Fgu17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 1105

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FGU17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1105

File number(s):	MLG 2622 of 2017
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	29 November 2023
Catchwords:	MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Protection (Class XA) (subclass 866) visa – whether the Tribunal failed to ‘properly assess’ the applicant’s claims – where the applicant primarily claimed to fear harm in Malaysia due to his involvement with the Bersih movement – where the Tribunal had concerns about the lack of detail in the applicant’s claims and understanding of the Bersih movement – where Tribunal’s conclusions were reasonably open to it – further consideration of whether Tribunal relied upon ‘relevant’ country information – where Tribunal validly considered country information – no jurisdictional error established – application dismissed with costs.
Legislation:	Migration Act 1958 (Cth), ss 424, 424AA
Cases cited:	NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Division:	Division 2 General Federal Law
Number of paragraphs:	69
Date of last submission/s:	5 September 2023
Date of hearing:	5 September 2023
Place:	Melbourne
Solicitor for the Applicant:	The Applicant appeared in person
Solicitor for the First Respondent:	Ms N Bosnjak of Mills Oakley

ORDERS

MLG 2622 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FGU17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	29 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The applicant’s application filed on 1 December 2017 be dismissed.

2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.

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

DEPUTY CHIEF JUDGE MERCURI:

INTRODUCTION

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 13 November 2017. By its decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) not to grant the applicant a Protection (Class XA) (subclass 866) visa (‘protection visa’) under section 65 of the Migration Act 1958 (Cth) (‘the Act’).

   BACKGROUND

2. The applicant is a Malaysian citizen.[1]  He arrived in Australia by plane on 11 March 2016 on an electronic travel authority (‘ETA’).[2]

   [1] Court book at page 14.

   [2] Court book at pages 21 and 22; page 46.

   Application for protection visa on 8 June 2016

3. On 8 June 2016, the applicant applied for a protection visa.[3]

   [3] Court book at pages 1 to 37.

   Applicant’s claims for protection

4. In his protection visa application, in response to a question as to why he left his home country, the applicant said:

   I left my own country because the government of Malaysia is seeking the group member of Bersih.  I’m the one of Bersih member … Our Minister of Home Affair … said ‘Malaysian who are unhappy with this country political system should leave the country (Malaysia).  This statement was after series of street demonstration led by opposition parties.  Many group prissioned.  Media hidden this sensitive issue.  I decide to seek refuge and safety life matter.  Thank you.[4] (sic)

   [4] Court book at page 32.

5. In response to a further question as to what the applicant feared if he were to return to Malaysia, he said:

   … the police will caught me and put me in the jailed, so my life of course in dangerous.  I hope that Australian Goverment will help me (sic).  Thank you.[5]

   [5] Court book at page 32.

6. On 26 August 2016, the delegate considered the applicant’s claims and determined that the applicant did not meet the statutory criteria for the grant of a protection visa.[6]

   [6] Court book at pages 41 to 55.

7. In coming to this conclusion, the delegate had regard to country relevant information, including DFAT information and Malaysian and international media reports.[7]

   [7] Court book at pages 49 to 53.

8. Relevantly, the delegate said:

   21.The applicant has not provided details of the extent of his involvement in Bersih’s activities or explained how his opinions and activities would bring him to the attention of the Malaysian authorities. He also has not provided any evidence to support his claims.

   …

   23.… I also note the applicant states on his application that he has not experienced harm in Malaysia.[8]

   [8] Court book at page 53.

   Application for review in the Tribunal on 5 September 2016

9. On 5 September 2016, the applicant lodged an application for review of the delegate’s decision in the Tribunal.[9]

   [9] Court book at pages 56 and 57.

10. By letter dated 27 September 2017, the applicant was invited to attend a hearing before the Tribunal scheduled for 9 November 2017.[10]  The applicant attended that hearing on his own behalf and was assisted by a Malay interpreter.[11]

    [10] Court book at pages 65 to 67.

    [11] Court book at pages 77 to 79.

11. On 13 November 2017, the Tribunal handed down its decision in which it affirmed the delegate’s decision to refuse to grant the applicant a protection visa.[12]  The applicant was notified of this decision by letter dated 14 November 2017.[13]

    [12] Court book at pages 80 to 93.

    [13] Court book at page 81.

    TRIBUNAL DECISION

12. The Tribunal’s decision record of 13 November 2017 is at pages 82 to 93 of the court book.

13. At paragraphs [3] to [8] of its decision record, the Tribunal set out the relevant statutory criteria by which it was required to consider the applicant’s claim.

