Evg17 v Minister for Immigration and Border Protection

[2021] FedCFamC2G 279

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EVG17 v Minister for Immigration and Border Protection [2021] FedCFamC2G 279

File number(s):	SYG 3392 of 2017
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	3 November 2021
Catchwords:	MIGRATION – Application to review decision of the Administrative Appeals Tribunal – no jurisdictional error established – application dismissed.
Legislation:	Migration Act 1958 (Cth) s.5H, 36
Division:	Division 2 General Federal Law
Number of paragraphs:	25
Date of hearing:	3 November 2021
Place:	Parramatta
Appearing for the First Applicant:	In person
Appearing for the Second Applicant:	In person with the assistance of an interpreter
Appearing for the First Respondent:	Mr Dadgar
Solicitor for the First Respondent:	HWL Ebsworth Lawyers

ORDERS

SYG 3392 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EVG17

First Applicant

EVH17

Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	3 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The Application for Judicial Review filed 6 November 2017 is dismissed.

2.The First and Second Applicants are to pay the First Respondent’s costs fixed in the amount of $5,600.

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
(Ex Tempore; Revised from Transcript)

JUDGE OBRADOVIC

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal dated 17 October 2017.

2. The first applicant is a citizen of Malaysia who arrived in Australia on 19 February 2016. The second applicant is the first applicant’s son. On 13 May 2016, almost three months after arriving in Australia, the applicants applied for protection visas. They claimed fear of persecution on the basis that the first applicant had spoken out against the Malaysian Government, that he had organised or helped organise protests and had consequently received threats. On 9 June 2016, the applicants’ visa application were refused by a delegate of the Minister as the applicants had not satisfied the delegate that they were refugees as defined by section 5H(1), and did not meet the criteria pursuant to sections 36(2)(a) and (aa) of the Migration Act 1958 (Cth) ( “the Act”).

3. On 9 July 2016, the applicants applied for a review of the delegate’s decision to the Administrative Appeals Tribunal. The following then occurred:

   (1)The hearing was scheduled for 24 March 2017 and the applicants were invited to attend;

   (2)The applicants were also invited to comment on and respond to information, in particular, the Tribunal noting that the delay in lodging the application was not consistent with the applicants’ alleged departure from Malaysia because of a fear of persecution;

   (3)The applicants responded advising as follows:

   As a newcomer or foreigner in this country, we do not know anything about Australia immigration law.  Moreover, as a stranger in this country, we do not know anybody to seek for the informations. The situation is getting worst when I fall sick due to stress of the persecution, and the changing of weather, climate and foods.  Until several months later, from Malaysians that I got to know in Australia, I was introduced to our migration agent, JP Australia Migrant Solutions.

   (4)The hearing before the Tribunal occurred on 24 March 2017.  Following the hearing, the Tribunal invited the applicants to provide any country information in support of their claims, which the applicants responded to;

   (5)A second hearing was scheduled for 27 September 2017 and, following that second hearing, after they attended the hearing, the applicants were invited to comment on or respond to information about at least five other protection visa applications being substantially similar to the applicants’ applications;

   (6)The applicants responded that they had paid a migration agent to prepare their application and that the agent might have used their story in other applications; and

   (7)On 17 October 2017, the Tribunal affirmed the decision under review. 

4. The Tribunal was not satisfied that the first applicant or his family, faced a real chance of persecution on account of the applicant’s political views. The Tribunal properly and correctly, in the Court’s view, set out the relevant criteria for a protection visa, and the Tribunal then considered the applicants’ claims and their evidence. It identified the issue for determination as whether the applicants have a well-founded fear of being persecuted for one or more of the five refugee reasons in Malaysia, and if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australian to Malaysia, there is a real risk that they will suffer significant harm.

5. The application for judicial review, which was filed on 6 November 2017, raises three grounds.  The first ground of judicial review was as follows:

   The AAT made a jurisdictional error when it failed to consider each integer of my claim or failed to take into account the whole of the oral and written evidence in determining whether I have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee Convention in Malaysia  and if not whether there are substantial grounds for believing that, as a necessary and foreseeable consequences of me being removed from Australia to Malaysia, there is a real risk that I will suffer significant harm.

