MZANR v Minister for Immigration

[2015] FCCA 3216

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZANR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3216

Catchwords:
MIGRATION – Application for judicial review – no jurisdictional error in Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407

Applicant: MZANR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 2372 of 2014

Judgment of: Judge McGuire

Hearing date: 30 November 2015

Date of Last Submission: 30 November 2015

Delivered at: Melbourne

Delivered on: 16 December 2015

REPRESENTATION

Counsel for the Applicant: Self Represented

Counsel for the Respondents: Ms Briffa

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The name of the second respondent be amended to read “Administrative Appeals Tribunal”.

2. The Application filed on 25 November 2014 be dismissed.

3. The Applicant pay the First Respondent’s costs in the quantum of $4,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2372 of 2014

MZANR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of the decision of the Refugee Review Tribunal (as it then was) (“the Tribunal”) made 7 November 2014 affirming a decision of the Minister’s delegate to refuse the applicant the granting of a Protection (Class XA) visa (“the visa”). 

2. The applicant appeared in person before this Court.  He did not require the assistance of an interpreter.

3. The applicant had not complied with the Registrar’s directions for the filing of written submissions but did provide the same to the Court and to Counsel for the first respondent on the morning of the hearing.

Background

1. The applicant is from Malaysia.  He visited Australia between June and September 2008 on a tourist visa.  In June 2010 the applicant came back to Australia holding a student visa valid until March 2013.  The applicant returned to Malaysia on two separate occasions during the course of his student visa being in 2011 and 2013.  He returned from the second visit on 3 March 2013 and applied for a protection visa on 15 March 2013.

2. On 24 July 2013 the applicant attended an interview with the Minister’s delegate to consider his application.  On 6 January 2014 the delegate refused the grant of the visa.

3. On 29 January 2014 the applicant applied to the Tribunal for a merits review of the delegate’s decision.

4. The applicant appeared before the Tribunal on 17 July 2014 to give evidence and present his case.

5. The applicant argues that should he be required to return to Malaysia then he will be harmed or killed by gangsters being members of a group known as “Tiga Line”. 

6. The applicant says he is a target, firstly, due to his previously successful airport limousine business in Malaysia and secondly, because he was formerly in a de facto relationship with a Muslim woman and as a result was beaten, tortured, and threatened by gang members. The applicant is of Tamil ethnicity and Hindu religion and says that he would not be protected by Malaysian police or authorities because of his race and religion and because of inherent corruption and support by the police for gang Tiga Line. 

7. The applicant’s application offers five grounds of complaint in respect of the Tribunal’s decision being:

   (1) Error in decision made by Tribunal in delay visa application.

   (2) Malaysian Tiga Line capability and corruption index.

   (3) Real risk or chances to be harm (sic) greater than the decision.

   (4) The tribunal did not refer to the evidence with (sic) is related to the application.

   (5) Strong evidence shown to tribunal about my previous financial background.

8. The applicant’s written submissions are 12 paragraphs long and expand on and digress from the grounds in the application.

The Tribunal’s decision

1. In the context of the applicant’s claims for protection the Tribunal made a number of findings of credit against the applicant, including his voluntary return to Malaysia in 2008, which it found to be “fundamentally implausible” in the face of his claims of being beaten, tortured and threatened by Tiga Line.

2. At [32] of the reasons the Tribunal accepted the applicant’s evidence in the form of a letter, medical evidence and photographic evidence in respect of his claimed injury but found that this evidence did not support his claims as to how the injury was incurred.

3. At [34] the Tribunal found as implausible the applicant’s claim that he was or would continue to be threatened and attacked by Tiga Line given that he has long abandoned his limousine business.

4. At [36-37] the Tribunal accepted that the applicant had travelled to Singapore and frequently to Thailand but did not accept that those visits were for the purposes of protection or that he was identified by Tiga Line at the borders of either country.

5. At [38] the Tribunal rejected the applicant’s evidence and claim that in 2013 he intended to stay permanently in Malaysia. It found this as implausible as his claim that gang members were able to identify him at the airport and were motivated to threaten him immediately.  To the contrary, the Tribunal found at [39] that the applicant’s return to Malaysia was strategic in respect of his intended application for the visa and to “contemporise” his protection claims.

6. At [40] of its reasons the Tribunal did not accept that the applicant was forced to make a quick sale of his home at a reduced price in 2011 because of his fear of Tiga Line.

7. At [43-44] the Tribunal rejected the applicant’s claim that he did not or could not return to Malaysia after his father’s death in 2014 and/or that he sold his limousine business in 2008, both because of his alleged fear of Tiga Line.