14. At paragraphs [10] to [15], the Tribunal summarised the applicant’s claims contained in his protection visa application.  The Tribunal noted the applicant’s evidence in his application form as ‘vague and general’.[14]

    [14] Tribunal decision record dated 13 November 2017 at paragraph [12].

15. At paragraph [16], the Tribunal set out the applicant’s evidence given at the hearing and the Tribunal’s assessment that the applicant was unable to provide much detail about the Bersih movement including his involvement, attendance at rallies and other occurrences ‘without significant prompting from the Tribunal’.

16. At paragraphs [17] to [22], the Tribunal recorded that given the lack of detail provided by the applicant, at the hearing, the Tribunal gave the applicant a further opportunity to explain his involvement in the Bersih movement, including what prompted him to join the movement and how he joined.

17. At paragraph [23], the Tribunal set out some of the evidence given by the applicant at the Tribunal hearing.  At paragraph [24], the Tribunal concluded that:

    24.It is evident from this interaction that the applicant knows little about the movement, its aims, its history in terms of the specific names ascribed to particular rallies and that overall the applicant’s knowledge of the Bersih movement was so limited as to lead the Tribunal to find that the applicant was never a member of the Bersih movement and had never attended any rallies and as a consequence all the applicant’s remaining claims about fearing harm from his workplace/colleagues, his family, his uncle in particular, the Red Shirts, and the police all fall away and are rejected by the Tribunal in their entirety.

18. This finding was further reinforced by the Tribunal’s reasons at paragraph [26], where the Tribunal went on to say:

    26.Even if the Tribunal accepts that the applicant was a marginal supporter of the Bersih movement (and it does not), his inability to provide other than vague references to riots and rallies and the aims of the movement being about attaining a clean economy, leads the Tribunal to find that the applicant may have read cursorily about the movement or had found out about the movement through a third party in order to be able to advance claims for the purposes of his application.

19. The Tribunal then went on to consider relevant country information about the Bersih movement at paragraphs [27] to [28].  At paragraphs [29] to [31], the Tribunal continued to discuss the lack of detail in the applicant’s claims.

20. For example, at paragraph [29], the Tribunal said that it:

    29.… found the applicant’s account of how and when he decided to become a member of the movement unconvincing as he referred simply to being influenced by unidentified people around him and he had joined or followed because they wanted to overthrow the government and he thought the government was not fair in raising prices.  Earlier the applicant had stated that he joined because he had never voted before, adding to the applicant’s vague account.

21. At paragraphs [32] to [34], the Tribunal further noted that the applicant’s lack of detail continued when discussing his fears if he were to return to Malaysia and his reasons why he could not relocate to another place within Malaysia.

22. At paragraph [35], the Tribunal recorded that pursuant to section 424AA of the Act, it put to the applicant inconsistencies between what he had put in his application and what he said in his interview about the harm he feared if he were to return to Malaysia. At paragraph [37], the Tribunal rejected the explanation given by the applicant as to why there were such inconsistencies and concluded that ‘the reason he could not recall what he had written is because none of the claims advanced had any base in reality’.

23. At paragraph [38], the Tribunal set out an exchange with the applicant in the course of the Tribunal hearing in which the applicant was given various opportunities to clarify the harm he feared if he were to return to Malaysia.

24. Ultimately, at paragraph [40], the Tribunal concluded:

    40.      Having considered the applicant’s vague and general claims about his involvement in Bersih and having attended unspecified rallies, the Tribunal rejects the claims made by the applicant at the time of application and at the time of hearing in their totality, and does not accept that the applicant has ever been interested in the Berish movement or participated in any activity relating to the movement or held any political opinion, actual or imputed or held any political profile.

25. The Tribunal therefore held at paragraph [41] that there was no real chance that the applicant would be persecuted on return for his actual or imputed political beliefs, or for any other prescribed reason, now or in the reasonably foreseeable future.

26. At paragraphs [42] to [45], the Tribunal considered the applicant’s further claims about unfairness due to economic circumstances in Malaysia and also rejected these claims as a basis for the granting of a protection visa.

27. Ultimately, the Tribunal concluded that the applicant did not meet the criteria for the granting of a protection visa and similarly concluded that the applicant’s economic situation did not give rise to any obligations under section 36(2)(a) or section 36(2)(aa) of the Act.[15]

    [15] Tribunal decision record dated 13 November 2017 at paragraphs [46] to [52].

28. For each of these reasons, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.[16]

    [16] Tribunal decision record dated 13 November 2017 at paragraph [53].

