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[2018] FCA 1700
Federal Court of Australia
2018-11-07
Robertson J
Original judgment source is linked above.
Introduction 1 The applicant applies for an extension of time to seek leave to appeal and also applies for leave to appeal from a judgment of the Federal Circuit Court of Australia given on 25 May 2018. 2 The primary judge summarily dismissed an application for judicial review of the decision of the Administrative Appeals Tribunal given on 17 May 2017, affirming the decision of a delegate of the Minister not to grant the applicant a protection visa. 3 The applicant is a citizen of Malaysia and applied for the visa on 30 October 2015. The delegate refused to grant the applicant a protection visa on 4 February 2016. 4 The applicant claimed to fear harm in Malaysia from religious police who would detain him in a Muslim rehabilitation centre for "faith purification" or sentence him to death for apostasy.
Proceedings in the Tribunal 5 In its written reasons the Tribunal first considered the applicant's credibility. It noted the contradictory evidence provided by the applicant about his involvement with the religious police in 2015. The applicant provided considerable detail about this claim in his statement with his protection visa application. He said that in June 2015 he had been taken to the State Religious Department located on the 34th floor of Komtar Tower, questioned, handcuffed and asked to recite verses from the Koran. He was then released after paying a bribe with a warning that his activities would be monitored. 6 At the hearing before the Tribunal, the applicant said that the religious police came to his house and gave him a warning that he would have to go to a rehabilitation centre. The Tribunal asked the applicant why the religious police let him go with a warning. His answer was that if he was taken to the centre they would not have let him go easily. He had therefore decided to escape from the country. 7 In his statement the applicant said that he applied for the visa to visit Australia in June 2015 and left a month later on 30 July 2015. At the hearing the Tribunal asked how long after the 2015 incident it was before the applicant left the country. His answer was that it was three or four months. The Tribunal asked if anything had happened during that time and the applicant replied that nothing had happened. 8 The Tribunal found that the inconsistencies and contradictions, including the timing, surrounding the applicant's claimed involvement with the religious police in June 2015, which prompted him to leave for Australia and claim protection, significantly undermined the credibility of all his claims. The Tribunal found that this claim was made to strengthen the applicant's overall claims for protection. 9 The Tribunal did not find the applicant credible when discussing the question of divorce. 10 The Tribunal also did not find the applicant to be a credible witness when discussing his time as a Muslim in Malaysia, his attendance at mosque in Australia, his religious activity in Australia and his fear of harm if he was to return to Malaysia. 11 The Tribunal next considered the applicant's claim to have a well-founded fear of persecution for reason of his Christian religion. The Tribunal made the following findings. 12 The applicant's mother is a Christian and as a boy the applicant attended church with his mother and was baptised. 13 The applicant was in a relationship with a co-worker, his now wife, at a hotel. The applicant's now wife's mother was aware of the relationship but her father was not. 14 The Tribunal accepted as plausible that the applicant and his now wife were caught alone on a beach by a group of men and that the applicant was beaten when it was realised they were not married, and then questioned by the religious police. 15 The father of the applicant's now wife demanded that they marry and the marriage was arranged. 16 The applicant completed a pre-conversion course and he was accepted as a Muslim. 17 The applicant and his wife lived in the same village as his wife's family. 18 The applicant did not attend any Christian church during the period between his conversion in 1998 and his departure for Australia in 2015. 19 The applicant's wife and children moved out of his house in 2006 and they reconciled in 2007. In 2013 the applicant and his wife quarrelled and his wife and children again left the house and moved in with her parents. 20 From his conversion in 1998 until his departure for Australia in 2015 the applicant did not attend mosque, other than for family festive gatherings and he did not observe the obligation to pray five times a day. This behaviour continued despite his father-in-law, who the applicant claimed was a devout Muslim and a person who met his Sunni Muslim obligations, living in the same village and only a few houses away. 21 The Tribunal found that this claimed behaviour, and the applicant's father-in-law's acceptance of it, significantly undermined the applicant's claim that his wife's family were strict Muslims. If they were as strict as he claimed, the Tribunal said, they would not have tolerated this behaviour. 22 The Tribunal did not accept as credible that on two occasions the applicant inadvertently took his children to his mother's house when she was hosting church events. 23 The Tribunal did not accept that the applicant was accused of proselytising. 