Exh17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 352

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EXH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 352

File number(s):	SYG 3423 of 2017
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	4 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 430
Division:	Division 2 General Federal Law
Number of paragraphs:	31
Date of hearing:	4 November 2021
Place:	Parramatta
Appearing for the Applicant:	In person with the assistance of an interpreter
Appearing for the First Respondent:	Ms Nash
Solicitor for the First Respondent:	Sparke Helmore Lawyers

ORDERS

SYG 3423 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EXH17
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	4 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The name of the First Respondent is amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

THE COURT FURTHER ORDERS THAT:

2.The Application for Judicial Review filed 9 November 2017 is dismissed.

3.The Applicant is to pay the First Respondent’s costs fixed in the amount of $5,000.

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 (“the Tribunal”) dated 16 October 2017.  The applicant appears self-represented, and is assisted by an interpreter.  The applicant was given the opportunity of making oral submissions to the Court in relation to the grounds which he raises in his application, and, in summary, did not make any submissions in support of the grounds for judicial review.  That is because the applicant says that he does not know anything about the law and he does not know what to say, and that he trusts that the Court will make the right decision.

2. The relevant chronology is as follows:

   a.The applicant is a citizen of Malaysia who arrived in Australia on 18 September 2015.  He arrived as the holder of an Electronic Travel Authority (subclass 601) visa. 

   b.On 9 October 2015, the applicant applied for a protection visa, class XA, subclass 688. 

   c.On 4 May 2016, a delegate of the Minister, being the first respondent in these proceedings, refused to grant the visa. 

   d.On 24 May 2016, the applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision. 

   e.The Tribunal hearing occurred on 16 October 2017, to which the applicant was invited and which he attended. 

   f.On 16 October 2017, the Tribunal affirmed the decision of the delegate which was under review. 

3. The applicant now brings an application for judicial review of that Tribunal decision.  He raises three grounds in his application. 

   a.The first ground is as follows: 

   AAT made a ruling to be unconvincing in paragraph 22.

   b.The second ground being that:

   The AAT gave no reasons to refuse my application.

   c.And the third ground, being:

   I told AAT that I could be found by gangsters in Kuala Lumpur, but AAT didn’t care about the risk.  Just say that I on live in Kuala Lumpur means that I am not in risk.  It’s unfair.

4. The reasons of the Tribunal go for some 11 pages.  They are written, detailed and articulate.  The reasons go through the applicant’s claims, his evidence, and they make findings which are explained fully in the reasons for the decision.  The applicant could not be in any doubt as to why his application for the visa was refused. 

5. The Tribunal’s reasons set out in a number of paragraphs the relevant criteria for a protection visa.  They identify the mandatory considerations and then go through in some detail the claims and the evidence of the applicant before the Tribunal and in his application.  The findings and reasons of the Tribunal commence at paragraph 17 and go through to paragraph 32.  The conclusions are set out at paragraphs 33 to 37.

6. At paragraph 18, the Tribunal considered and found that the applicant’s oral evidence was in significant respects inconsistent with his written claims.  The reasons note that the applicant told the Tribunal that, when he moved to Kuala Lumpur, he did not experience harm from gangsters, but struggled to find employment, which was in contrast to his written claim that he was beaten by Malay people when he moved to Kuala Lumpur. The applicant was asked certain specific things by the Tribunal, and he provided answers which were not consistent with his written claims.  When these matters were pointed out to the applicant, he said that he did not realise that he was being asked if he was beaten while living in Kuala Lumpur.  The Tribunal, in essence, did not accept the applicant’s explanation as to the inconsistencies in relation to what he told the Tribunal and what was contained in his written claim in relation to what occurred when he was living in Kuala Lumpur. 

7. The Tribunal, in paragraph 19, identified a secondary concern in relation to inconsistencies between the written claim and what was said to the Tribunal during the hearing in relation to whether or not the applicant had reported certain matters to the police.  The Tribunal noted that the applicant’s evidence shifted when the inconsistencies were put to him by the Tribunal. 

8. The Tribunal also considered at paragraph 20 the applicant’s conduct in travelling in and out of Malaysia to Thailand in the months after he claimed that he was assaulted by gangsters and before he travelled to Australia.  The Tribunal considered that such travel undermined the applicant’s claims that he was afraid that, if he returned to Malaysia, he would be harmed by gangsters.  The Tribunal found that the applicant’s return to Malaysia from Thailand on two occasions in 2015 cast doubt on the applicant’s suggestions that he was trying to hide in Thailand. 

9. Paragraph 21, the Tribunal noted that the applicant was asked certain things during the hearing, and that he conceded that he could live in Kuala Lumpur, but claimed that he could not live in his family home.  And that if he returned to Malaysia, he could find a job, but he wanted his children to grow up in Australia and not face persecution from the Malaysian people. 

10. In paragraph 22 of the decision, the Tribunal considered the fact that the applicant’s wife and children remained living in the family home after the applicant had left Malaysia, and that this suggested to the Tribunal that the applicant’s family were not of any adverse interest to gangsters in Malaysia.  The Tribunal found that the applicant’s suggestion that his family, who remained in the family home after the applicant had travelled to Australia, were at risk from gangsters in Malaysia to be an unconvincing claim. 

11. In paragraph 23 of the reasons, the Tribunal did not accept that the applicant left Malaysia because he was in need of Australia’s protection.  And for reasons which were explained earlier in the Tribunal’s reasons, it formed the view that he had not told the truth about why he had left Malaysia or why he did not wish to return to Malaysia.  In other words, the Tribunal found that the applicant was not credible in his claims and that he told untruths. 

