Evi20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

[2021] FCCA 973

FEDERAL CIRCUIT COURT OF AUSTRALIA

EVI20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCCA 973

File number(s):	SYG 185 of 2021
Judgment of:	JUDGE DRIVER
Date of judgment:	10 May 2021
Catchwords:	MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa –applicant claiming a fear of harm in Malaysia – applicant not believed – general grounds of review – no jurisdictional error.
Legislation:	Migration Act 1958 (Cth), ss 36, 425, 425A
Cases cited:	Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Number of paragraphs:	22
Date of hearing:	10 May 2021
Place:	Sydney
The Applicant appeared in person
Solicitor for the Respondents:	Ms S Balakrishnan of Australian Government Solicitor

ORDERS

SYG 185 of 2021

BETWEEN:

EVI20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	10 MAY 2021

THE COURT ORDERS THAT:

1.The application filed on 5 February 2021 is dismissed.

2.The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

REASONS FOR JUDGMENT
(revised from transcript)

JUDGE DRIVER:

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 6 January 2021.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  In separate proceedings heard immediately before this case, the applicant unsuccessfully challenged the refusal of a bridging visa, by a Tribunal differently constituted. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions, filed on 28 April 2021, which I adopt. 

   BACKGROUND

3. The applicant is a citizen of Malaysia who first arrived in Australia on 11 March 2015 as the holder of an Electronic Travel Authority (ETA).  He has subsequently held two student visas, the second of which was cancelled on 2 May 2019 following the applicant being remanded in criminal custody[1].  On 2 March 2020, the applicant was convicted of various criminal offences and sentenced to 2 years and 6 months imprisonment with a non-parole period of 1 year and 6 months[2]. Upon his release from criminal custody on 6 October 2020, the applicant was identified as an unlawful non-citizen, detained and transferred to Villawood Immigration Detention Centre[3]. The applicant has remained in immigration detention and is currently at Yongah Hill Immigration Detention Centre.

   [1] Court book (CB) 128[2]-[7]

   [2] CB 81, 113

   [3] CB 80

4. On 13 October 2020, the applicant applied for the visa[4]. His claims for protection as set out in his application can be summarised as follows[5]:

   (a)his parents were “powerless” and have no money and they were treated inhumanely and unfairly by Malaysian authorities. His father was detained and beaten by local police for “unreasonable disruption” and his uncle was imprisoned and persecuted in prison. His mother was insulted while working at the family’s “plant garden business”;

   (b)the incidents experienced by the applicant left him with psychological harm;

   (c)the applicant and his mother sought assistance from a solicitor and local authorities, but they did not offer any help;

   (d)he cannot move to another part of Malaysia as Malaysian authorities and its “social system” does not favour the applicant and the authorities are corrupt;

   (e)he fears that he will be “looked down upon by others” and the authorities, and would not be able to access medical assistance, employment or education. The authorities only help and support powerful people and they will not offer help to the applicant as he is young and powerless; and

   (f)the applicant’s family sent him to Australia to “escape poverty and hatred”.

   [4] CB 10-33

   [5] CB 25-27

5. On 22 October 2020, the delegate refused to grant the visa[6].

   [6] CB 52-58

6. On 29 October 2020, the applicant applied to the Tribunal for review of the delegate’s decision[7].

   [7] CB 61-62

7. On 5 January 2021, the applicant attended a hearing before the Tribunal[8]. In his oral evidence, the applicant stated his claims for protection as follows[9]:

   (a)the applicant’s family had a rubber farm and the government tried to buy the family land. As his family refused to sell the land, police were called and his family were harassed.

   (b)the family continued to protest against the sale of their land. Police would come to their property daily and tell the family to leave. The applicant’s father was bashed and detained for 3 days. The applicant’s uncle was also bashed. The applicant said he was bashed by the authorities and assaulted more than 10 times;

   (c)the family had no choice and in 2014 sold their land but did not receive any money in exchange. The family tried to report this to the media.

   [8] CB 71-74

   [9] CB 131[31]-[36]

8. As noted above, on 6 January 2021, the Tribunal affirmed the decision under review[10].

   [10] CB 127-140

   Tribunal decision

9. For the following reasons, the Tribunal found that the applicant was not a witness of truth and not credible:

   (a)whether the applicant departed Australia after his arrival: In his oral evidence the applicant told the Tribunal he had not departed Australia since his arrival in March 2015, when records showed he had departed Australia twice since his arrival. The applicant explained that he understood the question to be whether he had returned to Malaysia. He confirmed he had departed Australia twice to travel to Taiwan and Thailand and only transited through Malaysia on those trips[11];

   (b)the Tribunal found that the applicant was prepared to be evasive in his oral evidence and when caught out on a mistruth, was prepared to persist with further untruths. As the Tribunal perceived the applicant to be flexible in his evidence, the Tribunal found that the applicant had no fear of harm in Malaysia[12];

   (c)the applicant never expressed any fear of harm prior to lodging a protection visa: When the applicant sought review by the Tribunal of the decision cancelling his student visa, the applicant “indicated that he does not fear persecution or significant harm on return to Malaysia”[13]. The applicant explained that he must not have understood the question on that occasion[14].

