bersih.

   b)Particular 5 provides that [41] and [44] of the Tribunal’s decision record (‘the decision record’) demonstrated that it did not ask itself whether Bersih collects membership fees from, or issues membership cards to, those like the Applicant who participates in the rallies it organised. Instead, the Tribunal misdirected itself by asking only if the Applicant is able to provide proof of ‘active membership’ in finding the Applicant’s claim as not credible.

   c)Particular 5 is that the Tribunal failed to consider and evaluate for itself that the Applicant is not required to be an active member of Bersih in order to participate in the rally. This resulted in the Tribunal’s failure to deal with the consideration (that it was bound to consider) of whether participation in the rally forced him to flee Malaysia for his political opinions and beliefs.

3. The relevant chronology and summary of the Tribunal’s decision is accurately recorded in the outline of submissions filed on behalf of the First Respondent.

   4. The applicant is a 23 year old male Malaysian national: Court Book. He first arrived in Australia on 15 August 2016 as the holder of a UD-601 Electronic Travel Authority visa.

   5. On 9 November 2016, the applicant made an application for the visa. The applicant claimed that he had been a member of Bersih (a Coalition of nongovernment organisations) who seek to reform the current electoral system in Malaysia to ensure free, clean, corruption-free and fair elections. He asserted that he faced arrest and detention if he were to return to Malaysia.

   6. On 10 March 2017, the delegate refused to grant the visa. The delegate was not satisfied that the applicant would be targeted in Malaysia for one or more of the reasons specified in s 5J(1)(a) of the Migration Act 1958 (the Act); or that he would be unable to obtain the protection of the Malaysian authorities.

   7. On 2 April 2017 the applicant applied for review of the delegate’s decision. The applicant provided the Tribunal with a copy of the delegate’s decision record.

   8. On 1 August 2017 the Tribunal invited the applicant to give evidence and present arguments at a hearing scheduled for 28 August 2017.

   9. The applicant attended the hearing on 28 August 2017. The hearing was conducted with the assistance of an interpreter in the Malay and English languages. At the conclusion of the hearing, the Tribunal gave the applicant until 30 August 2017 to provide any additional submissions regarding his political activities in Malaysia. No additional submissions were provided.

   10. On 7 September 2017 the Tribunal affirmed the delegate’s decision.

   (references omitted)

4. At [18]–[19] of the decision record the Tribunal outlines the background of the Applicant:

   18. The applicant Mr Muhammad Azamuddin Ridhwan Ab Hamid is a 22 year old Malay national from Selangor, Malaysia. He is also Muslim by faith. He has family living in Malaysia which consists of his parents and six siblings. The Tribunal was told that the applicant is the fourth eldest of his family’s siblings. The applicant told the Tribunal that he had completed his education – having finished year 11. For employment, the applicant had worked in various positions – he was in sales, painter, a waiter at a food outlet and had also worked at the State Income Tax Office as a filing clerk. Before he left Malaysia for Australia, the applicant was working at the State Income Tax Office.

   19. His father works as a Taxi driver and his mother, the Tribunal was told works selling coconut rice to customers.

5. At [19] the Tribunal outlines the Applicant’s claims for protection:

   The applicant’s claim for Protection

   The applicant made the following claims for protection in his application for Protection to the Department:

    He claimed that he left Malaysia as he was an active member of the Bersih (Coalition of nongovernment organisations (NGOs)) who seek to reform the current electoral system in Malaysia to ensure free, clean, corrupt free and fair elections.

    He claimed that he reacted to a statement released by the Malaysian Minister of Home Affairs, Mr Ahmad Zahid Hamidi Said, “Malaysians are unhappy with this country’s political system should leave the country.”

    He claimed that this statement was made after a number of demonstrations led by the opposition party members that led to many being arrested and imprisoned by the authorities.

    He claimed that given the situation he arranged to leave the country.

    He claimed he is unable to obtain state protection as the police is part of the government in Malaysia and he will face detention and arrest if found.

    He claimed that he cannot relocate within Malaysia as it is a small country and he will be found by the authorities.

    He fears for his life and safety if he returns to Malaysia.

6. Central to his claim is that the Applicant claimed that he left Malaysia as he was an active member of the Bersih Coalition of Non-Government Organisations who seek to reform the current electoral system in Malaysia to ensure clean, free, corrupt-free and fair elections.

7. At [21], the decision records that the Tribunal asked the Applicant to describe to it his political involvement within the Bersih movement. The decision records that he stated that the current Malaysian Government was ‘not doing the right thing’ and he decided to participate in a Bersih-organised rally. The rally was held on 29-30 August 2015.

8. At [22], the Tribunal records that it asked the Applicant whether he involved himself in any particular activities of the Bersih movement other than attending the rally held on 29-30 August 2015. The decision records that the Applicant’s response was that he had no other involvement in the Bersih movement except to attend the public protest.

9. At [41] of the Tribunal decision, the Tribunal notes the evidence that the Applicant gave to the Tribunal that he did not involve himself in any of the movement’s activities except to participate in a political rally held on 29-30 August 2015. At [41], the Tribunal stated:

   The Tribunal accepts and finds that the Applicant is credible as far as it concerns his claim that he participated in the Bersih‑organised political rally which occurred on 29-30 August 2015 as did many thousands of Malaysian citizens, but the Tribunal does not accept that the Applicant’s participation in that political rally was because the Applicant was an active member of the Bersih movement or one of the other organising groups.

10. The Tribunal found that the Applicant does not have a well-founded fear of persecution in accordance with section 5J(1)(a) of the Act. Apart from the participation in the rally, the Applicant did not assert that there was any other conduct on his part which constituted his involvement in Bersih such as to found the claim that he was an active member.

11. As was noted in the Minister’s submissions, it is not for the Tribunal to make the Applicant’s claims. It is a matter for the Applicant to make his case. The suggestion that the Tribunal failed to make inquiries in order to make some other case is, in my view, bound to fail.

12. A further basis for the Tribunal not to accept the Applicant’s claim arises as a result of a claim made by the Applicant that while he was in Malaysia he feared being found and detained by Malaysian security police because of his involvement with Bersih. As stated by the Tribunal at [43]:

    The Tribunal does not accept this claim as credible. Again, the applicant by his own admission said that he was only a participant at the Bersih rally of August 2015. Thereafter, participating in that protest rally, the applicant remained in Malaysia for an entire year,

    deciding to leave for Australia on a tourist visa in August 2016. If the applicant had been a person of interest to the Malaysian security police because of his political beliefs or his involvement in public protests against the Malaysian government, the applicant would not have been able to leave Malaysia on a validly issued Malaysian passport from Kuala Lumpur International Airport. Furthermore, the applicant demonstrated no urgency to depart Malaysia, indicating he did not have a genuine and personally held fear of persecution.

13. In my view, the Amended Application does not give rise to an arguable case. On the basis of the reasons for decision, the Tribunal considered the Applicant’s claims as they were advanced before it. The Tribunal has considered the Applicant’s claims for protection and has given full reasons why those claims were rejected. The Court orders that the Application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  18 February 2020