BSW17 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-02-19|Before: Perry J

The application is dismissed.
The applicants are to pay the costs of the first respondent as agreed or assessed. THE COURT NOTES THAT:
While a final calculation has not yet been undertaken, the legal representative for the Minister estimated that his legal costs would likely be in the order of $2,500. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The applicants are married. They are both citizens of Malaysia and are of Chinese ethnicity. They seek leave to appeal from the decision of the Federal Circuit Court (the Court below) dismissing their application on a show cause hearing under rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) on the ground that it did not raise an arguable claim for relief. The application sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal). By that decision, the Tribunal affirmed a decision by the delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The second applicant's claim for a visa was dependent on those of her husband, the first applicant. 2 The applicants did not have legal representation in this Court or in the Federal Circuit Court. The first applicant appeared at the hearing of the application for leave to appeal with the assistance of a NAATI accredited Level 3 Professional interpreter in Mandarin and English. The first applicant confirmed that he made submissions on his own behalf and on behalf of his wife. Written submissions were filed in advance of the hearing by the Minister, but not by the applicants.

BACKGROUND 3 The primary judge sets out the somewhat complicated history of visa applications by the applicants which preceded their second application for protection visas under different names on 15 December 2014. This appeal relates to the second application. 4 The first applicant claimed to fear harm if returned to Malaysia by reason of his Chinese ethnicity. The application for protection visas was refused by a delegate of the Minister on 14 April 2015, having found that the applicants were not credible witnesses and were not owed protection. 5 On 29 March 2017, the Tribunal affirmed the delegate's decision. 6 In its reasons for decision, the Tribunal identified with specificity the first applicant's claims in his first and second applications for a protection visa. The Tribunal summarised the various exchanges it had with the applicants, putting to them concerns that the Tribunal had about their claims including, in accordance with s 424AA of the Act, putting to the first applicant differences in the information provided by the second applicant. 7 The Tribunal also noted country information on Malaysia contained in a Department of Foreign Affairs and Trade (DFAT) country information report which it discussed with the first applicant indicating among other things that: ethnic Chinese make up 24.8% of Malaysia's population; there are no laws or constitutional provisions which directly discriminate against Chinese Malaysians; and that, while Chinese Malaysians generally do not experience discrimination or violence on a day-to-day basis, they may face lower levels of discrimination when attempting to gain entry into the State's tertiary system or the civil service. 8 The Tribunal found that the first applicant was not a witness of truth and had fabricated his material claims for the purpose of obtaining a protection visa. The Tribunal found that the applicants had changed their names for the purposes of obtaining new passports and returning to Australia. While the Tribunal accepted that the first applicant may have suffered some discrimination in Malaysia because of his Chinese ethnicity, it was not satisfied that any such discrimination would have amounted to serious harm or significant harm. The Tribunal rejected the first applicant's claims to have been detained and questioned by police for allegedly spreading anti-government pamphlets and did not accept that he had been detained for several days, beaten, and humiliated. Nor did the Tribunal accept that the first applicant was released with a monitoring device and that his daily operations were monitored by police. The first applicant's claims about the circumstances in which he left Malaysia and the threats allegedly from police and authorities were also rejected by the Tribunal, as was his claim to be associated with a union or political party in Malaysia. 9 The Tribunal accepted that the first applicant is a Buddhist but found that he had not suffered any discrimination in Malaysia because of his religion and will be able to practice Buddhism without problems if he returns to Malaysia now or in the reasonably foreseeable future. 10 Accordingly, the Tribunal found that the first applicant was not a person in respect of whom Australia owed protection obligations under the 1951 Convention Relating to the Status of Refugees. opened for signature 28 July 1951. 189 UNTS 137 (entered into force 22 April 1954, as amended by the 1967 Protocol Relating to the Status of Refugees. opened for signature 31 January 1967. 606 UNTS 267 (entered into force 4 October 1967), and therefore did not meet the criterion for the grant of a protection visa in s 36(2)(a) of the Act (the refugee criterion). Nor was the Tribunal satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there was a real risk the first applicant will suffer significant harm so as to meet the alternative criterion for a protection visa under s 36(2)(aa) (the complementary protection criterion). 11 Before the Federal Circuit Court, the first applicant stated that the Tribunal did not believe that he and his wife had faced discrimination in Malaysia, that the Tribunal had failed to give his case prudent consideration, and that he wished that the Tribunal had believed him (FCC reasons at [30]). The primary judge found that the applicant had not demonstrated any jurisdictional error in the Tribunal's decision. In particular, the primary judge found that: 45. The Tribunal's findings would appear to be open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Those findings would not appear to have been tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative bases or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). 46. A credit finding is sound if it was "open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility." (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547). 47. It is also well-established that the Tribunal is not required to accept, uncritically, any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J). 48. There is nothing in the Tribunal's decision record to suggest that the Tribunal had not considered the Applicant's evidence or that it had failed prudently to consider the Applicant's risk of discrimination or financial hardship.