12. The Tribunal, at paragraph 24, did not accept that the applicant was ever targeted by gangsters who demanded money from him, or that he was assaulted by a group of gangsters while working in a shop, or that those gangsters damaged and/or robbed the shop, or that he had been followed or beaten by gangsters for any reason, including reasons relating to his Chinese ethnicity. 

13. The Tribunal also considered under the heading Chinese Malaysian the claim as to the applicant’s ethnicity being Chinese, and accepted that he is of Chinese ethnicity.  It accepted for the purposes of the application that the applicant is of a Christian faith, and considered that claim, or that part of the claim at paragraphs 27 to 30 of the decision, and it also considered whether or not the applicant would encounter economic hardship if he did return to Malaysia at paragraphs 31 to 32 of the decision. 

    Ground 1

14. In relation to the specific grounds brought by the applicant, as already noted, ground 1 is as follows: 

    “The AAT made a ruling to be unconvincing in paragraph 22.” 

15. Ground 1 is not a proper ground.  It does not assert any jurisdictional error.  Indeed, it does not assert any error at all.  What it does is it simply notes the findings of the Tribunal at paragraph 22 of its decision, which has been already referred to by the Court in these reasons for judgment. The ground is at most an attempt to engage the Court in impermissible merits review. When the Court says it is at most an attempt at impermissible merits review, that is giving the applicant a significant benefit of the doubt in terms of the ground as articulated. 

16. As already noted in the summary given of the Tribunal’s decision, at paragraph 22 of the Tribunal’s decision, the Tribunal considered the fact that the applicant’s wife and children remained living in the family home after the applicant left Malaysia.  And that the applicant’s children remain living in the family home, noting that the applicant’s wife has now travelled to Australia, and that these were reasons as to why the applicant’s claim or suggestion that his family was at risk from gangsters in Malaysia was unconvincing.  This finding was open to the Tribunal on all of the evidence before the Tribunal and based on its reasoning.  There is nothing in the Tribunal’s reasoning in relation to this finding at paragraph 22 that is unreasonable or illogical. 

17. Therefore, Ground 1 is not made out.

    Ground 2

18. In relation to ground 2, which is that the Tribunal gave no reasons to refuse the application, as is clear from what has been said in these reasons for judgment, the Tribunal, as it was obliged to do pursuant to section 430 of the Migration Act 1958 (Cth) (“the Act”), provided reasons in writing which were detailed and articulate. Ground 2 is a nonsense.

19. The Tribunal’s reasons in this case set out the background to the matter at paragraphs 1 to 3. It detailed its consideration of the evidence at paragraphs 10 to 32. It correctly identified the applicable statutory provisions at paragraphs 4 to 8. And it assessed whether the applicant was a person in respect of whom Australia had protection obligations under the relevant sections of the Act.

20. Therefore, Ground 2 is not made out.

    Ground 3

21. Ground 3, as noted, is as follows:

    I told the AAT that I could be found by gangsters in Kuala Lumpur, but AAT didn’t care about the risk.  Just say that I live in Kuala Lumpur means that I am not at risk.  It’s unfair.

22. The applicant’s assertion in ground 3 is inconsistent with what occurred before the Tribunal, as noted in the reasons for judgment.  The Tribunal did not find that just because the applicant lived in Kuala Lumpur meant that he was not at risk. 

23. As noted earlier in these reasons for judgment, the Tribunal was concerned about the applicant’s inconsistencies in his written claims compared to what he had said to the Tribunal during the hearing, and his attempts at explaining those inconsistencies were not accepted. 

24. The last sentence of ground 3, namely, “it’s unfair”, is telling.  What the applicant does is that he quibbles with the findings, that is, the findings of the Tribunal. At its highest, this is a ground which raises argument as to the merits of the Tribunal’s decision.  It asks the Court to engage in impermissible merits review. 

25. The Tribunal did not find the applicant to be credible.  It did not find his claims to be credible.  Those findings were clearly open to the Tribunal on the evidence before it and for the reasons that it gave.  Paragraphs 11 to 16 of the Tribunal’s decision set out in detail the evidence the applicant gave before the Tribunal.  And as noted in paragraph 17 of the Tribunal’s decision, it was necessary for the Tribunal to make findings of fact on relevant matters, which in turn required the Tribunal to assess whether the applicant’s claims were credible. 

26. In assessing the credibility of the applicant’s claims, the Tribunal accepted that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims. The Tribunal was alive to the fact that, if it made an adverse finding in relation to a material claim by the applicant, but was unable to make that finding with confidence, it must then proceed to assess the claim on the basis that it might possibly be true. The Tribunal noted that it was not required to accept uncritically any and all of the allegations made by the applicant nor was it required to have rebutting evidence available to it before it in coming to the conclusion that the applicant had not made out the factual claims. 

27. After identifying this approach, which was the correct approach, the Tribunal did exactly what it was required to do.  It specifically considered, as already noted, each of the applicant’s claims and claims relating to his Chinese ethnicity, his Christian faith, and whether or not he would suffer any economic hardship. 

28. Interestingly, from the Court’s point of view in relation to the claim made at the hearing that the applicant asserted that he could not practice his Christian faith freely in Malaysia and the Tribunal for the purposes of its decision accepting that the applicant is of the Christian faith, the Tribunal did not put to the applicant his potentially conflicting evidence as noted in paragraph 20 of the decision, that he had travelled to Thailand to make some offerings to Buddha vis-à-vis his assertion that he is a Christian.

29. It was accepted that the applicant was a Christian, but what was not found by the Tribunal was that there was no fear of harm on the basis of the Christian faith established on the evidence before the Tribunal.

30. Therefore, Ground 3 is not made out.

    Conclusion

31. In all of the circumstances in considering the applicant’s submissions and the grounds set out in the application, the applicant has not identified any jurisdictional error. All three grounds fail and the application is dismissed.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated: 16 December 2021