SZQDC v Minister for Immigration

[2011] FMCA 532

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQDC v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 532

MIGRATION – Review of RRT decision – whether Tribunal required to provide independent country information – reasonable state of satisfaction – merits review – bias – whether Tribunal required to make enquiries.

Migration Act 1958 (Cth), ss.424A(1), 424A(3)(a), 424AA

MIMIA v SGLB (2004) 207 ALR 12

Applicant: SZQDC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 675 of 2011

Judgment of: Raphael FM

Hearing date: 4 July 2011

Date of Last Submission: 4 July 2011

Delivered at: Sydney

Delivered on: 4 July 2011

REPRESENTATION

For the Applicant: In person

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application be dismissed.

2. The Applicant to pay the First Respondent’s costs assessed at the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 675 of 2011

SZQDC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Malaysia of Chinese ethnicity.  He arrived in Australia on 27 June 2008 as the holder of a short-term visitor’s visa.  He applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 31 August 2010.  On 23 November 2010 a delegate of the Minister refused to grant a Protection visa and on

   
   

   17 December 2010 the applicant applied for review of that decision from the Refugee Review Tribunal.  The applicant appeared before the Tribunal and gave evidence to it.  On 15 March 2011 the Tribunal determined to affirm the decision under review.

2. The basis of the applicant’s claim to be a person to whom Australia owed protection obligations was his association with the family firm, which he originally stated was involved in the sale of traditional Chinese medicine, but later agreed was something of a mini-market.  The applicant told that in 2007 and 2008 the business was losing money because the economy was slow at the time.  Up until that time it had been paying protection money to a Malaysian gang, which the applicant named.  Because of the difficulties that the business was having, the applicant told his father that he should not make any more payments to the gang and, whilst this seemed to be a satisfactory approach for some time, eventually in March 2008 members of the gang came into the premises and demanded money.

3. They were not paid and so they set about damaging the business premises and assaulting the applicant.  The applicant told that the gang was in the premises for about half an hour and although the police were called, they arrived late.  However, the applicant said their arrival saved his life.

4. The applicant told that his family took the matter to the police at a superior level because they were aware that the local police turned a blind eye towards this type of activity. However, when they did that they discovered that the more senior police officers were involved with the gang. The applicant told that on or about 30 April 2008 he was involved in a motor vehicle accident when the car in which he was driving was followed and eventually rammed by persons whom he claimed he recognised as being members of the gang who had come into his home.

5. The applicant told that after this incident he had gone away and gone into hiding, but eventually in June 2008 he was able to obtain a visitor’s visa for Australia and came here. He remained in this country for some two years without making an application for a protection visa but was eventually discovered by the migration department and advised that he would be deported. At this stage he made his claim. The applicant told the Tribunal that he feared that the gang would harm him should he return.

   “The Tribunal asked why the gang would still be looking for the applicant three years after the events he described.  Especially so given his evidence his father was still operating the same business in Malaysia, apparently unaffected by the gang.  The applicant said because the gang had not got the money they were still hunting for him.  The Tribunal asked how his father had been allowed to operate the business if there was money still owing to the gang.  The applicant laughed and said that his father had been paying them the money.  The Tribunal asked why the gang would still be looking for the applicant in those circumstances.” [61 CB 80]

6. The Tribunal questioned the applicant about his claims and put to him, in a manner prescribed by s.424AA of the Migration Act 1958 (Cth) (“the Act”), concerns that it had. These are all set out in the Tribunal’s decision report. In respect of the applicant’s failure to make an application for a protection visa until he had been found by the department, the Tribunal said:

   “The Tribunal noted that it seemed that the applicant had only applied for protection in Australia after he was detained by the police and questioned about being illegaly resident Australia.  

   
   

   It seemed that he applied for protection when he became aware he must return to Malaysia.  The applicant said yes, at that stage he was thinking about that.  He did not know what to do Tribunal also noted that he had indicated on the PVA that he had applied for a bridging E visa at this time, and after so applying he applied for protection in Australia.” [66 CB 81]

7. In its findings and reasons, the Tribunal explained, at some length, why it could not accept the credibility of the applicant’s claims.  One of the reasons was the inconsistencies in the applicant’s evidence about what occurred when the business was raided on 21 March 2008.  One moment the applicant had said that the police had arrived 30 minutes after the gang had left, and at another stage he had said that the arrival of the police had saved his life.  This inconsistency caused the Tribunal to indicate that his evidence reflected adversely on his credibility generally.

