Esa17 v Minister for Immigration

[2019] FCCA 2215

FEDERAL CIRCUIT COURT OF AUSTRALIA

ESA17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2215

Catchwords:
MIGRATION – Application for judicial review – applicant arrived in Australia on tourist visa – significant delay of eleven years between arrival and application for protection visa – Administrative Appeals Tribunal decision based on credibility of applicant – no matters of principle – application dismissed.

Applicant: ESA17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2274 of 2017

Judgment of: Judge Riethmuller

Hearing date: 1 August 2019

Date of Last Submission: 1 August 2019

Delivered at: Melbourne

Delivered on: 1 August 2019

REPRESENTATION

The Applicant appeared In Person.

Counsel for the First Respondent: Mr McDermott

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant shall pay the First Respondent’s costs fixed in the sum of $7467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2274 of 2017

ESA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 25 September 2017. The Tribunal affirmed a decision of the Delegate not to grant the applicant a protection visa.

2. The applicant is a citizen of Malaysia. He arrived in Australia in February 2004 on a tourist visa. Around eleven years later, on 6 November 2015, he applied for a protection visa. The protection visa application was refused by the Minister’s Delegate and subsequently the review application refused by the Tribunal.

3. In the Tribunal proceedings the applicant appeared twice. On the first occasion the matter was adjourned, as there were some difficulties, which I will discuss later, which led the Tribunal Member to ensure that an adjournment occurred to make sure that the applicant had a proper opportunity to be heard.

4. The nature of the applicant’s claims are set out at paragraph 11 of the Tribunal decision, and summarised conveniently as follows:

   19. The applicant stated that he came to Australia on 23 February 2004 and that he applied for protection at the end of 2015. When asked why it took him so long to do so he said he originally came to Australia with two other Malaysians and they paid an agent to assist them to come to Australia and to obtain visas and work for them. He stated that [the] agent did not do so.

5. The Tribunal had the Delegate’s decision and the written materials before it. The Tribunal ultimately made a decision based upon the credibility of the applicant. The Tribunal noted a number of matters that presented difficulties with the applicant’s credibility, including that the applicant was in Australia for some eleven years before applying for a protection visa, which the Tribunal discussed, saying:

   20. In further discussing the extensive delay between his arrival in Australia and his application for protection, the applicant stated that he engaged three migration agents/lawyers who appear to have cheated him and did not submit applications. He stated that he eventually spoke with a famous lawyer who advised that he was unable to assist him.

   21. The Tribunal asked, given that he wrote the application himself why he had not done so earlier rather than relying on agents who proved to be unhelpful. The applicant said that his English was not good when he initially came to Australia.

   22. The applicant referred to an incident where he was captured by NSW police in 2010. He stated that he was advised by them that he was not an overstayer. The Tribunal asked the applicant why they would say that given his visa ha[d] expired in 2004. He stated he did not know but he assumed that perhaps one of the agents he engaged had submitted an application on his behalf. The Tribunal put it to him it is a reasonable expectation that he should be aware of his migration status and whether he was in Australia legally or not.

6. The Tribunal also noted that the applicant appeared to have falsely claimed that he had burned his passport in 2010, the Tribunal saying:

   24. The Tribunal asked the applicant if he had his passport with him. He did. The Tribunal asked him to confirm the date of expiry and that this was the passport he had travelled to Australia on. The information provided by the applicant from his passport was consistent with the copy of the front page of his passport on the Department’s file.

   25. The Tribunal asked the applicant about information that he provided in a letter to the Department of Immigration dated 17 June 2010 a copy of which he had submitted to the Tribunal. In that letter her wrote that:

   “I have burnt my passport and I only have my Malaysian identity card with me.”

   26. The Tribunal asked the applicant why he had written this as he still retains that passport. He stated that he does not know why he wrote that.

7. The Tribunal also noted some further inconsistencies between what the applicant said and his written statements, at paragraphs 32 to 33, where the Tribunal said:

   32. The Tribunal confirmed with the applicant on two occasions that his claims related to events that occurred at high school.

   33. The Tribunal asked the applicant about a statement in his written claims that “the problem [of stressful times by teachers and classmates] continue to persist in high school” suggesting he had problems earlier then high school. The Tribunal put it to the applicant that this appeared to be inconsistent with his oral evidence that problems only happened at high school. He responded that prior to high school the problems were not so bad. The Tribunal indicated to the applicant that he seemed to be changing his evidence when reference was made to his written claims. He responded that in primary school they just teased you and the teachers were not so harsh. The Tribunal indicated to the applicant once again that it had concerns regarding his credibility as he was changing his evidence as the hearing progressed.

8. As a result of these concerns, the Tribunal found against the applicant on credit, saying:

   44. The Tribunal alerted the applicant that it had a number of concerns regarding his claims and evidence. The Tribunal referred to the lengthy delay between his arrival in Australia and his claim for protection. Despite the fact that the applicant claimed to have engaged a number of agents to assist, the applicant was prepared to remain in Australia illegally for an extended period. The Tribunal noted that he chose not to use an interpreter and he wrote his application in English himself, indicating that he had good English language skills and could have sought out information himself at an earlier time, even if his language skills were not as good as they are now.

   45. The Tribunal had serious concerns about the fact that the applicant was prepared to provide false information to Australian authorities regarding the destruction of his passport. The applicant was unable to provide a plausible explanation for why he had done so in writing.

   46. The Tribunal was also concerned about the inconsistencies between the applicant’s written claims and oral evidence. In addition, the written claims were scant and he was unable to provide further details that satisfied the Tribunal that he suffered serious or significant harm in the past or that there was a real risk that he would do so in the future. The Tribunal did not find the applicant’s evidence convincing and given the significant credibility concerns was not satisfied as to the veracity of his claims. Overall, taking into account the applicant’s claims and evidence, the Tribunal does not find the applicant to be a credible witness.

