Fca17 v Minister for Immigration
[2018] FCCA 2755
•24 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FCA17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2755 |
| 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: Minister for Immigration v Rajalingam [1999] FCA 719; (1993) 93 FCR 220 SZSMQ v Minister for Immigration & Anor [2013] FCCA 1768 |
| Applicant: | FCA17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3580 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 24 September 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Nanson of Australian Government Solicitor |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
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 3580 of 2017
| FCA17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 3 November 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 and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 17 September 2018.
The applicant is a citizen of Malaysia who arrived in Australia on 8 July 2016 on an Electronic Travel Authority visa. He lodged an application for the protection visa on 5 October 2016.[1]
[1] Court Book (CB) 80.
The applicant’s claims for protection are set out in that application and summarised by the delegate as follows: [2]
a)he joined a Hindraf[3] demonstration (held in Kuala Lumpur, Malaysia, on 25 November 2007);
b)he joined a protest against the corrupt practices of the Prime Minister on 2016;
c)the ruling party threatened to file a false case against him; and
d)he may be tortured and killed if he returns to Malaysia.
[2] CB 81 and see CB 157-158.
[3] Hindu Rights Action Force – see CB 160 at [35].
In short, the applicant claimed to fear harm because of his political opinion and that if he returned to Malaysia he would be threatened and harmed by the police or hooligans hired by people in power in the government.[4]
[4] CB 88.
The delegate noted the applicant provided only “vague detail and no evidence” in support of his claim.[5] The delegate also took into account the applicant was able to depart Malaysia without difficulty.
[5] Ibid.
Accordingly, the delegate was not satisfied the applicant had “established his case” and that he did not satisfy s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act).[6] For similar reasons, and taking into account relevant country information, the delegate was not satisfied there was a real risk the applicant would suffer significant harm as defined under s.36(2A) of the Migration Act and that he was not a person to whom Australia owed protection as outlined in s.36(2)(aa) of the Migration Act.[7]
[6] CB 89.
[7] CB 98-99.
On 10 July 2017 the applicant lodged an application for review of the delegate’s decision with the Tribunal.[8] The applicant attended a hearing before the Tribunal on 5 October 2017.[9] In addition to his Malaysian passport, the applicant provided an original and translated copy of a police report dated 29 January 2007.[10]
[8] CB 105-111.
[9] CB 135-136.
[10] CB 137-139.
Before the Tribunal, the applicant testified that he left Malaysia because he encountered many problems with a Malay trader who was jealous of his success.[11]
[11] CB 158 at [24]-[25].
The applicant confirmed that he participated in a Hindraf rally in Kuala Lumpur in 2007 following which he was detained and assaulted by police. The applicant claimed he attended another Hindraf rally in 2016 and a Bersih rally also in 2016. He claimed he was arrested again in 2016 but released after a few hours.
He claimed people, supported by the police, had been going after him for years and confirm that if he returned to Malaysia he would be tortured by the police or their paid hooligans.[12]
[12] CB 158 at [26]-[28].
The Tribunal gave its decision on 3 November 2017.
Tribunal decision
Past problems with Malay trader/s
The Tribunal noted evidence given by the applicant of his efforts to operate various food businesses in Negeri Sembilan, Selangor and Klang. The Tribunal accepted that the applicant encountered problems from a neighbouring Malay stall holder in Negeri Sembilan in 2005. The Tribunal was also prepared to accept that the same Malay trader interfered with the applicant’s restaurant business, which operated in a different neighbourhood, causing the applicant to move to Selangor.[13]
[13] CB 159 at [30]-[32].
With regard to the applicant’s evidence of the problems he experienced in Selangor and Klang, the Tribunal found this evidence to be “vague and lacking in the detail he provided in respect of his two earlier businesses”.[14] The Tribunal also found it “significant” that the applicant’s written claims had made no mention of these ongoing problems. Accordingly, the Tribunal was not prepared to accept that the same Malay trader or the police or paid hooligans harassed or interfered with the applicant’s businesses when he moved to Selangor and Klang. Nor was the Tribunal persuaded that the applicant’s family were “targeted for harm”.[15]
[14] CB 159 at [33].