3.1 Relevant principles 12 The applicants require leave to appeal to this Court because the decision below was interlocutory in nature: see r 44.12(2) of the FCC Rules and s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). A decision on whether to grant leave to appeal is discretionary. Relevant factors include: whether in all of the circumstances the decision is attended with sufficient doubt to justify its reconsideration on appeal; and whether substantial injustice would result if leave were refused, assuming the decision at first instance to be wrong (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (the Court)). The question of whether an appeal would enjoy sufficient prospects of success to justify the grant of leave is approached at a reasonably impressionistic level: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 (MZABP (FCA)) at [62]-[63] (Mortimer J) (by analogy). (I note that the approach of Mortimer J in MZABP (FCA) in this regard was endorsed on appeal in MZABP v Minister for Immigration and Border Protection (No 2) [2016] FCAFC 138 at [38] (the Court)). 13 In determining whether an appeal would have any merit, it is important to emphasise the limited jurisdiction of the Federal Circuit Court on judicial review to interfere with a decision of the Tribunal. The jurisdiction of the Federal Circuit Court is confined to deciding whether the Tribunal's decision was made lawfully under the Act, that is, whether the Tribunal's decision is invalid by reason of a jurisdictional error. This Court in turn must decide whether the Federal Circuit Court wrongly held that there was no jurisdictional error. The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria by which the applicants' visa applications must be assessed under the Migration Act, or if it failed to hear and determine their applications in accordance with the requirements of procedural fairness: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court). However, neither this Court nor the Federal Circuit Court has jurisdiction to grant the applicants a visa, to consider whether the applicants satisfy the criteria for the grant of protection visas, or to correct mistaken findings of fact by the Tribunal: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). The question of whether or not this Court or the Court below agrees with the Tribunal's decision is not, therefore, a basis for finding that decision invalid, even if another decision-maker might have taken a different view of the evidence and reached a different decision.

