Eyh17 v Minister for Immigration

[2018] FCCA 2798

FEDERAL CIRCUIT COURT OF AUSTRALIA

EYH17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2798

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.36

Cases cited:

Dranichnikov v Minister for Immigration [2003] HCA 26

SZNOE v Minister for Immigration [2012] FCA 96

Applicant: EYH17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3447 of 2017

Judgment of: Judge Driver

Hearing date: 27 September 2018

Delivered at: Sydney

Delivered on: 27 September 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr S Valliappan of DLA Piper

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application 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 $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3447 of 2017

EYH17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 October 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection are set out in the Minister’s outline of submissions filed on 19 September 2018.   

2. The applicant is a male citizen of Malaysia born on 31 January 1984.[1] He arrived in Australia on 5 March 2016 as the holder of a visitor visa.[2]

   [1] (Court Book) CB 14.

   [2] CB 21.

3. The applicant applied for a protection (class XA) (subclass 866) visa on 31 May 2016.[3] The applicant's claims as set out in his application form were as follows:[4]

   a)he is of Tamil Indian ethnicity and experienced discrimination and exploitation by the majority Malay community in Malaysia;

   b)he is a member of an alliance of opposition parties and participated in the Bersih 4 rally in August 2015. In November 2015, he was arrested after a rally and tortured by the police because he was part of the opposition;

   c)he fears further torture or death at the hands of the police or people affiliated with the ruling party if he returns to Malaysia;

   d)he had false cases brought against him by police and he will not be protected because police only act according to the ruling party.

   [3] CB 32-34.

   [4] CB 32 - 34.

4. The applicant attended an interview with the delegate on 13 April 2017.[5] At the interview, the applicant provided the following additional information:[6]

   a)his house was searched by police officers three times in December 2016, January and March 2017;

   b)he was arrested twice for his involvement in Bersih 4 rally. He was beaten by the police during the first arrest and sustained facial injuries. He also attended Bersih 1 rally;

   c)he was arrested for attending another rally in November 2015;h

   d)he became a general member of the “Keadilan” opposition party in 2013 with low-level involvement.  He has had no contact with the party since his arrival in Australia;

   e)if he joined other Bersih rallies, he would be harmed.

   [5] CB 57.

   [6] CB 111 - 112.

5. The application was refused by the delegate on 26 May 2017.[7]

   [7] CB 58.

6. The applicant applied to the Tribunal for review of the delegate's decision on 17 June 2017.[8]

   [8] CB 99.

7. On 5 October 2017, the applicant appeared before the Tribunal and gave oral evidence in relation to his claims.

8. At the hearing before the Tribunal, the applicant testified that his concern was in relation to his political activity and that he did not fear returning to Malaysia for any other reason.[9]

   [9] CB 114.

9. The Tribunal affirmed the delegate's decision on 18 October 2017.

The decision of the Tribunal

1. The Tribunal considered in detail the applicant's claims in relation to his political activity in Malaysia at [39]-[48]. The Tribunal had regard to the applicant's evidence and country information before concluding at [48] that it was not satisfied there was a real chance the applicant would suffer serious harm on return to Malaysia for reason of his political opinion.[10]

   [10] CB 114 - 116.

2. The Tribunal then considered the applicant's claimed racial discrimination against Indians in Malaysia at [49]-[51].  The Tribunal had regard to the applicant's evidence and country information and concluded that it was not satisfied there was a real chance the applicant would be discriminated against or exploited to a degree which would amount to serious harm on return to Malaysia for reason of his race.[11]

   [11] CB 117 at [51].

3. The Tribunal also considered the applicant's statements in relation to his religious practices but found, based on his oral evidence, that he feared no harm in Malaysia for this reason.[12]

   [12] CB117 at [52].

4. For these reasons, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under ss.36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[13]

   [13] CB 117 – 118 at [53]-[54].

The present proceedings

1. These proceedings began with a show cause application filed on 10 November 2017.  The applicant continues to rely upon that application, which contains the following grounds:

   1. The Tribunal made jurisdictional error as it held that the visa applicant was a low level ordinary member of the opposition party contrary to the evidenced on record and thus legally unreasonable.

   Particulars

   The applicant gave evidence before the Tribunal in support of his claim regarding various charges in which he was falsely implicated by the police.  The applicant also stated at the time of evidence before the Tribunal that he was twice arrested, assaulted by police.  The applicant also adverted that he was confused while adducing evidence before the Tribunal.  It is submitted that the Tribunal did not adhere to the principles laid down in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 at [61] wherein Sackville J observed that evidence by the protection visa applicant may be “given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision maker/investigator” and noted that “even applicant with a genuine fear of prosecution may be present as models of consistency or transparent veracity”. It is submitted that the matter should have adjourned so that the applicant is provided an opportunity to lead further evidence after gaining his composure. Further the AAT failed to consider all the evidence on record which indicated that he was active member of the party.

   2. The Tribunal failed to consider the correct social group to which the applicant belongs namely being an (i) ethnic Indian of Tamil origin (ii) Hindu, middle aged male (iii) Falsely implicated in criminal cases by corrupt police (iv) failure of state to protect him against corrupt ruling party elite members (v) failed asylum seeker who returns to Malaysia after criticising that the ruling Government and police in Malaysia as vindictive and corrupt

   Particulars

   The Tribunal and the delegate failed to consider the correct social group (PSG) to which the applicant belongs.  They have considered only some of the characteristics of the social group but failed to consider the other aspects of the particular social group like failed asylum seeker who had blamed the Government and police of callousness and corrupt practice.