[15] CB 159-160 at [33].
Past political involvement
The applicant claimed he became interested in politics because Indians are discriminated against in Malaysia and that he participated in two Hindraf rallies in 2007 and 2016.[16]
[16] CB 160 at [34].
The Tribunal noted that the applicant “displayed very little knowledge of Hindraf” but, more significantly, that the applicant’s evidence regarding his attendance at the 2007 rally was not consistent. In his written claims, the applicant said he was arrested, warned and released following the rally. Before the Tribunal, the applicant claimed he was held in detention for one day and physically assaulted. The Tribunal also noted that the applicant had failed to mention his attendance at Hindraf rally in 2016 and that he had encountered no difficulties exciting the country through the normal channels.[17]
[17] CB 160 at [36].
At the Tribunal hearing, the applicant claimed it was a Bersih rally which he attended in 2016 to condemn the corrupt practices of the Prime Minister.[18]
[18] CB 160 at [37].
The Tribunal noted this was a claim not included in his written application and sought confirmation from the applicant that he had attended this rally in early 2016. The applicant confirmed that he was arrested in 2016 at the Bersih rally.[19]
[19] CB 160-161 at [37]-39].
The Tribunal considered relevant country information which showed that Bersih rallies were held on 29 and 30 August 2015 and on 19 November 2016. The Tribunal noted the applicant arrived in Australia in July 2016 and therefore could not have attended the 2016 Bersih rally.[20]
[20] CB 161 at [39].
Taking into account these matters and other evidence given by the applicant, the Tribunal was “unable to accept with any certainty” the applicant’s claims regarding his political involvement in Malaysia. The Tribunal did not accept that the applicant was ever politically active in Malaysia, or that he had been arrested or otherwise threatened as a result of any political activity. The Tribunal also did not accept that the cause of any of the applicant’s business problems was in any way connected with his political activity.[21]
[21] CB 161 at [41].
The Tribunal found that there was not a real chance or a real risk the applicant would suffer serious or significant harm on return to Malaysia for reason of his political opinion or activity.[22]
[22] CB 161 at [42].
Claimed discrimination against Indian Malaysians
On the basis of the applicant’s evidence regarding his background in Malaysia and taking into account relevant country information, the Tribunal accepted that the applicant and other Indian Malaysians might encounter some “low level official and societal discrimination in Malaysia”.
However, the Tribunal was not persuaded that any discrimination encountered by the applicant would be so severe as to amount to serious or significant harm and was not satisfied that there was a real chance or a real risk that the applicant would suffer serious or significant harm on return to Malaysia because of his race or ethnicity.[23]
[23] CB 161-162 at [43]-[45].
Taking into account its findings relating to the applicant’s past encounters with a Malay trader in Negeri Sembilan, the Tribunal noted these problems occurred approximately eight to ten years ago and found there was only a remote possibility the applicant would face serious or significant harm at the hands of the Malay trader.
The Tribunal was satisfied the applicant could return to Selangor or Klang or to an entirely different part of the country where he would be safe from harm from the Malay trader. Accordingly, the Tribunal was not satisfied there was a real chance or a real risk the applicant would suffer serious or significant harm for this reason.[24]
[24] CB 162 at [46].
Finally, the Tribunal noted that during the hearing the applicant claimed to fear harm from the Malaysian authorities because he had applied for protection from the Australian government. As the Tribunal put to the applicant, it was not aware of any information which supported this claim.
The Tribunal noted the applicant’s Malaysian passport was valid until 2020 and, taking into account relevant country information together with its findings that the applicant was not a person of interest to the Malaysian authorities, the Tribunal was satisfied that there was not a real chance or a real risk the applicant would suffer serious or significant harm in Malaysia for this reason.[25]
[25] CB 162-163 at [47]-[48].
For the above reasons, the Tribunal was not satisfied the applicant was a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Migration Act.
Taking into account its findings regarding the harm feared from the Malay trader, the Tribunal could see no reason why the applicant would not be able to return to Selangor, Klang or elsewhere in Malaysia for work and, on the evidence before it, considered that it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk of him suffering any significant harm. Accordingly, the Tribunal was not satisfied the applicant was a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Migration Act.
