MZAPH v Minister for Immigration

[2016] FCCA 1867

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAPH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1867

Catchwords:
MIGRATION – Application for review of a decision of Refugee Review Tribunal – application seeking to challenge factual findings made by Tribunal – factual findings clearly open – application not disclosing error by Tribunal – application dismissed.

Legislation:

Migration Act 1958

Cases cited:
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

Applicant: MZAPH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 2544 of 2014

Judgment of: Judge Burchardt

Hearing date: 6 July 2016

Date of Last Submission: 6 July 2016

Delivered at: Melbourne

Delivered on: 1 August 2016

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr Young

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal.

2. The Application filed on 15 December 2014 be dismissed.

3. The Applicant pay the First Respondent’s Costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2544 of 2014

MZAPH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed on 15 December 2014 the applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal”) dated 12 November 2014.  The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a Protection (Class XA) visa.

2. The grounds of application, to which I will return in more detail later, assert essentially, first, that the Tribunal accepted the applicant’s claim that he had been convicted of an offence and served time in jail between 1992 and 2004, but did not accept the remainder of his claims and did not explain why those were not accepted.  Second, the grounds assert that the Tribunal made an adverse finding on the applicant’s credibility based on fabricated refugee claims provided in his first Protection Visa application, but failed to consider the fact that the fabricated claims were made by the applicant’s former agent without the applicant’s knowledge.

3. The applicant’s affidavit filed contemporaneously with his application added nothing of any moment.

4. The applicant was given the opportunity by directions made by Registrar Luxton on 1 April 2015 to file any amended application and any affidavits but understandably, given his lack of English and, I would infer, lack of understanding of our legal system, he has not done so.

5. The factual background relating to the application is set out in the first respondent’s written submissions and is not controversial.  What follows is a paraphrase of those submissions.

6. The applicant is a citizen of Malaysia who arrived in Australia on 21 August 2005 on a Visitor Visa.  He became unlawful when he failed to depart Australia following the cessation of the visitor visa on 21 November 2006.  He made an application for a protection visa on 24 June 2010, in which he claimed that he had owned a glass manufacturing factory and had been threatened by a competitor, a powerful government officer.  The competitor had asked local bullies to threaten the applicant and get rid of him or even kill him.  That application was refused by the delegate on 26 August 2010, and that decision was subsequently affirmed by the Tribunal on 22 December 2010.

7. Following an unsuccessful application for Ministerial Intervention, the applicant, on 4 April 2014, again applied for a Protection Visa.  This was permissible in the light of the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71. A covering letter sent with the application by the applicant’s migration agent detailed his claims for protection essentially as arising from his involvement with a local underworld gang. It was submitted that the applicant was made a scapegoat by the gang and had drugs planted in his car and was subsequently arrested and jailed. The death penalty initially imposed was reduced in the ultimate to a 12 year period of imprisonment following bribes paid by the applicant’s mother to the relevant persons. The applicant claimed that while in prison he was almost killed by other prisoners linked to the drug ring, and that, upon release, he and his family were chased by cars driven by drug gang members. The applicant managed to hide in a friend’s home, and after getting his passport he left Malaysia to come to Australia. If returned to Malaysia he was concerned for his personal safety and did not trust corrupt Malaysian authorities.

8. On 12 June 2014 a delegate of the first respondent refused the application for a protection visa, not accepting the applicant’s claims as credible or genuine.  The applicant thereafter applied to the Tribunal to review the delegate’s decision.  On 8 October 2014 the Tribunal invited the applicant to comment or respond to information which is set out at Court Book (“CB”) 141-143.  In part, this arose from the fact that the applicant had stated on his visa application form that he had lived in Malaysia from birth until 2005 and had never travelled outside of his home country, but had presented to the delegate a Singapore driver’s licence issued on 21 February 1998.  This was also inconsistent with imprisonment between 1992 and May 2004.  Further, the applicant in his visa application form had indicated that he had no family in Australia, but in his compliance interview with the delegate stated his wife and child were in Melbourne.  Further, the applicant’s claims in his first visa application were entirely inconsistent with the claims in his second application.

9. The applicant’s agent on 11 November 2014 provided the Tribunal with a translation of the applicant’s Malaysian criminal record.  It shows that he was arrested on 28 May 1992 for possession of heroin and suspected involvement in drug trafficking activities (CB146-147).  This record showed the applicant was sentenced to death by hanging on 6 September 1995, a sentence committed ultimately to a jail sentence for, first, 18 years, subsequently reduced to 12 years.

10. The applicant attended the Tribunal hearing on 12 November 2014 at which he was assisted by an interpreter.  He was represented in relation to the review by his migration agent, who did not attend the hearing.

11. At this point I turn from the paraphrase of the first respondent’s written submissions to the terms of the decision of the Tribunal itself.  The Tribunal’s decision is at CB153-160.