8. At [44] the Tribunal referred to the applicant’s qualifications and his work history and was satisfied that he would find employment in Malaysia.

9. At [53-54] the Tribunal found the applicant’s claim that his de facto partner had not noticed his disappearance in 2007 for several months and would not have taken steps to find him in hospital as implausible.  The Tribunal did not accept that the applicant was in a de facto relationship with a Muslim woman in Malaysia.

10. The Tribunal had regard to country information in respect of the applicant’s claims based on his Tamil ethnicity and Hindu religion.  The Tribunal found that there was no evidence that Tamils and/or Hindus were specifically targeted in any shooting attacks.[1] Further, the Tribunal, relying on the applicant’s own evidence as to his studies and employment, found that he had no real chance of serious harm arising from state-based discrimination in Malaysia, although noting and accepting some previous discrimination when he was a member of a state football squad but found this evidence to be historical and that any contemporary connection was speculative.

    [1] Refugee Review Tribunal Reasons, 7 November 2014, at [67]

11. At [78-81] the Tribunal found that the applicant was not entitled to complementary protection.

12. The Tribunal noted the psychological evidence before it but considered that the reports were based on self-reporting and, in any event, that the applicant would have any mental health needs satisfied in Malaysia.

Application to this Court

1. The first three grounds of complaint in the application are not particularised and do not identify any alleged jurisdictional error.  On any reading, these three “grounds” amount to a grievance with the Tribunal’s decision and the seeking of an impermissible merits review.  It is not the function of this Court to provide a further forum for consideration of the merits.[2] 

   [2] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

2. Ground 4 complains that the Tribunal did not refer to evidence “related to the application”.  This ground is unparticularised and a reading of the Tribunal’s comprehensive reasons does not expose any failure to address the evidence.  The fact finding role is that of the Tribunal, who also attributes weight to the evidence.[3]

   [3] NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10-11]

3. At ground 5 of the applicant’s application, the applicant alleges that there was “strong evidence shown to the tribunal about my previous financial background.”  This ground can only be interpreted as a complaint in respect of the weight attributed by the Tribunal.  This is, of course, a function for the Tribunal.  It is not the role of this Court to itself consider the weight that should be attributed to evidence.

4. Significant adverse credit findings clearly grounded the Tribunal’s determination.  Such are findings of fact par excellence.[4] The Tribunal’s reasons disclosed that the credibility concerns and issues were raised with the applicant at the hearing.  The applicant’s claims and evidence were assessed for Convention purposes and it was open for the Tribunal to find that the applicant was not entitled to complementary protection. 

   [4] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [67]

5. Consequently, I find no merit to any of the grounds of complaint raised in the applicant’s application.

Applicant’s written submissions

1. Firstly, the applicant refers to an alleged factual error that he argues could have infected the Tribunal’s decision.  Specifically, he says that his visa application mentions a relationship beginning in October 2012 which he says could not be correct given that he was in Australia at that time.  He refers to the application being not in his hand.  Nevertheless, the Tribunal noted the applicant’s submission in this respect and made no findings adverse to him.[5]

   [5] Refugee Review Tribunal Reasons, 7 November 2014, at [46]

2. Secondly, the applicant refers to the Tribunal’s reference in its reasons to his returns to Malaysia during the course of his student visa.  He emphasises that the student visa allowed him multiple entries into Australia, which is factually correct.  This was, however, noted by the Tribunal and there is no allegation in respect of any unlawful activity by the applicant in returning to Australia.  The reference to the returns to Malaysia and in the face of the current claims was relevant simply to his credibility as to his alleged concerns for his safety.

3. Thirdly, the applicant argues that previously and differently constituted Tribunals placed a greater weight on factors raised by the applicant in respect of gangster activity in Malaysia. The Tribunal properly noted that it was not bound by such decisions and, in fact, mentioned these decisions at [75].

4. Fourthly, the applicant referred to a letter from a friend, Scott Trafford, which was in evidence before the Tribunal.[6] The Tribunal accepted that the letter was genuine.  It is clear that the Tribunal took into account the contents of that letter but made a finding which was open to it that the letter does not necessarily corroborate that the applicant’s injury was perpetrated by the Tiga Line gang members.  The Tribunal found the letter not to be corroborative of the applicant’s claims. 

   [6] Refugee Review Tribunal Reasons, 7 November 2014, at [30-31].

5. The remainder of the applicant’s written submissions can be interpreted as seeking an impermissible merits review and do not identify jurisdictional error.

Conclusion

1. I find no merit in any of the grounds of complaint raised by the applicant, I will therefore dismiss the application with costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  16 December 2015