The present proceedings
These proceedings began with a show cause application filed on 21 November 2017. The applicant continues to rely upon that application.
The grounds in the application are threefold:
1.The Tribunal failed to ask itself the what if I am wrong question as findings at 41 appear to have been made without confidence.
Particulars
a.The Tribunal at 41 states "In view of the above the Tribunal is unable to accept with any certainty the applicant's claims in respect of his political involvement in Malaysia.
b.At [40] the Tribunal found an essential integer of the applicant's claim where two police officers threatened and intimidated him to be "problematic", this claim was not explicitly refused by the Tribunal, which indicates that the Tribunal was unable to make a finding with certainty.
c.The Tribunal refers to "Past problems with Malay trader/s" implying that the heading considered past problems the applicant faced from one or more "Malay traders", however the assessment at 30 -33 does not consider harm from more than one Malay trader.
d.Where the decision maker is uncertain that certain events may have occurred in the past, there is an obligation on the decision maker to assess the claims as though the particular event that it is uncertain to have occurred, actually occurred.
e.The Tribunal failed to satisfy itself by asking the what if I am wrong question and therefore committed legal error for this reason.
2.The Tribunal failed to consider an essential integer of the applicant's claims [19]
Particulars
a.The applicant claimed at [19] that the police repeatedly threatened and intimidated him because the applicant was critical of the ruling party.
b.The Tribunal does not appear to have had genuine consideration of this claim.
3.When consider future harm the applicant would face in the relocated place (i.e. Klang) the Tribunal failed to consider if the "paid hooligans" were linked to the Malay trader, and if the applicant would face harm in Klang from the paid hooligans
Particulars
a.More details to be provided once court book is published.
(applicant’s emphasis retained – errors in original)
The application is supported by a short affidavit filed with it. I also have before me as evidence the book of relevant documents (court book) lodged on 8 February 2018.
Only the Minister filed written submissions in advance of today’s hearing. I invited oral submissions from the applicant today. He is plainly concerned about the Tribunal decision and regards the review as inadequate. To a substantial extent, the applicant’s submissions were directed to the merits of his claims for protection and the Tribunal’s decision on those claims. He went into some detail about his fears of harm should he be required to return to Malaysia. He admitted making some mistakes before the Tribunal including in relation to his attendance at a political rally which post-dated his arrival in Australia. In his submissions in reply the applicant made allegations as to the lack of political neutrality of the Malaysian police.
To the extent that the applicant takes issue with the merits of the Tribunal decision, they are beyond the scope of this proceeding. His concerns might be characterised as an allegation that the Tribunal failed to give proper, genuine or realistic consideration to his claims. Such a proposition, if put, is answered by reference to the detailed consideration of the claims evident in the Tribunal’s reasons. In my view, there was no want of consideration of any of the applicant’s claims by the Tribunal.
In other respects, I agree with the Minister’s submissions in relation to the grounds of review advanced.
Ground 1: the Tribunal failed to ask itself the “what if I am wrong question” as findings at [41] appear to have been made without confidence
It is well established that for a decision-maker to ask itself “what if I am wrong?” occurs in circumstances where there is uncertainty about an event significant to the ultimate question as to whether the applicant has a well-founded fear of being persecuted for a Convention reason.[26]
[26] See Minister for Immigration v Rajalingam [1999] FCA 719; (1993) 93 FCR 220 at [60]-[64].
The applicant refers to [30]-[33] of the Tribunal’s reasons and claims that the heading “Past problems with Malay trader/s” implies that he faced harm from one or more “Malay traders” yet the Tribunal did not “consider harm from more than one Malay trader”.
As summarised above, the Tribunal accepted the applicant’s claims with regard to harm suffered at the hands of the same Malay trader in 2007 when the applicant operated a business in Nergeri Sembilan and Selangor.[27] However, based on the applicant’s evidence, the Tribunal was not prepared to accept his claims that the same Malay trader interfered with his businesses when he moved to Selangor and Klang. The heading given by the Tribunal reflects the claims made by the applicant in relation to this issue and the Tribunal’s consideration of those claims.