12. The Tribunal set out the application for review and relevant law at CB154-155.  The history of the applicant’s prior application for a visa and for Ministerial Intervention is, as I say, uncontroversial.  The Tribunal’s paraphrase of the relevant law is, in my submission, unexceptionable.

13. The Tribunal summarised the applicant’s claims at paragraphs 9-10 (CB155) as follows:

    “As noted above, the applicant previously made an application for the protection visa.  He claimed in that application that he owned a factory when a government official opened another factory in the city and threatened and harmed the applicant to gain advantage.  The applicant claims in the present application that he was unaware of what was included in his previous protection visa application. 

    In the present application the applicant claims that he could not pursue higher education after completing school because of the discrimination against the ethnic Chinese.  He claims he became a member of a gang which was involved in drug trafficking.  When the government raided the gang, he was made a scapegoat as drugs were planted in his car.  He was charged and convicted.  His mother sold everything and bribed the officials so he was given a 12 years jail term rather than a death sentence.  He was nearly killed in jail by those associated with the gang and after he left jail, his car was chased by drug members.  He hid at a friend’s home until he had obtained a passport and left the country.  The officials are corrupt and will not protect him.  The applicant provided to the Tribunal a copy of his police clearance certificate referring to the criminal conviction.”

14. The Tribunal went on at paragraphs 11-30 (CB155-160) to consider the applicant’s claims.  The Tribunal made a number of significant credit findings adverse to the applicant.  Having noted the provision of the Singapore driver’s licence issued in February 1998, the Tribunal observed at paragraphs 14-19 (CB156-157):

    “The applicant informed the Tribunal the driver’s licence is a false document which he asked a friend to obtain because he needed a driver’s licence or a proof of identity in Australia.  If that claim is to be accepted, the Tribunal is concerned by the applicant’s preparedness to obtain and provide false documents to Immigration officers.  The applicant’s willingness to do so is suggestive of his lack of credibility. 

    Secondly, the applicant stated on the protection visa application form that he had no family in Australia.  He stated that he had never married or in a de facto relationship.  The applicant confirmed in his oral evidence to the Tribunal that he was in a de facto relationship and that his partner and son reside in Australia on student visas.  The applicant explained to the Tribunal that he was worried his son would be implicated if his application was refused and that is the reason he did not mention the de facto relationship or the child.  What is of concern to the Tribunal is that the applicant deliberately provided untruthful information on the application form and he did so because he determined that it better suited his circumstances.  Again, the Tribunal finds that the applicant is not a person of credibility and that he is willing to be untruthful in his dealings with Immigration. 

    Thirdly, and of the utmost concern to the Tribunal, is the applicant’s conduct in making the first protection visa application.  The applicant previously made the application for the protection visa on 24 June 2010.  In that application the applicant claimed the reason he left Malaysia was because he had a glass manufacturing factory and in 2005 another factory opened, owned by a government officer, who wanted to monopolise the market and asked the local bullies to threaten the applicant.  The applicant claimed his factory was sealed and he was forced to flee Malaysia.  He stated he did not wish to return to Malaysia because the government officer may harm him as he did to obey their orders.  These claims are entirely inconsistent with the claims made in the current application.  The applicant confirmed in his oral evidence to the Tribunal that such claims were not true. 

    The applicant claims that he was not familiar with the information in his previous application, which was prepared by an agent.  The Tribunal does not accept that information.  The applicant had been living in Australia for five years before he made his first protection visa application.  He had ample time to prepare for that application and to decide what information he wished to rely on to seek protection.  If the applicant was at all genuine in his claim that he was in need of protection, the applicant would have made at least some effort to read his application for protection before it was submitted.  Presumably, the applicant would have signed the application form to make the application and in his current application he claims to be able to read, write and speak English, so he would have had no difficulty familiarising himself with the content of that first application throughout the application process.  He could have easily asked his migration agent to explain the content of the application and the application process before instructing the agent to go ahead or before paying the agent.  The applicant had ample time and opportunities to familiarise himself with his protection visa application.  The Tribunal does not accept that the applicant was entirely unfamiliar with his previous application as he now claims.  The Tribunal is of the view that the applicant was well aware that false information was being submitted by the agent and he was entirely indifferent about that fact.  The applicant’s willingness to provide false information in his protection visa application, or his indifference about the agent’s conduct in providing false information on his behalf, suggests to the Tribunal that the applicant is not a person of credibility.

    Further, the applicant now claims that the information he provided in his present application is true and correct.  However, if that was so, there appears to be no logical reason for the applicant to have fabricated an entirely different story in his first protection visa application.  That is, if the applicant genuinely believed there was a danger to his life from gang members, as he now claims, and if the information in his present application was true, the applicant would have ensured that such information was the basis of his application, rather than authorise his agent to make up a what now he now claims an entirely false story.  The fact that the applicant made no effort to disclose what he now claims was the real reason for his fear, instead fabricating (or allowing his agent to fabricate) different claims, is a strong indication, in the Tribunal’s view, that the applicant has not been truthful in the claims he put forward in his present application. 