    PROCEEDINGS IN THIS COURT

29. On 1 December 2017, the applicant filed his application for judicial review in this court, accompanied by an affidavit attaching a copy of the Tribunal’s decision record.

30. On 22 August 2018, orders were made by Registrar Allaway listing the matter for final hearing on 21 September 2020.  Those orders also provided for the applicant to file and serve any amended application upon which he intended to rely, written submissions and any supplementary court book, 28 days prior to the final hearing.[17]

    [17] Orders of Registrar Allaway dated 22 August 2018.

    Directions hearing on 6 July 2023

31. The hearing in this matter did not proceed on the date initially scheduled and on 6 July 2023, Registrar Cummings ordered that the matter be listed for final hearing on a date to be advised.  These orders also confirmed that the programming orders made by Registrar Allaway on 22 August 2018 remained in full force and effect.

32. The applicant attended the directions hearing before Registrar Cummings on 6 July 2023 by telephone and the notation to those orders indicate that the applicant confirmed that he had retained a copy of the court book filed in this matter.

33. Notwithstanding the programming orders, the applicant has not filed any amended application or any other documents in this matter, including any written submissions.

    Hearing on 5 September 2023

34. The matter was ultimately listed for final hearing before me on 5 September 2023.

35. On 4 September 2023, the applicant contacted chambers and the representative for the Minister requesting that the matter be adjourned on the basis that he could not afford to travel to attend the hearing.  The representative for the Minister opposed any adjournment but indicated in the circumstances that the Minister did not oppose the applicant appearing electronically.

36. When the matter was called on before me on 5 September 2023, the applicant appeared on his own behalf electronically, assisted by a Malay interpreter.

    GROUNDS OF REVIEW

    Orders sought by the applicant

37. By his originating application, the applicant seeks orders quashing the Tribunal’s decision and directing the Tribunal to determine the applicant’s application according to law.  In addition, the applicant seeks an injunction restraining the Minister from taking any action in respect of this matter.

38. In addition, under the heading ‘Final orders sought by applicant/s’, the applicant states:

    1.I am not really focus to remember thing happen during hearing session

    2.I got nervous to answer the question during hearing session

    3.I am not ready to return on my country because it was unsafe situation for me

39. I understand these matters to have been provided by the applicant as an explanation for his presentation during the hearing before the Tribunal.  They do not specify orders sought by the applicant in this matter.  However, in fairness to the applicant, I will deal with these insofar as they might be understood as grounds of review.

40. Putting these matters at their highest, it might be understood that the applicant is asserting that his presentation at the hearing was affected in some way such that he was unfit to participate in the hearing before the Tribunal member.  However, the applicant has not provided any medical or other evidence to suggest that he was unable to participate in the Tribunal hearing such that it could be said that he was not afforded procedural fairness.

41. Indeed, the Tribunal’s decision record itself contains excerpts from the hearing which, on its face, indicate that the applicant understood the questions put to him and was given an opportunity to respond.[18]

    [18] See, for example, Tribunal decision record dated 13 November 2017 at paragraphs [23] and [38].

42. One of the key issues of concern for the Tribunal was the lack of detail in the applicant’s claims and the lack of detail in his understanding of the Bersih movement itself.

43. Importantly, as noted at paragraphs [21], [23] and [24] of the delegate’s decision record, this is a matter that was an issue before the delegate.[19]  The applicant ought to have therefore been on notice that the lack of detail in his claim was a matter that he needed to address at the hearing before the Tribunal.

    [19] See Court book at page 53.

44. As stated, the Tribunal provided the applicant an opportunity to provide further information in the course of the hearing.  There is no evidence upon which it could be said that the applicant was not afforded procedural fairness.

45. As to point 3, the applicant simply restates his desire not to return to Malaysia at this point due to his belief that it is unsafe.  It does not raise any proper ground of review and therefore does not give rise to jurisdictional error.

    Grounds of review in application

46. Without in any way being critical of the applicant, who has represented himself throughout these proceedings, the applicant’s application also does not clearly set out what one would ordinarily consider to be grounds of review.

47. Under the heading ‘Grounds of application’, the applicant stated in his application:

    1.I am a 37-year-old single man born in Taiping Perak, Malaysia.

    2.I came to Australia for visitor visa purpose and applied for protection visa.

    3.If I return to Malaysia I will be caught by the police, who are searching for people who joined the BERSIH group, if caught, I may be sent to prison or be required to pay a large fine.

    4.The member did not make proper assessment and consideration and did not make a decision according to the actual situation of defendant (applicant).

    5.The member has made the decision based on facts finding from the internet source which is not current and relevant (sic).

