ENR18 v Minister for Home Affairs

[2019] FCCA 1059

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENR18 v Minister for Home Affairs & Anor [2019] FCCA 1059

Catchwords:
MIGRATION – application for a protection visa - applicant expressed a desire to only remain in Australia temporally – adverse credibility findings based upon contradictions and inconsistencies – application dismissed.

Legislation:

Migration Act 1958 ss.5J(1)(a), 36(2), 424, 476(1).

Cases cited:

Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant: ENR18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 909 of 2018

Judgment of: Judge Egan

Hearing date: 3 April 2019

Date of Last Submission: 3 April 2019

Delivered at: Brisbane

Delivered on: 3 April 2019

REPRESENTATION

Applicant: In person

Solicitor for the First Respondent: Mr Kyranis of Sparke Helmore

ORDERS

1. The application for review filed on 3 September 2018 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 909 of 2018

ENR18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. On 6 August 2016 the applicant, a citizen of Malaysia, arrived in Australia as the holder of an electronic travel authority (class UD) (subclass 601) visa.  On 18 October 2016 the applicant applied for a protection (class XA) (subclass 866) visa.  On 22 March 2017 the delegate refused to grant the visa.

2. On 29 March 2017 the applicant applied to the Tribunal for review of the delegate’s decision.  On 19 April 2018 the Tribunal invited the applicant to provide further information to support her claims.  In response, the applicant provided an untranslated document.  On 11 July 2018 the Tribunal invited the applicant to attend a hearing scheduled for 7 August 2018.  On 7 August 2018 the applicant appeared before the Tribunal to give evidence and present arguments.  She was assisted by an interpreter in the Tamil and English languages.

3. At the hearing before the Tribunal the applicant was assisted by an interpreter in the Tamil and English languages.  On 20 August 2018 the Tribunal affirmed the decision of the delegate not to grant the visa.  On 3 September 2018 the applicant filed an application for review of the decision of the Tribunal.

4. This proceeding was brought pursuant to the provisions of section 476(1) of the Migration Act 1958 (Cth) (‘the Act’).

5. The application for review sets out 11 grounds which are as follows: 

   “1. I, am a citizen of the Malaysia and of Indian ethnicity, fear harm on the basis of Domestic violence & my gender (female), couldn't tolerate and couldn't stand-up against my husband in Malaysia , applying for Judicial Review at Federal circuit court under the s.476 of the Migration Act 1958 related to federal circuit court regulations.

   2. I had claimed that I would be at risk upon return to Malaysia because I do have threat from my husband who is homosexual as he had married me with both side parents acceptance, I did not know his sexual activities till I came to know. Once I had opposed and showed dislike on him, he had begun threatening me. After my exit from him he had started searching for me, so that I had to exit the Malaysia.

   3. I have made lot efforts to escape with in Malaysia, but I could not do due to there is no one help me in this matter. That is the reason I have absconded from Malaysia to protect my life, this is how I have decided to come to Australia.

   4. I have tried my best to explain everything to tribunal and immigration officer, with my language ability and my other inferiority complex made me lag in explaining the claims while tribunal member questioning the claims.

   5. The AA T failed to deal with the full story & claims of my claim and tribunal has applied the incorrect analysis on my complementary protection claims according to my situation.

   6. While AAT dealing with my claims under complementary protection by focussing on whether I am strong enough to stay in Malaysia or Malaysia is comfortable place for women the women who have such issues , also Malaysia is muslim country where low tolerances on divorce request from women side, on these factors tribunal failed to consider or examine , so that I claim tribunal decision has jurisdictional error.

   7. The tribunal failed to apply the "real chance" test to my claims under complementary protection. Where I can say tribunal decision hasn't been made under the procedural fairness.

   8. The Tribunal, took wrong references (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at169-70) while assessing my review application, analysis on my complementary protection claims is not right according to my view. There is no weight given by the Tribunal to the proposition that I would not be "targeted again" by my husband and his family members.

   9. I claim that tribunal member did not correctly construe and consider claims made by me as there is material before tribunal and delegate, But my life threat in Malaysia is true, I do have well-founded fear. I will be facing the torture with my husband and all his family relatives, and my family members in Malaysia are hopeless to me in helping. Also government help is minimal in domestic violence matters

   10. I hope court will understand my matter, also I did not have the money to hire solicitor. So that I am lodging on my own by taking somebody help in preparing the application, but I wish to hire solicitor soon.

   11. That is the reason I request the court accept my application, thank you.”

6. At [14] of the reasons of the Tribunal, the Tribunal recorded that, for the purposes of the hearing, it had its own file, the departmental file relating to the application before it, the applicant’s protection visa application forms, the departmental delegate’s visa refusal decision, the application for review submitted on 29 March 2017, the applicant’s correspondence responding to the section 424(2) invitation of 19 April 2018 and other departmental movement and administrative records.

7. At [15] of the reasons of the Tribunal, the applicant’s claims for protection were recorded as follows:

   “a. she is a ‘sterile’ female (unable to have children) who suffered revenge from her husband, his family and his friends due to this circumstance;

   b. her husband had several extra-marital affairs with other women, he tortured her (mostly) psychologically as did his family and friends;

   c. she cannot return to Malaysia because her relatives are there;

   d. she cannot seek State protection in Malaysia, noting she attempted to obtain a divorce in the Sharia Courts but one was not granted; and

   e. she cannot relocate within Malaysia because her husband, his family and friends can locate her.”