    The applicant stated in his oral evidence to the Tribunal that the agent informed him he needed a visa and the applicant said as long as he had a visa, he did not know what the agent was doing.  The applicant’s suggestion implies that the applicant was willing to make an application for protection, in which he had no interest whatsoever and which he knew to have been false, for the sole reason of enabling him to remain in Australia.  The applicant’s claimed conduct indicates that the applicant is willing to fabricate claims, or allow such claims to be fabricated on his behalf, in a protection visa application, to be able to remain in Australia.  In the Tribunal’s view, that casts strong doubt on the veracity of the applicant’s claim made in the present application.  Essentially, the Tribunal is concerned that the claims put forward in the present application have also been fabricated to enable the applicant to extend his stay in Australia.”

15. This was scarcely the end of the matter.  The Tribunal went on at paragraphs 20-30 to consider certain other aspects of the applicant’s evidence that suggested to the Tribunal that he had not been truthful in his claims.  I do not propose to traverse them, but the conclusions of the Tribunal all seem to me to have been well open to the Tribunal on the facts as they were found and the Tribunal’s conclusion that the applicant did not face any likelihood of harm upon return to Malaysia was well open to it.

16. At court, the applicant who, represented himself with the assistance of an interpreter, referred to his 12 year prison sentence.  He repeated claims that it was the visits to his home by gang members after his release that caused him to fear harm.  He said that five years after he arrived in Australia he heard he could apply for the visa and lodged his first application by an agent in Sydney while he was in Victoria.  He had not even met the agent in person.  He said words to the effect “all I wanted was to stay here and not be deported.  I was doing everything I could to get a visa”. 

17. The applicant went on to say that he had no idea what claims were in the application until he applied a second time.  He referred to his interaction with his second legal advisers.  He referred to needing a driver’s licence when he arrived in Australia and that he bought one and that he was told by a friend it was a genuine document that could be used.  He said when he applied the second time he was not married.  His girlfriend has a visa here; that was why he had not disclosed that he had a girlfriend and a child here.

18. He could not predict the outcome of his application and she did not wish to be implicated.  The applicant said everything he had said was true and the Tribunal did not believe his claims.  He said it was a fact that he served a prison sentence in Malaysia.  He said if he returned and was found by gang members he would lose his life. 

19. The Minister was content to rely upon the written submissions made.  In reply the applicant said that the Tribunal member did not believe his claims were genuine but everything he said was true.  He could not understand why his claim was not considered to be genuine.  He said it could not be proved otherwise. 

Ground 1

The Tribunal accepted part of my claims that I had been convicted of an offence and served time in jail between 1992 and 2004.  However, the Tribunal found that the remainder of my claims had been fabricated.  The Tribunal did not explain why it did not accept the remainder of my claims.

1. The Tribunal did indeed accept that the applicant had been convicted as he has said.  However, the Tribunal made a number of credit findings that were devastating to the applicant’s credibility.  I have set out a substantial tranche of those findings already and referred to the others.  The Tribunal was well aware of the task it was obliged to conduct, namely, to consider the applicant as an applicant for a Protection Visa.  The Tribunal’s findings of fact were clearly open to it on the materials as they stood and indeed on one view might be thought to have been to represent the only reasonable conclusion which could be reached in the light of the history the Tribunal set out.

2. It should be noted that the Tribunal did also consider, albeit it very briefly (at paragraph 32) the complementary protection criterion arising from s.32(2)(aa) of the Migration Act 1958. 

3. There is nothing illogical or unreasonable in the Tribunal’s credit findings, quite the contrary.  This ground represents merits review in its starkest form and is unsustainable.

Ground 2

The Tribunal made an adverse finding on the applicant’s credibility based on fabricated refugee claims provided in his first protection visa application.  In making such adverse finding, the Tribunal failed to consider the fact that the fabricated claims were made by the applicant’s former agent without the applicant’s knowledge.

1. This ground misconceives the nature of the Tribunal’s findings.  The Tribunal did not accept that the applicant had no knowledge of the claims made in the first application.  The Tribunal at paragraph 17 in the passage set out above found that the applicant was well aware that false information was being submitted by the agent and was entirely indifferent about that fact.  That is a finding of fact made by the Tribunal having seen and heard the applicant give his evidence. 

2. The Tribunal’s decision is not one that gives rise to any possibility of jurisdictional error.  It is of course the case that the Tribunal in certain other passages of the decision, as it were, gave the applicant something of the benefit of the doubt as to whether he knew the precise terms of the earlier application, but when read fairly and as a whole the Tribunal was keenly aware of the applicant’s conduct and assessed it negatively.  That assessment was, in my view, clearly open to the Tribunal on the materials as they stood.

3. In all the circumstances, the applicant’s application is not made out and it follows that the application will be dismissed with costs. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 1 August 2016