ELS17 v Minister for Immigration

[2018] FCCA 1674

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELS17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1674

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa).

First Applicant: ELS17

Second Applicant: ELT17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 985 of 2017

Judgment of: Judge Vasta

Hearing date: 18 June 2018

Date of Last Submission: 18 June 2018

Delivered at: Brisbane

Delivered on: 18 June 2018

REPRESENTATION

The Applicants appearing their own behalf with the assistance of an interpreter

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. That the Application filed 4 October 2017 be dismissed.

2. That the Applicants pay costs to the First Respondent fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

No. BRG 985 of 2017

ELS17

First Applicant

ELT17

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 7 September 2017 the Administrative Appeals Tribunal (“the AAT/ Tribunal”) affirmed a decision of the delegate of the Minister for Home Affairs not to grant the Applicants, who are husband and wife, ELS17 and ELT17 protection visas.  The claims that the Applicants make are somewhat bizarre.

2. The Applicants are citizens of Malaysia.  A summary of the Applicants’ claim in the protection visa application is this: 

   a)the Applicants were forced to join a cult; 

   b)they will face harm and will be threatened and kidnapped if they return to Malaysia;  and

   c)the Applicant husband was forced to drink holy water and, if he did not do so, they threatened to hurt the Applicant wife.  The Applicant husband tried to fight back but failed to do so, after which they hit the Applicant wife and threatened her with a knife until they both did what was asked.

3. In the hearing before the AAT, this was said, and I will quote from paragraph 27, by the Applicant husband. 

   … He stated that having returned from Singapore on 20 December 2012 they went to a shopping centre to buy clothes.  While they were there they met a neighbour from the village who they had not seen for a long time and had a chat.  She said something about inviting them to have food together.  She was very insistent.  He was embarrassed to say no so they went along.  They arrived at her home at around 5-6 pm.  By the time they got there they felt something was wrong.  When the entered the room, about seven to eight people were reciting verses.  He asked his neighbour what happened.  She said sorry, she doesn’t know.  They wanted to leave but those people stopped them from leaving…

4. The Tribunal asked the Applicant in what way were they stopped.  He stated that they blocked the door and asked them to join the church.  The people threatened to kill his family.  These people said the end of the world will come soon and that the Applicants should give them all their money and property. 

5. The Applicant husband stated that after one day the Applicants told these people they need to go home, so they offered their ID cards.  After they gave their ID cards and contact details to them, they were able to go home.

6. The AAT had some trouble with those claims, not surprisingly, and put to the Applicant husband that the story he gave was not very plausible, given that he says he went with a neighbour to her home and was then held for 24 hours.  The Applicant husband responded that in Malaysia they did not have any money.  The Tribunal indicated to the Applicant husband that this did not help the Tribunal understand the circumstances he had described.  Moreover, the Tribunal put to the Applicant husband that if he did not have any money, he would be of less interest to this cult group.

7. The Applicant husband then said that they had some money but limited money.  The Tribunal then gave the Applicant husband a further opportunity to explain the situation that was central to his claims, and he explained he had difficulty understanding everything because he was not very well educated.

8. He did confirm that neither he nor his wife were harmed in any way.  The Applicant husband said that they were threatened and did not go out for a few days after that, and his wife could not stop being suspicious that someone will come. 

9. The Tribunal then asked the Applicant wife what harm they had suffered before they came to Australia.  She stated that in December 2012, they were forced to join a religion.  She stated it was about mid-December or almost the end of December.  She stated they met a neighbour while they were shopping, and responded to her invitation to share food.  They were embarrassed to turn down the invitation because she was so warm-hearted.  After they shared food, they went to her home to have a look, although initially they refused.

10. After they entered, they were not allowed to go home.  There were about eight people inside, and they were holding some sort of booklet in their hands.  She stated these people told them the world is going to end.  The neighbour said that she would be starved for a few days and will not be able to go out.  The Applicant wife stated they were locked up in the room.  A young boy who was very aggressive stood in front of them.  She stated that her husband was not beaten, but they were not allowed to leave for a few days.

11. The Tribunal asked the Applicant wife if she could be more specific about how long they were detained.  She stated they were held for about one week, but she was not sure and she does not like to remember.  She said that they were not given food for a few days.  Then they were told they had to bring new followers, and went out to do so during which time they were monitored. 

12. The Applicant wife stated that they could not find anyone to join, so they returned.  After that, they were forced to donate money to the religion.  When they were released, they had to provide the captors with their home address.

13. The Tribunal put to the Applicant wife its concerns about the claims and that they had trouble with the plausibility of what had been described.  The Applicant wife responded that there were only two of them and they were outnumbered by their captors. 