3.2 Should leave be granted? 14 I have treated each of the draft notice of appeal, the application for leave to appeal, and the affidavit affirmed by the first applicant on 16 October 2017 as disclosing the grounds that the applicants would seek to argue in the event that leave to appeal is granted. 15 In their draft notice of appeal, the first applicant alleges that: 1. I am a Malaysia citizen and suffered from fears for returning to my home country due to discrimination 2. I cannot go back to Malaysia since I am very scared to be sentencing and discriminated. 3. [Refugee Review Tribunal] member and the Federal [Circuit] Court did not well consider of my fears and persecution if returned to my home country. (errors in the original) 16 Grounds 1 and 2 of the draft notice of appeal express the first applicant's disagreement with the decision of the Tribunal and would amount to an attempt to reargue the question of whether he and his wife should be granted protection visas. Similarly in his oral submissions, the first applicant submitted that he wanted to stay in Australia because of the discrimination he feared if he were returned to Malaysia and that he felt that Australia had been fair to him. However, for the reasons I have earlier explained at [13], the primary judge rightly held that: 29. … the role of this Court is very different to that of the tribunal. It is not for this Court to reconsider his claims and make different factual findings or reach different conclusions. I further explained that this Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal's decision is affected by a mistake that goes to the jurisdiction of the Tribunal. Disagreement with the findings and conclusions of the Tribunal rarely by itself establishes such a mistake. 17 Ground 3 of the draft notice of appeal is expressed in very general terms. It does not identify any specific failure by the Tribunal to consider the applicants' claims. In any event, it is apparent that the Tribunal identified the first applicant's claims with particularity and addressed each of them in detail. Nor does the notice of appeal identify any specific error in the decision of the Federal Circuit Court and, in any event, it would appear that the first applicant's complaint is that the Federal Circuit Court failed to consider the substance of his claims to fear harm if returned. However as I have explained, it is not open to the Federal Circuit Court to undertake that task. 18 For these reasons, I do not consider that the draft notice of appeal reveals any arguable error in the decision of the Federal Circuit Court. 19 In the application for leave to appeal, the first applicant identifies two further potential grounds: 1. I am a Malaysia citizen and applied for a subclass 866. I did provide to [the Department of Immigration and Border Protection], AAT and Federal [Circuit] Court with sufficient supporting documents. 2. ... 3. AAT and Federal [Circuit] Court failed to consider my explanation and supporting documents to support my appeal which I believe it is a legal error (I note that Ground 2 merely repeats Ground 3 of the Draft Notice of Appeal, and is therefore not extracted above.) 20 Again, these grounds are expressed in the most general of terms. They do not identify any particular documents which the Tribunal failed to consider and, as the primary judge found at [48], there is nothing in the Tribunal's decision which suggests that it did not consider the applicants' evidence. 21 As to the decision of the Federal Circuit Court, it may be that the first applicant complains of the treatment by the primary judge of a submission handed up by him at the commencement of the hearing below. I note that the submission was filed without objection in the Court below. The submission is said to refer to various materials in relation to racial discrimination in Malaysia (FCC reasons at [28]). There was a dispute in the Court below as to whether or not the submission had been given to the Tribunal. However, the primary judge found that "[i]n any event, the document identified as a submission by the Applicant does not otherwise address the issue as to whether the decision of the Tribunal was affected by jurisdictional error", explaining the limited role of the Court as opposed to that of the Tribunal (FCC reasons at [28]-[29]). For the reasons I have already given, the primary judge was plainly right in holding that it was not open to her to reconsider the applicants' claims for protection. 22 Furthermore, no arguable error has been demonstrated in the primary judge's finding that the Tribunal's findings, including its adverse credibility findings, were open to the Tribunal. It has not been demonstrated that those findings were not based on rational grounds or lack a probative basis. Moreover, the Tribunal's detailed summary of the hearing before it demonstrates that it afforded the applicants an opportunity to address the matters which concerned the Tribunal and ultimately underpinned its adverse findings as to credit. In those circumstances, the primary judge rightly found that the Tribunal's findings would not appear to have been tainted by any failure to afford the applicants' procedural fairness. In this regard, as the primary judge found, the Tribunal was not required to accept the applicants' claims uncritically (FCC reasons at [47]). 23 Finally, in his affidavit in support of his application for leave to appeal, the first applicant states: 2. My appeal application for Federal Circuit Court has been dismissed and I disagree with its decision 3. I wish to do further review with your court and get a more fair decision 24 These statements express the first applicant's disagreement with the decision of the Federal Circuit Court but they do not identify any appellable error in that decision for the reasons I have earlier given.

CONCLUSION 25 For these reasons, the application for leave to appeal enjoys no reasonable prospects of success and should be refused. As the Minister has been successful, an order should be made that the applicants are to pay the costs of the first respondent as agreed or assessed. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.

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