   The applicants provided a number of particulars in relation to ground 1, which the Court will address later in these reasons for judgment.

6. The second ground of judicial review was as follows:

   The AAT made a jurisdictional error when it discarded all the oral and written submission without giving any solid evidence of cumulative credibility concern in finding of reasons. 

   Once again, particulars were provided in support of this ground, which will be addressed later in these reasons for judgment.

7. The third ground of judicial review was as follows:

   The tribunal failed to apply the correct test in relation to the complementary Protection Provision contained in section 36(2)(aa) of the Migration Act 1958. The Tribunal made a jurisdictional error when it did not follow Rules of Real Risk Test of persecution and harm.

   Once again, particulars were provided in support of that ground, which will be addressed later in these reasons.

8. At the hearing today, both the first and the second applicant were given the opportunity of making submissions to the Court, in relation to each of the three grounds contained in the application for review.

9. In addition to addressing the Court in relation to the three grounds, the first and the second applicant raised a new issue, which was not contained in the application, which may best be described as an assertion that the migration agent who acted for the applicants, was somehow involved in fraud.

10. In relation to the last matter, that is, the way that the migration agent acted, the applicants said that they were tricked by the migration agent. This is a new assertion, not found in anything that the applicants said to the Tribunal.  It is not supported by any evidence and it was not a matter that was raised either before the Tribunal or in the application for judicial review.

11. The first applicant told the Court that his story to the migration agent was copied or used by the migration agent in other applications for protection visas and that all the other claims that were identical to the applicant’s claims were from people who stayed in the same house as the applicant.  That, once again, is a new matter that is not the subject of any evidence except for some submissions from the bar table, it was not raised before the Tribunal and is not contained in any of the grounds of application for judicial review.  At their highest, the matters raised by the first and the second applicant with the Court today speak of poor communication and poor representation by the migration agent, and do not speak of any migration agent fraud to the Tribunal or otherwise. At their highest, these matters as raised are not capable of amounting to jurisdictional error.

12. In relation to the three grounds contained in the application for review, it is important to consider the Tribunal’s decision in order to be able to address the grounds for judicial review.  It is apparent from reading the Tribunal’s decision that the Tribunal did not believe the first applicant’s claims, his stories or the matters that he said to the Tribunal during the hearing or in his written answers and submissions provided to the Tribunal. The second applicant’s evidence was given little to no weight by the Tribunal for reasons which were explained in the Tribunal’s reasons; it was evidence that was considered, but disregarded.

13. The Tribunal was concerned about the vagueness and generality of the first applicant’s claims, his inability to support the claims by relevant evidence, and also the vagueness with which he gave the evidence, not being able to remember important events and/or the years when those events occurred.  In particular, the Court notes that matters at paragraphs 40, 41, 42, 43 and 44 of the Tribunal’s decision, namely, that in not believing the applicant, the Tribunal took into consideration that the applicant had read his story in English.  He confirmed that it was correct and the only thing that he wanted to change was that he would be killed.  The Tribunal therefore did not accept that the applicant did not know what was in his written application. 

14. Secondly, the Tribunal noted that the claims made by the applicants were substantially similar to a number of claims made by other people seeking protection visas which had earlier file numbers. Therefore, the Tribunal rejected the applicant’s submissions that these claims were, in fact, his and that others had copied him.  The Tribunal also was not satisfied that the first applicant had been telling the truth about his alleged involvement in political parties, demonstrations and gatherings.  It was concerned about the applicant’s hesitancy and vagueness in relation to such evidence, and as already mentioned, that he was unable to recall important years and events. 