8. At [16] – [37] of the reasons of the Tribunal, the Tribunal recorded the relevant history given to it by the applicant relevant to her claims for protection.  At [37] of the Tribunal reasons, it was recorded that the applicant advised the Tribunal that she no longer planned to stay in Australia but wanted a “temporary stay” until her troubles settled.  It was recorded that the applicant noted that there was a new Prime Minister in Malaysia who she wanted to give “some more time”.  The applicant confirmed that she wanted to remain in Australia temporarily.

9. It was recorded that the Tribunal raised with the applicant that her oral evidence indicating that she only wanted a temporary stay in Australia might tend to undermine the genuineness of her claims for protection, recording that the applicant was then invited to comment in relation to same. The applicant was recorded as replying that when given a bridging visa she was told it was a temporary visa and that is why she made the application.

10. The Tribunal recorded that the applicant was provided with the opportunity to provide any further evidence that she wished.  The applicant confirmed that she had no further evidence to submit.

11. At [38] of its reasons, the Tribunal noted its obligations in relation to persons who claim to fear persecution for a particular reason. It discussed the genuineness of any such fears, as well as whether such fears were well-founded or not, so as to bring the applicant within the provisions of the Act.

12. At [39] of its reasons, the Tribunal recorded that it had very carefully considered the applicant’s claims and the evidence before it.  It recorded that the Tribunal, during the course of the hearing, had developed serious concerns with the credibility of the applicant’s claims that she would face harm if she was returned to Malaysia.

13. There were inconsistencies found between the applicant’s initial written claims and her oral evidence.  It was recorded that the Tribunal had the benefit of observing the applicant provide her oral evidence and that it had formed the impression that the applicant was vague and evasive with respect to how her application for protection came to be completed, and also in relation to her response to apparent inconsistencies in her account provided to the tribunal as opposed to her earlier written claims.

14. The Tribunal formed the impression that the applicant was an unreliable witness.  The Tribunal found it implausible, to the point of being fanciful and far-fetched, that the applicant, by chance, had met a man named Muhammad, who had assisted her to write out her claims for protection, in circumstances where she had later departed so dramatically from what had been recorded.  It was noted that the applicant could provide no plausible reasons why the man she had met might have been responsible for such dramatic errors.  It was recorded that the person who had allegedly assisted the applicant had now departed Australia.

15. At [40] of its reasons, the Tribunal found that the applicant knew the contents of her written claims for protection, and that she knew that her oral evidence departed from such claims in several key respects.  The Tribunal noted, for example, that the purported homosexual videos on her husband’s mobile telephone, his homosexual partners, her good health, her alleged broken leg and her mother’s injuries as a result of being targeted by her husband’s motorcycle, were all significant departures from her initial written claims.  The Tribunal found that those departures arose because the applicant had made untruthful claims and had not been able to maintain a consistent narrative in advancing her claims for protection.

16. The Tribunal found that the applicant lacked credibility as a witness.  After careful consideration, the Tribunal did not accept that the applicant had ever faced any harm, or that there was a real chance of serious or significant harm to her if she was returned to Malaysia for any reason, including from violence (physical or psychological) at the hands of the applicant’s husband, any of the husband’s family members, or, on her side of the family, any friends, or from any person at all including Malaysian authorities.  The Tribunal formed the view that the applicant had fabricated her claims for protection in order to remain in Australia.  The Tribunal did not accept the veracity of the applicant’s claims for protection and so found.

17. At [42] of its reasons, the Tribunal found that it was not satisfied that the applicant had a well-founded fear of persecution for any one of the reasons mentioned in section 5J(1)(a) of the Act, or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Malaysia, there was a real risk that she would suffer significant harm if returned to that country.

18. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia owed protection obligations pursuant to section 36(2)(a) of the Act. The Tribunal was further not satisfied that the applicant was a person in respect of whom Australia had protection obligations pursuant to the provisions of section 36(2)(aa) of the Act. The Tribunal found that the applicant’s claims about needing protection were without foundation.

19. A consideration of the grounds of review reveals that the applicant has failed to establish any jurisdictional error on the part of the Tribunal.  The grounds constitute submissions and invite the Tribunal to engage in a merits review – something that it is not entitled to do.  The Tribunal dealt with the applicant’s claims and evidence carefully.  Adverse credibility findings made by the Tribunal were based on rational grounds and were open and logically probative.

20. The applicant has further failed to identify the way in which the Tribunal was asserted not to have applied or analysed the provisions of section 36(2)(aa) of the Act. The Tribunal dealt with the applicable law and it has otherwise not been demonstrated that the Tribunal erred in its analysis of either the law or the facts before it.

21. The applicant has also failed to demonstrate any procedural unfairness on the part of the Tribunal. The Tribunal conducted a fair hearing and gave the applicant every opportunity to put her case. It did so in accordance with the provisions of the Act. It observed its procedural fairness obligations.

22. The grounds are otherwise without particularity or alternatively are so wide as to be incapable of understanding.

23. It has not been demonstrated that the Tribunal failed to make an obvious inquiry about a critical fact. [1]

    [1]        Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at [25] – [27] inclusive.

24. It cannot be said that no other rational or logical decision-maker could not have made the same decision as the Tribunal.  As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

    “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

25. Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

26. The application is without merit.  No jurisdictional error has been established on the part of the tribunal. 

27. The application for review is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 17 April 2019