2. The application is supported by a short affidavit filed with it, upon which the applicant also relies.  I received that affidavit as a submission. 

3. I have before me as evidence the court book, filed on 11 January 2018.   

4. I invited oral submissions from the applicant this morning.  He told me that he applied for the protection visa because of problems in Malaysia, and that he felt he was disadvantaged before the Tribunal because of his inability to substantiate his claims with documentary evidence.

5. When I invited the applicant to tell me about the problems he sees with the Tribunal decision, he told me that in his view the review conducted by the Tribunal was undertaken correctly.  He also told me that in the light of the substantial political changes that have taken place in Malaysia in recent months, he no longer harbours the same fears as when he applied for protection.  In view of the concessions made by the applicant, I did not consider it necessary to call on the Minister’s solicitor in order to respond to the applicant’s submissions.  In my view, the applicant has no viable argument available to him concerning any jurisdictional error by the Tribunal.  In that regard, I agree with the Minister’s written submissions concerning the grounds of review. 

Ground 1

1. By Ground 1, the applicant disagrees with the Tribunal’s finding in relation to his political profile and alleges that this finding was legally unreasonable. The particulars to this ground, in summary:

   a)restate the applicant's claims of being falsely implicated, arrested and assaulted by the police;

   b)claim that the applicant was confused while adducing evidence and submit that the Tribunal should have adjourned the hearing to allow the applicant to gain his composure; and

   c)allege that the Tribunal failed to consider all evidence on record that indicated the applicant was an active member of the opposition party.

2. At [40] of its decision, the Tribunal accepted that the applicant was opposed to the then incumbent Malaysian government and sympathised with opposition groups, but having considered the applicant's evidence, the Tribunal was not persuaded that the applicant was sufficiently motivated to join the Keadilan party or any other opposition political parties on return to Malaysia.  This finding was open to the Tribunal based on the applicant's evidence at the hearing before the Tribunal[14] and the country information before it (referred to at [41]-[42][15] and [46]-[47][16] of the decision record).

   [14] CB 112 – 114 at [25] – [37].

   [15] CB 114 – 115.

   [16] CB 116.

3. This ground goes no higher than to seek impermissible merits review of the Tribunal’s findings.

4. With regard to the particulars of this ground:

   a)to the extent the particulars discuss the applicant's claims to fear harm from the police, these claims are linked to the applicant's claimed fear due to his political activity, which were considered by the Tribunal, as apparent from its reasons set out at [39]-[48].  In any event, the particulars in this regard do not point to any error on the part of the Tribunal;

   b)to the extent the particulars allege the applicant was confused while adducing evidence at the hearing before the Tribunal, the Tribunal decision record suggests the applicant provided reasonable and cogent responses to all questions put to him at the hearing.  At [30], the Tribunal noted the applicant's response to its query regarding inconsistent evidence, stating that he must have been confused when previously giving evidence to the delegate. However, this does not in any way suggest that the applicant was confused at the Tribunal hearing.  Further, on the face of the material before this Court, there is no evidence an adjournment was sought by the applicant at the Tribunal hearing.  It was for the applicant to adduce evidence to prove his alleged confusion; and

   c)to the extent the particulars allege the Tribunal failed to consider all of the applicant's evidence in support of his claim that he was an active member of the opposition party, this allegation is not capable of being made out.  It is clear from the Tribunal’s decision record that it had regard to the applicant's evidence before the delegate[17] and the applicant's oral evidence at the Tribunal hearing[18] before reaching its conclusion at [48].

   [17] at [13]-[24].

   [18] at [25]-[37].

Ground 2

1. Ground 2 alleges that the Tribunal did not consider the applicant's correct particular social group.

2. Having regard to the claims enumerated at [11]-[24] of the Tribunal’s decision record and the matters discussed at the Tribunal hearing referred to at [25]-[37], the applicant did not raise any claims relating to a particular social group to which he belongs, and therefore, the Tribunal was not bound to consider this claim now raised before this Court.

3. Further, there is clear authority for the proposition that a decision-maker is not required to go through each of the steps enunciated in Dranichnikov v Minister for Immigration,[19] where the basis of the claim has already been rejected in the context of the Refugee Convention.[20]

   [19] [2003] HCA 26 at [26].

   [20] SZNOE v Minister for Immigration [2012] FCA 96 at [78].

4. In this regard, the consideration of the applicant's claimed membership of a particular social group, being “middle-aged male ethnic Indian of Tamil origin and Hindu religion”, is disposed of in the Tribunal’s consideration of these characteristics at [11] and the claims of discrimination on this basis at [49]-[51].

5. Similarly, the consideration and the assessment of the applicant's claimed membership of a particular social group, being “persons falsely implicated in criminal cases by corrupt police and unable to receive state protection against corrupt ruling party elite members”, are subsumed at [15]-[16] and [39]-[48].

6. With regard to the applicant's claimed membership of a particular social group, being “failed asylum seeker who returns to Malaysia after criticising the then Government and police as vindictive, callous and corrupt”, to the extent the applicant alleges a fear of harm due to previously speaking out against the ruling party, this claim had been considered by the Tribunal at [39]-[48].

7. To the extent the applicant alleges a fear of harm as a returning asylum seeker, such claim was not previously raised by the applicant to the delegate or the Tribunal. Therefore, it was not a claim that the Tribunal was bound to consider and it is for the applicant to adduce evidence to make out this ground.

8. I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal.

9. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

10. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  28 September 2018