15. The Tribunal formed the view that the first applicant was making up his claims as he went along, rather than speaking from personal experience, and the Tribunal was not satisfied that the applicant was involved in the protest as he alleged and it did not accept his evidence that he was a member of a particular organisation or that he held anti-government political opinion or that he expressed that anti-government political opinion in the future.  The Tribunal was also not satisfied that either the applicant or his family had been targeted or that his son had been beaten in the manner alleged.

16. In relation to ground 1, the Court finds that the applicant has not established any jurisdictional error. The particulars which have been provided in the application for review, together with the ground, together with the oral submissions made today by the first and the second applicant do not identify which claims the Tribunal is alleged to have failed to consider. Indeed, the first applicant conceded today that his real complaint was that the Tribunal did not believe him that what he was saying was the truth.

17. What the particulars of ground 1 do is to assert that the applicants’ claims are true and correct, that the Tribunal mistook or misunderstood the applicants’ claims and that the Tribunal did not consider recent information about political activist situation in Malaysia. On a fair reading of the Tribunal’s decision, the Tribunal did do all of the things which the applicant asserts that it did not do. There is nothing in the submissions made by the applicant or in the application which identifies what precisely the Tribunal failed to consider not by reference to the application, the material before the Tribunal or anything its reasons.

18. Ground 1 is really a complaint about the findings that the Tribunal made, and in reality, it is a merits review application. 

19. The Court finds that the Tribunal engaged with the applicants’ claims and considered the evidence, as previously noted.  The fact of disagreement with the Tribunal’s decision by the applicant does not of itself give rise to a jurisdictional error.  The applicants have not made out ground 1.

20. In relation to ground 2, once again, the particulars which are provided in the application for review note that there was inconsistencies found by the Tribunal between what the applicant had said to the department and in his written claims, that the Tribunal misunderstood most of the facts and that it mistook the facts that the applicant had made. The applicants also assert the Tribunal erroneously made the issue of credibility by finding that the applicant had fabricated the claims. The applicant asserted that he was not given the chance to present new evidence or expansion of his arguments before the Tribunal and that he forwarded all evidence in support of the claims.

21. The applicants assert that the Tribunal misconstrued the facts and that whatever the applicants had said to the Tribunal was true and correct. Once again, this is a complaint about the applicants being disbelieved by the Tribunal and not a jurisdictional error point. The applicants assert that the Tribunal discarded relevant material. Notwithstanding the particulars which are provided in the application and the submissions that were made today, the applicant has still not identified with sufficient particularity and detail what precisely the Tribunal is said to have discarded and how that had the necessary effect of infecting the Tribunal’s decision with jurisdictional error, including legal unreasonableness.

22. As noted earlier, the Tribunal considered the claims and the evidence of the applicants and it did not believe the applicant, for reasons which are set out in the Tribunal’s decisions.  The Tribunal found that the applicant was making up his claims and not speaking from personal experience.  That was a finding which was open to the Tribunal on the evidence before the Tribunal.  The Tribunal has a duty to review and not to inquire into whether the applicants’ claims might be better put or supported by other evidence. The Tribunal did not have an obligation to look at material that was not before it and/or to invite the applicants to provide other material which might support the applicant’s claim. Ground 2 is not made out.

23. In relation to ground 3, the applicants allege that the Tribunal failed to apply the correct test.  The applicants provide a number of particulars in support of that application by asserting that the jurisdictional error arose as a result of the applicants having a genuine fear of persecution because of the first applicant’s political opinion and that this was somehow ignored by the Tribunal.

24. There is also an assertion once again that the Tribunal did not consider the applicants’ claims as genuine and disbelieved the applicants in their claims.  This is once again a merits review application or, at best, some vague assertion that the way that the Tribunal dealt with the evidence and the submissions amounted to legal unreasonableness in all of the circumstances.  The Tribunal did not, on a fair reading of its decision, fail to apply the correct test.  Indeed, as already noted, it had identified what the test is and applied the correct test to the facts as it found them.  The Tribunal found that the applicants’ claims were fabricated and not credible.  Ground 3 is not made out.

25. The application for judicial review must therefore be dismissed.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated:  22 November 2021