   (d)upon release from custody, at his Located Person Interview on 6 October 2020 and detention interview on 7 October 2020, when asked whether there were any reasons why he could not return to Malaysia, his response was that his parents were in Australia and he wanted to stay with them[15].  The applicant explained that “he wanted to keep what had occurred in Malaysia and his fear out of his mind”[16];

   (e)the Tribunal noted the applicant had numerous opportunities in which it would have been reasonable for him to express a fear of harm if returned to Malaysia. Accordingly, the Tribunal did not accept that the applicant did not express any of this claimed fear because he had blocked it out of his mind[17];

   (f)delay in applying for a protection visa: When the Tribunal asked the applicant why he only lodged a protection visa application in October 2020, the applicant said he did not know about protection visas until 2018 or 2019[18].  The Tribunal observed that his parents applied for protection visas on 10 June 2015 and that he had lived with his parents while in Australia. The applicant explained that the migration agent said his parents were too old to apply for a student visa and suggested that they instead apply for a protection visa[19];

   (g)the Tribunal was not persuaded by the applicant’s explanation for the delay in applying for a protection visa. Rather, the Tribunal was satisfied that the applicant lodged a protection visa application as a means to remain in Australia as an alternative to the planned permanent residency, which he hoped to achieve through visas that may result from a student visa[20];

   (h)the applicant did not declare his previous criminal offending in his visa application: The Tribunal observed that the applicant did not declare criminal offending in his visa application[21]. The applicant explained that he must have misunderstood the question on the application[22]. The Tribunal was satisfied that the applicant sought to hide this information as it may adversely impact his visa application. In this regard, the Tribunal found that the applicant was prepared to be less than honest if he believed that would assist him to achieve a positive migration outcome[23].

   [11] CB 132[41]

   [12] CB 135[54]-[55]

   [13] CB 133[42]

   [14] CB 133[42]-[43]

   [15] CB 90, 114

   [16] CB 133[44]-[45]

   [17] CB 135[56]

   [18] CB 130[27], CB 131[30]

   [19] CB 133[46]

   [20] CB 135[53]

   [21] CB 27, 130[25]

   [22] CB 131[28]

   [23] CB 136[58]-[59]

10. The Tribunal did not accept that the applicant’s family’s land had been appropriated by the government, that the applicant or his family had ever been threatened or harmed in the past, that the applicant left Malaysia because of this harm and refused to return to Malaysia because of this fear, that the applicant would be destitute or harmed because of alleged corruption in Malaysia or that he would be harmed because Malaysia is different to Australia in terms of human rights and freedoms[24].  The Tribunal rejected the applicant’s claims in their entirety[25].

    [24] CB 136[61]

    [25] CB 136[63]

11. Based on the above, the Tribunal was not satisfied that the applicant met the requirements under s 36(2)(a) or the complementary protection requirements under s 36(2)(aa) of the Migration Act 1958 (Migration Act)[26].

    [26] CB 137[64]-[67]

    THE CURRENT PROCEEDINGS

12. These proceedings began with a show cause application, filed on 5 February 2021.  The applicant continues to rely upon that application. 

13. There are three grounds in it (errors in original):

    I’m fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.

    The AAT Member failed to give proper advice regarding the applicant current refused of application for a Bridging visa on the day of interview.

    Tribunal acknowledges that applicant has expressed, contrition and remorse for his past behaviour and impact his had upon his family and Australian society.

14. The application is supported by a short affidavit filed with it which I received.  I also have before me the Court book filed on 24 March 2021.

15. The applicant denied receipt of the Minister’s submissions.  In the circumstances, I invited the Minister’s solicitor to explain the submissions, and I then invited a response from the applicant.  He told me that he had nothing to say.  I agree with the Minister’s submissions concerning the grounds of review advanced, and I adopt them.

16. By ground 1 the applicant asserts that he has a well-founded fear of persecution. The ground does not identity any jurisdictional error in the Tribunal’s decision. The ground merely indicates disagreement with the Tribunal’s decision, inviting impermissible merits review. Ground 1 fails.

17. Ground 2 contends that the Tribunal failed to give advice regarding the refusal of the applicant’s bridging visa application.

18. To the extent that the applicant asserts that the Tribunal should have taken into consideration the refusal of his bridging visa application, that was neither a relevant consideration that the Tribunal was bound to take into account[27] nor relevant in any way to whether the applicant satisfies the criteria for a protection visa. In its chronology of events concerning the applicant, the Tribunal noted that on 27 October 2020, a differently-constituted Tribunal affirmed the decision refusing the applicant’s bridging visa application[28].  Ground 2 fails.

    [27] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

    [28] CB 128[12]

19. Ground 3 does not identify any jurisdictional error in the Tribunal’s decision. The applicant’s contrition and remorse were taken into account in the Tribunal’s decision in SYG2609/2020 in the context of deciding whether the applicant would abide by visa conditions. However, the applicant’s contrition and remorse for his criminal offending were neither raised by the applicant, nor were these matters relevant to whether he met the criteria for a protection visa. Ground 3 fails.

20. No jurisdictional error is apparent in the Tribunal’s decision. The Tribunal complied with its procedural fairness obligations under Part 7 of the Migration Act. The Tribunal invited the applicant to a hearing in accordance with s 425(1) of the Migration Act and pursuant to a valid invitation[29]. The applicant was on notice of the determinative issue as the delegate also did not accept his claims. On 5 January 2021, the applicant appeared before the Tribunal to give evidence and present arguments, assisted by an interpreter. As to the Tribunal hearing, the decision record shows that the applicant was afforded a number of opportunities to put his claims and to clarify any concerns of the Tribunal[30]. The Tribunal’s adverse findings were open to it for the reasons which it gave.

    [29] s 425A (CB 68)

    [30] CB 130[26]-[46]

    CONCLUSION

21. The application filed on 5 February 2021 is dismissed.

22. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       20 May 2021