9. The Tribunal also noted that, with respect to the claim concerning religious freedom that the applicant had made admissions against his case and that the country information was against his case in that respect, the Tribunal saying:

   38. The applicant agreed that he would not have a problem maintaining his faith in Malaysia if he chose to do so.

   39. The Tribunal put significant weight on DFAT’s assessment that Malaysian Christians are generally able to practise their religion without interference. Occasionally they may face a low level of official discrimination but do not face official or societal discrimination or violence on a day-to-day basis.

Grounds

1. The applicant set out four grounds for judicial review in his application, as follows:

   1. The Tribunal failed to consider many vital integers of the case.

   2. The Tribunal failed to consider many vital evidence that are relevant to the case;

   3. The Tribunal deprived the applicant of procedural fairness

   4. The Member failed to do his duty.

Ground 1

1. In support of ground 1, the applicant complained that he was having a difficult time in Malaysia and that he had been traumatised there, before he came to Australia. He expressed dissatisfaction with respect to the decision-maker’s decision in the Tribunal.

2. The applicant was not able to identify any integer or significant fact or circumstance that he says he put to the Member which was not considered by the Member in the decision. 

3. In substance it appears that ground 1 is seeking a “merits review” of the decision by the Tribunal.  It is not open to this Court to engage in “merits review”, and therefore I must refuse this ground for judicial review.

Ground 2

1. The applicant explained that he was concerned that the Tribunal Member did not consider what was happening in the Malaysian community and in particular identified a blog post that he had provided, which appears in the Court Book at page 168.

2. Importantly, the Tribunal Member did specifically refer to the material that had been provided by the applicant. At paragraph 40 of the decision, the Tribunal Member mentions that the submissions of the applicant contain “printouts from various blog sites”, and adds a footnote referring to the folio numbers in the Tribunal file. It is apparent from the court book that page 168 had a folio number within the range of the folio numbers referred to by the Tribunal Member in the footnote. It is therefore clear that the Tribunal Member did have regard to this information.

3. The Tribunal Member also had regard to country information, as appears from the reference in paragraph 42 of the decision.

4. Whilst the Tribunal Member’s reference to the material provided by the applicant is brief, this is no doubt a reflection of the fact that the country information that the applicant relies upon was posted on the internet in 2009 and the decision in this case was being made in 2017, around eight years later.

5. It does not appear to me that in the context of the length of time between the blog post and the decision, nor the matters covered by the blog post, that it is open to the Court to conclude that the Tribunal Member failed to have proper regard to that material simply because there was not a more detailed discussion of the material. The material seems to have been of relatively peripheral relevance in the scheme of the decision, given the time of the blog postings and the date of the decision and the nature of the issues before the Tribunal Member.

6. I am not prepared to draw the inference that the Tribunal Member did not properly consider that material in the circumstances of this case. I therefore find that the applicant has not made out ground 2.

Grounds 3 and 4

1. With respect to grounds 3 and 4, the applicant effectively complains that the Tribunal Member kept asking what had happened to him personally, rather than looking at the overall situation in Malaysia and that the Member did not have sufficient time to enable him to explain his case.

2. The tenor of the decision indicates that the Tribunal Member did look at the situation generally in Malaysia. It does not surprise me that the Tribunal Member would have asked a number of specific questions about what had happened to the applicant in particular, given that cases of this type are generally quite personal, in the sense that it is those facts and circumstances relating to the particular applicant that are most important, and it is therefore important for a Tribunal Member to engage with an applicant to understand any specific events that happened to the applicant, in addition to the general circumstances in the country concerned. This of itself does not appear to me to indicate jurisdictional error.

3. It is also apparent, from the face of the decision, that the Tribunal Member went to some lengths to ensure that the applicant had a proper opportunity to be heard and put his case. For example, the Tribunal Member notes an adjournment of an earlier hearing, and the reasons for that, at paragraph 12, saying:

   12. Following the delegate’s decision dated 25 July 2016 the applicant applied to the Tribunal for a review of that decision. The Tribunal wrote to the applicant on 14 June 2017 inviting him to a hearing on 11 July 2017. At the commencement of the hearing the applicant advised the Tribunal that he had provided his former migration agent with a further submission. It appeared that the Tribunal had not received that submission. The Tribunal adjourned the hearing and provided the applicant with an opportunity to submit the submission prior to an adjourned hearing. That hearing was held on 27 September 2017. The Tribunal took evidence from the applicant on that date.

4. It is also apparent from paragraph 27 that the Tribunal Member asked the applicant for comments with respect to credibility and gave him opportunities to give further explanations: see paragraph 27.

5. On the material before me, and noting that there is no transcript or affidavit alleging any specific incidents, nor any tape recording of the Tribunal hearing, I am not persuaded that the applicant has made out either grounds of 3 or 4.

6. Nor, on the material that has been put before me, am I persuaded that the issues raised by the applicant are of such significance that they warrant an adjournment of this application with directions that the Minister provide further material, such as a transcript or tape recording. 

7. In the circumstances, I therefore find that grounds 3 and 4 have not been made out.

8. As none of the grounds have been made out, I therefore dismiss the application.

[Further argument ensued]

Costs

1. In this matter the applicant has been wholly unsuccessful. Costs ordinarily follow the event in judicial review proceedings. The Minister seeks costs in the scale sum of $7,467.00. It appears to me to be a reasonable fee, having regard to the nature of the case as presented.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:  

Date:  24 September 2019