SZIET v Minister for Immigration

[2015] FCCA 2936

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZIET v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2936

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – show cause hearing – bias – no jurisdictional error – application dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

Legislation:

Federal Circuit Court Rules 2001, r.44.12(1)(a)

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2)(c), 476

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

Applicant: SZIET

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1627 of 2015

Judgment of: Judge Street

Hearing date: 30 October 2015

Date of Last Submission: 30 October 2015

Delivered at: Sydney

Delivered on: 30 October 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms C Hillary
DLA Piper

ORDERS

1. The application is dismissed under r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

2. The first and second applicants pay the first respondent’s costs fixed in the sum of $3100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1627 of 2015

SZIET

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 20 May 2015 affirming a decision of the delegate not to grant the applicant a protection visas. The first applicant is a citizen of Malaysia, the second named applicant is a citizen of Thailand and the partner of the first applicant, and the third named applicant is their son, who was born in Australia and has been issued with a passport by Thailand and was found to be a citizen of Thailand.

2. The first and second applicants have a further child born in Australia who is not included in this application for reasons.  The first named applicant arrived in Australia on 20 November 2003 on a subclass 976 electronic visa in a particular name and became and unlawful person in Australia on 20 February 2004, when that visa expired.  On 17 February 2005, the first applicant was detained and was the subject of a supervised departure on 23 February 2005.  The first applicant arrived in Australia again on a Malaysian passport in a different name on 6 June 2005 and made an application for protection on 18 July 2005.  That application was refused by the delegate on 23 August 2005 and the applicant applied to the Tribunal for a review of the delegate’s decision and the Tribunal affirmed the delegate’s decision on 22 December 2005. 

3. The second named applicant arrived in Australia on a subclass 572 visa on 1 August 2008 and departed Australia in September 2009 and then arrived in Australia again on 21 October 2009 and departed Australia on 3 March 2012 and returned to Australia on 7 April 2012 on a subclass 820 spouse visa.  Consistent with the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, the first applicant made a second application for protection which was assessed by the Tribunal on the ground of complementary protection under s.36(2)(aa) of the Act.

4. The first applicant claimed a fear of harm in Malaysia due to the fact that he is of Chinese ethnicity and a Buddhist and that he was persecuted by the Malaysian government as a result of his involvement in demonstrations in support of the release of the Deputy Prime Minister.  The Tribunal noted that the second and third applicants had not previously made application for protection and accordingly assessed their entitlement to protection under the Refugee Convention as well as complementary protection in respect of their country of nationality being Thailand and that, also, as the receiving country. 

5. The proceedings were the subject of directions on 23 July 2015, fixing the matter for hearing today under r.44.12(1)(a) of the Federal Circuit Court Rules 2001.  The applicants were given leave to file an amended application, affidavit of evidence and submissions.  No such documents were filed.  Under the grounds of the application are the following paragraphs:

   1, I am a Malaysia citizen and suffered from discrimination as Chinese.

   2, RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence.

   3, The Tribunal's decision could give rise to an apprehension of bias in the mind of a reasonable observe

6. In relation to the first ground, I accept the first respondent’s submission that it fails to identify any arguable jurisdictional error and simply seeks to raise an issue of the applicant suffering discrimination as a Chinese, which was a matter for the Tribunal to determine, and nothing in ground 1 identifies any arguable jurisdictional error. 

7. In relation to ground 2, the reference to the Tribunal evaluating the applicant’s truthfulness was a proper matter for the Tribunal to determine.  Nothing raised by ground 2 identifies any arguable jurisdictional error. 

8. In relation to ground 3 an issue of bias must be clearly alleged and properly proven.  No issue of bias is proven further adverse findings by the Tribunal are not a basis upon which a ground of bias can properly be made out.  Adverse findings are not conduct by which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring a fair and impartial mind to the determination of the matter on its merits.  Ground 3 fails to identify any arguable jurisdictional error. 

9. The application also had three paragraphs set out under Orders Sought by the Applicant that might be capable of being comprehended as alleged grounds of jurisdictional error.  They are as follows:

   1, I don't think DIBP and RRT's decision are fair and reasonable as they failed to take a good consideration in my real situation in my home country and ignoring the discrimination of my background

   2, RRT did not consider my statement and comments given to the questions asked in the hearing and judge my fears simply by the member's prejudice.

   3, RRT failed to prudently consider my risk, discrimination and financial hardship, especially to my children and family if we return to origin.

10. In relation to the first paragraph under the heading Orders, it is apparent that on 16 April 2015, the Tribunal invited the applicants to attend a hearing on 19 May 2015 consistent with a statutory regime.  On 19 May, the first applicant appeared before the Tribunal and the second and third applicants did not appear and the first applicant gave evidence and presented arguments and was assisted by an interpreter. 

11. It is apparent from the reasons of the Tribunal that it explored with the applicant the applicant’s claims and the Tribunal’s concerns in relation to the applicant’s credit in respect of those claims and made adverse findings that were open to the Tribunal.  Relevant to and in relation to the first applicant, the Tribunal found:

    21. The Tribunal does not accept any of the applicant’s claims to have been involved in demonstrations resulting in his detention or that he has ever been harassed, threatened or intimidated by the police, or that the applicant was monitored by the police or his brother has been told he will be monitored if he returns to Malaysia. The Tribunal also does not accept that the applicant or his brother has ever been actively involved in any political parties or supporting Anwar Ibrahim or that he has any adverse political profile in Malaysia. The Tribunal firstly considers that the applicant’s failure to lodge a Protection visa application during his initial visit to Australia when he arrived in 2003 is indicative of the fact that he has manufactured his claims to have been involved in political opposition resulting in him being detained, warned, monitored and harassed. The applicant told both the Department and the Tribunal that he did not make an application for a Protection visa when he was initially in Australia between 2003 and 2005 because he did not know about such visas, and he did not have any representation at that time. As discussed during the hearing, the applicant was in Australia between November 2003 and February 2005, much of that time as an unlawful non citizen. The Tribunal considers that if the applicant was of any interest to the authorities when he first came to Australia, such that he feared returning to Malaysia, he would have sought to determine how he could remain in Australia lawfully and to make inquiries about visas which may enable him to do so. In the Tribunal’s view, the applicant’s failure to make an application for a Protection visa between 2003 and 2005 when he was first in Australia is indicative of the fact that he did not fear harm in Malaysia at that time, and he had no previous involvement in opposition politics or support for Anwar Ibrahim. The Tribunal also does not accept that the applicant had any such involvement during the four months he was in Malaysia between February 2005, when he was the subject of a supervised departure from Australia, and his return on a different passport and different name in June 2005.

    …

    24. …However, the Tribunal is not satisfied that even if he chose to participate in such any rallies or demonstrations upon his return to Malaysia that he would be involved as an organiser or that any attendance would result a real risk that he would suffer significant harm. 

    …

    27. … Accordingly, the Tribunal is not satisfied that there is a real risk the applicant will suffer significant harm upon his return to Malaysia because he is a Buddhist or ethnically Chinese.

    28. … Nor does the Tribunal accept the applicant’s vague claims at the hearing that his children may be the subject of harm and forced to do “political things”. 

    29. The applicant has claimed that his [child] will be unable to obtain citizenship in Malaysia and told the Tribunal that he received advice from the Malaysian Embassy that his [child] would not be able to obtain citizenship because the child was born before he and his partner married. He also stated that he is aware of someone who was denied citizenship on this basis because he had a foreign partner. The Tribunal does not accept the applicant’s claims that his [child] would be unable to obtain citizenship or that he was given advice from the Malaysian authorities in this regard. As discussed with the applicant during the hearing, the relevant Malaysian legislation  indicates that a child born outside of Malaysia to a Malaysian citizen father is entitled to citizenship.  Although the applicant has not made any claims that his return to Malaysia will result in him being separated from his family. The Tribunal is not satisfied on the evidence before it that the applicant will be unable to make arrangements with the Malaysian authorities to ensure he is able to reside with his family in Malaysia.

    30. The Tribunal has also not accepted that the applicant had any political profile in Malaysia when he left in either 2003 or again in 2005 such that he will suffer significant harm for these reasons upon his return to Malaysia. The Tribunal has also not accepted that the applicant will suffer significant harm because of his ethnicity or religion or that there are any other reasons that will cause him to suffer significant harm upon his return to Malaysia. The Tribunal is not satisfied, having considered all of the evidence before it, that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk that he will suffer significant harm, such that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

12. It was in those circumstances the Tribunal found that the first applicant was not a person in respect of whom Australia had protection obligations and that the criteria under s.36(2)(aa) of the Act had not been made out. The Tribunal considered the second and third applicants’ potential claims to protection as citizens of Thailand and relevantly found:

    32. The Tribunal is prepared to accept that the second named applicant’s parents are displeased that their daughter has entered into a relationship and had two children prior to marriage. However, the Tribunal is not satisfied that there is any evidence that she will be without family support in Thailand or that she would be unable to support herself or her children if she chose to return to Thailand with her children, rather than accompanying the applicant to Malaysia.  The Tribunal is not satisfied, therefore, that there is a real chance that the first or second named applicants will suffer serious harm in Thailand. Accordingly, the Tribunal is not satisfied that the second and third named applicants have a well founded fear of persecution for a Convention reason now or in the reasonably foreseeable future. The Tribunal finds, therefore, that the second and third named applicants do not meet s.36(2)(a) of the Act.

    33. The Tribunal is also not satisfied that there is a real risk that the second and third named applicants will suffer significant harm if they are removed from Australia to Thailand. The Tribunal finds, therefore, that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk they would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk that they would be arbitrarily deprived of their life, that the death penalty will be carried out, that they will be subjected to torture, that they will be subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

13. It was in those circumstances that the Tribunal found the second and third applicants were not entitled to protection and that the criteria under s.36(2)(a) and s.36(2)(aa) was not made out and that the applicants failed to satisfy the criteria under s.36(2)(c).

14. Paragraph 1 under the orders sought is, in substance, an impermissible challenge to the adverse findings of the Tribunal.  I accept the first respondent’s submission that there is no evidence to raise an arguable case that the Tribunal failed to comply with its statutory obligations in the conduct of the review and paragraph 1 fails to make out any arguable case of jurisdictional error.  In relation to para.2 of the orders sought it is apparent that the Tribunal took into account the applicants evidence and the reference to the questions reflecting the member’s prejudice is not a ground upon which bias can be made out.  It was appropriate for the Tribunal to determine the applicant’s credit and to do so by questions.

15. The asking of questions by the Tribunal is not of itself conduct by reason of which a fair-minded lay observer might reasonably apprehend the Tribunal might not bring an impartial, independent mind to the determination of the matter on its merits.  Paragraph 2 fails to make out any arguable jurisdictional error.  In relation to para.3 of the orders, this appears to be no more than an impermissible challenge to the adverse findings of the Tribunal and fails to make out any arguable jurisdictional error.

16. The application fails to disclose any arguable case of jurisdictional error. The applicant from the bar table said that the Tribunal did not fully consider his case and that he would suffer discrimination in Malaysia by reason of being Chinese. Nothing said by the applicant identifies any arguable jurisdictional error. This is an appropriate case for the Court to exercise its power under r.44.12(1)(a) of the Federal Circuit Court Rules 2001. The application is dismissed under r.44.12(1)(a) of the Federal Circuit Court Rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 2 November 2015