[27] CB 159 at [30]-[32].
The Tribunal did not display any uncertainty about the conclusions it reached in relation to this claim.
The Tribunal next considered the applicant’s past political involvement. In relation to this issue, the applicant claims that the Tribunal’s finding at [40], that his written claims relating to his attendance at a Bersih rally in 2016 and his subsequent assault by two police officers was “problematic”, indicated that the Tribunal was unable to make a finding with certainty.
As summarised above, at [41] of its reasons, the Tribunal considered all of the evidence given by the applicant in relation to his claimed political involvement in Malaysia but did not accept that he was ever politically active or arrested and threatened for this reason as a consequence.
The Tribunal’s findings were open to it for the reasons it gave and do not disclose any real doubt about the issues in dispute. The Tribunal was not, therefore, required to pose the “what if I am wrong question”[28] and no jurisdictional error arises on the basis alleged by the applicant.
[28] The “what if I am wrong” exercise is only engaged in circumstances where the Tribunal is unable to reach a sufficient state of satisfaction on the evidence to make any factual findings because of deficiencies in the presentation of the applicant’s case: SZSMQ v Minister for Immigration & Anor [2013] FCCA 1768 at [57]-[60].
Ground 2: the Tribunal failed to consider an essential integer of the applicant’s claims
The applicant claims that the Tribunal did not “appear to have had genuine consideration” of the applicant’s claims set out in his application for the visa and in the Tribunal’s decision as [19] as follows:
Two police repeatedly threatened and intimidated him as he was critical of the ruling party because of its corrupt practices including the recent funds transferred to the personal bank account of the Prime Minister.
At [37] of its decision, the Tribunal referred to the applicant’s claim “that he joined a rally in 2016 to condemn the corrupt practices of the Prime Minister and that he was critical about the government’s practices.” At [39], the Tribunal considered that the applicant could not have attended that rally because it occurred after he had arrived in Australia. The Tribunal then went on to say at [40]:
The Tribunal also finds it problematic that the applicant’s written claims state that after his attendance at the 2016 rally two police officers repeatedly threatened and intimidated him and he was threatened with having false cases filed against him.
The Tribunal’s reasons disclose that at the hearing the applicant was asked about what happened following the 2016 rally and his evidence was that “nothing further happened but that he and his family felt unsafe”.[29] The Tribunal discussed with the applicant the “serious claims” he had made regarding the two policemen but for the reasons it gave did not accept he had ever been “arrested as a result of any political activity or monitored, threatened, harassed or intimidated with the threat of false court action over his political activity.”[30]
[29] CB 161 at [40].
[30] CB 161 at [41].
The Tribunal did not fail to consider an essential integer of his claim and that jurisdictional error cannot be established on this basis.
Ground 3: when consider (sic) future harm the applicant would face in the relocated place (i.e. Klang) the Tribunal failed to consider if the “paid hooligans” were linked to the Malay trader and if the applicant would face harm in Klang from the paid hooligans
The applicant’s evidence in relation to this issue is summarised at [33] of the Tribunal’s reasons. With regard to the applicant’s claimed problems in Selangor and Klang, the Tribunal found the applicant’s evidence to be “vague and lacking in the detail” when contrasted with his evidence in respect of his 2 earlier businesses. The Tribunal noted the applicant’s further claim that the police, or their paid hooligans, might have been behind his problems because of his opposition to the government.[31]
[31] CB 159.
The Tribunal noted the applicant’s written claims made no mention of any ongoing problems with his businesses in Selangor and Klang and was not prepared to accept that the same Malay trader or the police or paid hooligans harassed or interfered with the applicant’s businesses when he moved there.[32]
[32] CB 159 at [33].
Nor did the Tribunal accept that the cause of any problems the applicant encountered running his businesses was in any way connected with his political activity in relation to which the Tribunal did not accept that the applicant had ever been arrested or harassed.[33]
[33] CB 161 at [41].
Conclusion
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed. The applicant referred to his difficult financial circumstances, but impecuniosity is not a reason for the Court to refrain from making a costs order.
I will order that the applicant 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 fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 27 September 2018