14. The Tribunal asked the Applicant husband if he ever saw these people again before he and the wife left Malaysia, and he responded he saw them one more time.  Someone came to pick him up, and he saw those people near his home.  They drove a motor vehicle on the side of the road and stopped near his home.  He said that he and his wife were afraid, and they got into a taxi which his friend was driving.  He asked his friend to take him away.

15. In response to the same question, the Applicant wife stated that they saw them one further occasion.  She stated that she and her husband were told that they must find other people to join their religion.  She said that this occurred near their home and they were threatened if they did not find anyone to join the religion.  She stated that is why they came to Australia. 

16. The Tribunal attempted to ascertain from the Applicant wife how she and her husband managed to get away, and she responded by saying that she and her husband told them that they would get people to join the religion.

17. The Tribunal asked the Applicant husband about the written claim that he was forced to drink holy water and that, if he did not do so, they threatened to hurt the Applicant wife and that he tried to fight back but failed to do so after they threatened his wife with a knife. 

18. The Applicant husband responded that he does not know why the agent wrote that down, and that what he was saying to the Tribunal was correct.  He said that he was not forced to drink water but was asked to provide money or he would be killed.  The Tribunal also asked him about his written claim that he was threatened with a knife, and he said that he was not threatened with the knife but they attempted to hit him with a stick and threatened to kill him.

19. Obviously, there were great discrepancies between the written application and what the Applicant was saying orally.  The Tribunal asked the Applicant husband what harm he fear if he were to return to Malaysia.  He stated that he was afraid that if he runs into those people again, they might kill him. 

20. The Tribunal asked the Applicant why they would want to kill him, and he said that they previously have demanded money and that he and his wife subsequently left Malaysia.  He stated that if he and his wife met them again, he does not know what will happen to them.

21. The Tribunal asked the Applicant husband if any of his relatives in Malaysia had indicated to him that people from the cult had come looking for him since he left Malaysia.  He stated that he speaks with his mother approximately every two weeks, but she does not live in the village that he lived in. 

22. The Tribunal asked the Applicant if any of his other relatives remained in the same village.  He replied in the negative. 

23. The Tribunal then asked the Applicant wife what harm she fears if she and her husband were to return to Malaysia, and she said people from the cult will take action against their family and look for them.

24. The Tribunal put it to the wife that she and her husband had been away for four years, and asked if the cult had taken any action against her family to date.  She said that her father told her they came one more time but she does not know when.  The Tribunal asked the wife when she was told this by her father and she responded that the father is quite old and has senile dementia, so his memory is not good.  The Tribunal put it to the wife that her father may have been mistaken, and the wife responded that it was impossible for her father to have been mistaken because, although he is old, he would not mistake them.

25. Obviously, with the number of discrepancies, the Tribunal had quite a deal of problem accepting this story.  The Tribunal listed their concerns as being: 

    a)the length of time the husband and wife say they were held by their captors; 

    b)what happened during the time of their captivity;

    c)how they came to be released;  and

    d)what occurred when they saw their captors subsequently. 

    The Applicant husband responded that his wife was very scared when these things happened and they happened some time ago.  Consequently, she provided wrong information.

26. The Tribunal then looked at all of the circumstances.  The Applicants are citizens of Malaysia.  On 24 May 2007 they arrived in Australia as holders of visitor visas.  They departed on 20 February 2010.  On 29 April 2013 the Applicants arrived in Australia again as the holder of visitor visas.  The visas expired on 29 July 2013.  The Applicants remained in Australia unlawfully after that time. 

27. On 14 May 2015 the Applicants applied for protection visas, certainly well over two years after they had first arrived in Australia.  The Applicants did not give a satisfactory explanation as to why a protection application was not lodged earlier.

28. Whilst some aspects of the husband’s claims were corroborated by the wife, the Tribunal put significant weight on the fact that key elements of his claims were contradicted by his wife, as I have already outlined. 

29. The Tribunal considered that the Applicant’s submission that he was not aware of what his own migration agent actually included in his written protection visa application was not plausible.  The extent of those inconsistencies raised such serious concerns for the Tribunal that the Tribunal found that the veracity of their claims were seriously undermined.

30. In the end, the Tribunal was not satisfied of the story, therefore they were not satisfied that there was a real chance that the Applicants would face serious harm if they returned to Malaysia now or in the reasonably foreseeable future.

31. On 4 October 2017 the Applicants lodged the present application for review.  The grounds of the application are as follows, and I will deal with them seriatim.  Ground one:

    The first respondent (the Department and the second respondent (the AAT) ignored the evidence provided in this case.  The applicants were not allowed to make further comment for the issues described in the decision, particularly in the situation that the written statement could not reflect the truth.