    6.I have strong faith in Australia judiciary system where I would be treated fairly and will be granted protection visa to avoid trouble, I will bringing supporting documents to FCC to support my claim.  I will providing paper cuttings, affidavits from people who has been gone through same situation and has suffered.  Tribunal member has accepted that fact that people from BERSIH group has been arrested and punished and I strongly believe that I would be prosecuted once I return home.

48. I will now turn to consider each of these grounds in turn.

    Grounds 1 and 2

49. Grounds 1 and 2 simply set out the factual background to this matter and do not raise any possible grounds of review.

    Ground 3

50. Ground 3 simply repeats the applicant’s claim that if he were to return to Malaysia, he will be ‘caught by the police’.  Indeed, at the hearing before me, the applicant stated that the ‘problems [in Malaysia] have settled down and [are] already over a few years after the first hearing’.

51. Therefore, ground 3 does not raise a proper ground of review.

    Ground 4

52. By ground 4, the applicant claims that the Tribunal did not ‘make proper assessment’ and ‘did not make a decision according to the actual situation’.

53. It is clear from a fair reading of the Tribunal’s reasons for decision that it understood the applicant’s claims and it assessed those claims against the evidence available to it.   Ultimately, it did not accept the applicant’s claims to fear harm, largely on the basis of the lack of detail provided by the applicant, both about his understanding of the Bersih movement, as well as the lack of detail about his actual involvement in the movement.

54. Those findings were reasonably open on the evidence before the Tribunal and do not disclose any jurisdictional error.  It is also apparent from the Tribunal’s decision record and the excerpts of the exchanges with the applicant contained within those reasons that the Tribunal tried to give the applicant every opportunity to explain these matters in more detail.  No such clarification was forthcoming.

55. On this point, at the hearing before me, the applicant stated that the Tribunal member gave the decision ‘too fast’, and when asked to elaborate on this, the applicant said that ‘during the hearing [the] member actually googled … the information about the job opportunities in the place where I was born’.

1. As submitted for the Minister, section 424(1) of the Act confers a ‘general power’ on the Tribunal to ‘get any information that it considers relevant’, with the only limitation on that power being that the Tribunal must have regard to that information in making its decision.[20]   It was further submitted that the choice and assessment of the weight to be given to country information is also a factual matter exclusively for the Tribunal.[21]

   [20] Minister’s Outline of Submissions filed on 21 August 2023 at paragraph [25].

   [21] Minister’s Outline of Submissions filed on 21 August 2023 at paragraph [25]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13].

2. I agree with the Minister’s submission in this regard. The Tribunal considered the applicant’s evidence, but did not accept it.  In coming to this conclusion, the Tribunal had regard to country information which it referenced, including at paragraphs [27], [28] and [44] of its decision record. 

3. Ultimately, the material considered by the Tribunal and the conclusions it made on this point were open to it.  This reasoning discloses no jurisdictional error.  Rather, taking the applicant’s oral and written submissions on ground 4 at their highest, they do little more than quarrel with the Tribunal’s decision and seek impermissible merits review.

4. Ground 4 is therefore not made out.

   Ground 5

5. By ground 5, the applicant takes issue with the Tribunal’s reliance on information from the internet, which was stated by the applicant as being ‘not current and relevant’.

6. This point appears to square with the applicant’s oral submissions on ground 4, and again it is not clear, in the absence of any further particulars from the applicant, which information relied upon by the Tribunal the applicant takes issue with.

7. For reasons already discussed in relation to ground 4, in the absence of further particulars from the applicant about what country information relied upon by the Tribunal was not current or relevant, this ground does not give rise to any jurisdictional error.

8. Ground 5 is therefore not made out.

   Ground 6

9. As outlined above, by ground 6, the applicant stated that:

   6.… I will bringing supporting documents to FCC to support my claim.  I will providing paper cuttings, affidavits from people who has been gone through same situation and has suffered. …

10. As stated, no such supporting documents or materials were filed or provided at the hearing before me by the applicant.

11. The applicant goes on to merely restate that the ‘Tribunal member has accepted that fact that people from BERSIH group has been arrested and punished’ and again asserts that he ‘strongly believe[s] that [he] would be prosecuted once [he] return[s] home’.  Again, this point does not disclose any proper ground of review and seeks only to disagree with the Tribunal’s decision.

12. Ground 6 therefore does not disclose any jurisdictional error on the part of the Tribunal.

    CONCLUSION

13. For each of these reasons, no jurisdictional error arises in this matter.

14. I therefore make the orders set out at the commencement of these reasons.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Deputy Associate:

Dated:       29 November 2023