8. Whilst the Tribunal accepted that there were problems with corruption in Malaysia, it could not find from the evidence provided by the applicant or any independent country information that in Selangor, where the incidents took place, that this was particularly targeted at Chinese as opposed to being a matter under which the general population suffered.  The Tribunal was also concerned about the manner in which the applicant had told the story about the car being rammed.  Again, the reasons expressed at [96 CB 87] it concluded that the applicant had been putting forward inconsistent stories, which reflected adversely on his credibility.

9. The Tribunal had serious concerns about the applicant’s late application for a protection visa.  At [98 CB 88] the Tribunal deals with the applicant’s interview with a compliance officer in which he had stated that he had overstayed his visa because he wanted to do some sightseeing and then had worked on a farm picking fruit.

   “He told the compliance officer that he planned to leave Australia in about a months’ [sic] time when he had collected some debts.  He was asked if he was willing to leave Australia and he replied that he would leave as soon as required.  The Tribunal raised this information with the applicant during the hearing, noting that at no time had he told the compliance officer about what he now claimed had happened to him in Malaysia, or that he was in fear of returning there despite being given the direct opportunity to make these claims.  The applicant sought to explain these very significant omissions by saying that it was not necessary to tell his story, and he did not know about protection visas. 

   
   

   The Tribunal finds this disingenuous…The Tribunal is of the view that the applicant told the compliance officer what he did because he was willing to return to Malaysia, he was not in fear of persecution in Malaysia, and he had stayed longer in Australia to make money and look around.”

10. Because of the Tribunal’s concerns about the applicant’s credibility, as illustrated above, it concluded that he did not have a well founded fear of persecution for a convention reason.

11. On 8 April 2011 the applicant filed with this court an application for a review of the Tribunal’s decision.  There were four grounds, the first being:

    “The Tribunal did not give to the applicant before the hearing the independent information that it had about politics about Malaysia. The Tribunal used this information ( RRT decision record page11(57), page 15(75) and page 17 ). This was against section 424A of the Migration Act 1958.”

12. As Mr Pinder points out in his helpful written submissions, it is well settled that independent country information is exempt from the obligations set out in s.424A(1) of the Act by virtue of s.424A(3)(a). The information relied on by the RRT in respect of the political situation in Malaysia constituted such exempt information as it was not about the applicant specifically. There is no merit in this claim made by the applicant in this first ground of application.

13. The second ground of application was:

    “The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.”

14. It is correct that the Tribunal must come to a state of satisfaction in order to grant the applicant a visa but in this particular case it did not come to any state of satisfaction and it was unable to do so because of the concerns that it had about the applicant’s credibility.  Without any further particulars of the ground, I am unable to say that it is one that this court can accept.

15. The third ground was:

    “The Tribunal’s decision was unjust.  It was made without taking into account the full gravity of applicant circumstances and the consequence of the claim.”

16. This is clearly a matter which goes only to the merits of the applicant’s claim.  It is not a matter that the court can take into account in considering whether or not the Tribunal fell into jurisdictional error in the manner in which it reached its decision.  The applicant again does not particularise the manner in which the Tribunal failed to take account of the gravity of his circumstances or the consequences of his claim but a reading of the Tribunal’s decision record would seem to indicate that it did both of those things.

17. The fourth ground was:

    “The RRT has failed to investigate applicant claim, specially the grounds of persecution, in Malaysia.  Therefore, the Tribunal decision dated 15 March 2011 was effected by actual bias constituting judicial error.”

18. It is now well settled that there is no obligation upon a Tribunal to make particular enquiries about an applicant’s claim: MIMIA v SGLB (2004) 207 ALR 12 at [43]. The Tribunal did have before it independent country information concerning this type of activity in Malaysia and accepted that it occurred. What it did not accept was that it was aimed particularly at ethnic Chinese, which would have brought that type of activity into a convention nexus. However, even if the Tribunal had accepted this part of the applicant’s argument, it still remained open for it to decide that the particular events that he had described did not occur. If there is no obligation upon a Tribunal to make enquiries, then the failure to do so cannot be evidence of bias; an allegation that must be specifically made and proved.

19. Having considered the application as a whole, I am of the view that the applicant has failed to convince me that the Tribunal fell into jurisdictional error in the manner in which it reached its decision.  The application is dismissed.  The applicant must pay the respondent’s case which I assess at the sum of $4,000.00.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  11 July 2011