32. Firstly, this Court is not looking at what the Department did but only looking at what the AAT did.  It is very difficult to see how anyone could accept that the AAT ignored the evidence provided in this case.  The Applicants were given many opportunities to say what it is that they wanted to say and to make explanations.  They were assisted by an agent who, whilst he prepared the material and did not turn up at the hearing, had certainly laid all the foundations for what the Applicants were submitting to the AAT.

33. The AAT asked them on a number of occasions to make further comments and gave them plenty of time to do so, as can be seen by an examination of the reasons.  It seems to me, then, that there is no merit at all in ground one. 

34. Ground two:

    The AAT failed to consider the up-to-date environment in Malaysia.  In Malaysia, the Royal Malaysian Police (RMP) reports to the federal Minister for Home Affairs and is responsible for law enforcement nationwide.  RMP officers receive limited training, particularly on human rights.  Police officers are paid one of the lowest wages in the Malaysian civil service and corruption has been recognised as a concern.  There are inadequacies in the policing practices in Malaysia. Thus, the RMP has no ability to protect the applicants in an effective way.”

35. Firstly, that material it seems, if it was before the AAT, certainly played no part in any of the discussions that were had, but, in any event, such a ground relies upon an acceptance of the premise that the Applicants need protection from persons in the cult.  The AAT found that they do not need any such protection, and so ground two does not have any basis whatsoever, and so I find that there is no merit in ground two.

36. Ground three:

    The AAT ignored that the Malaysia Government would fail to provide the applicants with protection.  The applicants presented oral evidence that suggested that the authorities would fail to protect them due to their race (Chinese Malaysian).  The race discrimination in Malaysia indicates that the applicants will not be given state protection for a Convention reason if they return to Malaysia.

37. Again, this is predicated upon an acceptance of the claim that there is a cult that had kidnapped the Applicants and who would be after them if they came back to Malaysia.  Having rejected that that would occur, there is no real chance that the Applicants would suffer serious harm for any Convention reason. 

38. But, again, it does not seem that this was anything that was before the Tribunal, that is, a claim that there was race discrimination that would mean that the Applicants would not have any protection.  Because that claim was not before the AAT, I cannot look at the matter.  In any event, as I say, because the ground is predicated upon an acceptance of the claims of the Applicant, there is no merit in it.

39. Ground four is as follows:

    Paragraph 36(2)(aa) of the Act sets out the criterion for the grant of a Protection visa on complementary protection grounds.  This is not fairly evaluated by the AAT.  The applicants should have been offered extension of time for providing paper evidence, which was still in Malaysia.

40. This ground has little merit in either.  The Tribunal, in its reasons, has identified the correct legal test in respect of complementary protection.  The Tribunal did consider the Applicants’ claims pursuant to complementary protection as well as refugee criteria.  The Tribunal was simply not satisfied that the Applicants met the criteria on the basis of the fact that the Tribunal did not accept their claims. 

41. There is nothing in the Tribunal decision that suggests that the Applicants requested an extension of time to provide additional evidence, nor is there anything to suggest that the Applicants made known to the Tribunal that there was further evidence that they had that was relevant to their assessment.

42. The Applicants have not particularised what paper evidence it is that they had that required an extension of time to provide it, and in fact, after the filing of this application have remained silent notwithstanding that Registrar Belcher gave them the opportunity to put forward written submissions by a certain time; a deadline which they failed to meet.

43. There is nothing then before me that would in any way lead me to think that there had been a denial of natural justice, or that there had been a misapprehension by the Tribunal as to what they needed to look at when looking at s.36(2)(aa). In those premises then, there is nothing in the grounds that would cause me to find a jurisdictional error.

44. Today the Applicants have appeared, assisted by a phone interpreter.  I have asked the Applicant husband, who is in effect speaking on behalf of both he and his wife, as to what else he wanted to tell me. 

45. He claimed to me the discrimination by Muslims is rife in Malaysia; he said surely this has been checked by all the authorities and that in the last elections there were riots and there was discrimination against Chinese people. He claimed that if he is forced to go back to Malaysia, he will be forced to join a religious cult.

46. Nothing in anything that he has said here before me today would allow me to find that there has been any jurisdictional error.  All that has happened here is that the Applicants have given a tale to the AAT and to the delegate but the AAT has not accepted their tale. 

47. Such a conclusion by the AAT is well and truly open on this evidence, and therefore there is no jurisdictional error. 

48. I therefore dismiss the application with costs in the sum of $7,328.00.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:18 October 2018