24 The Tribunal noted that the applicant claimed that after the second occasion, see [22] above, in June 2015, he was accused of proselytising and was detained by the religious police. The Tribunal found that the applicant's account of this incident later in the process was inconsistent and contradictory and that the claim was made solely to strengthen his overall claims for protection. 25 At the Departmental interview, the applicant had been asked why, if he considered himself to be a Christian, he had written Sunni Muslim in answer to the question about religion in his Form C. He said it would not have been acceptable to the person who was helping him fill in the form if he had said that he was a Christian. 26 The Tribunal found that the applicant gave his religion as Muslim in his Form C. It found that the applicant attended mosque in Australia with his housemates. It accepted that the applicant began attending a church shortly before the Departmental interview. It found that the applicant had not attended church regularly in Australia. 27 The Tribunal did not accept that the applicant was a member of any Christian community in Australia. The Tribunal found it significant that someone professing to be Christian, and someone who had not been able to openly practise his faith in Malaysia, was not taking advantage of his freedom to attend church and live in a Christian community. 28 The Tribunal found the applicant's claim to want to practise his Christian faith not to be credible. 29 At the Departmental interview, the Tribunal found, the applicant said that if he went back to Malaysia he would be put in an Islamic rehabilitation centre and tortured. He said a Sharia Court would sentence him to death. Alternatively he said that he would be killed in a staged accident. At the hearing before the Tribunal the applicant was asked what he feared would happen if he was to return to Malaysia. The applicant said that if he went back he would be taken to the Rehabilitation Centre and he would be taught about Islam. The Tribunal noted that this was what had happened in 1998. The applicant said it was not the same. It was a different group of religious police and the issue was different. He did not want to be used as an example of what happened to people who tried to convert others or who did not practice their religion. He said that he would be harmed and he "would be disappeared". 30 The applicant said he could not go anywhere in Malaysia as there was an order against him. The Tribunal noted that the applicant had said earlier that he had been let go with a warning. The applicant said that there might not be a legal basis but the police spoke to the religious leaders and then action was taken against people. The applicant said that this type of activity was known. 31 The Tribunal said that if the applicant was to return to a city such as Kuala Lumpur he could settle there and live his life peacefully if he feared harm in Penang. The Tribunal noted that the applicant had the skills necessary to move there as he had been able to support himself in Australia. The applicant repeated his concern about the links between the religious police and the ordinary police. 32 The Tribunal did not find the applicant to be credible when discussing what would happen to him on return to Malaysia. It noted the discussion about the links between the religious police and the Royal Malaysian Police. The Tribunal did not accept that the applicant would be of any interest to the police or the religious police if he was to return to Malaysia because it did not accept that the applicant was accused of proselytising. 33 The Tribunal was satisfied that there was not a real chance that the applicant would be persecuted by reason of his religion if he was to return to Malaysia now or in the reasonably foreseeable future and it found that the applicant's fear was not well-founded. 34 The Tribunal then went on to consider whether the applicant had a well-founded fear of persecution by reason of his race as an ethnic Tamil. The applicant in his statement referred to discrimination against Tamils but made no claim of suffering serious harm because of that discrimination. The applicant said that he was not concerned that the Indian population were treated as second-class citizens but his problems over religion did concern him. The Tribunal found that there was not a real chance that the applicant would be persecuted for reason of his race in Malaysia. 35 The Tribunal then considered whether there was a real chance that the applicant would suffer persecution for reason of his race and religion when those claims were considered cumulatively. The Tribunal was not satisfied that there was such a real chance now or in the reasonably foreseeable future and found that the applicant's fear was not well-founded. 36 The Tribunal then considered whether the applicant fell within the complementary protection provisions. It concluded that he did not.
Proceedings in the Federal Circuit Court of Australia 37 The show cause application filed on 14 June 2017 in the Federal Circuit Court contained the following four grounds (as written): 1. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958. The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon his returns to Malaysia. 2. The Tribunal member failed to consider an integer of Applicant's claim, in failing to consider whether or not a converted Christian (regardless of past persecution) in Malaysia was at risk of harm from Muslim fanatics and Sharia Court, and not able to access effective protection. 3. The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act. 4. The Tribunal has failed to investigate applicant's claim, specially the grounds of persecution in Malaysia. 38 The Federal Circuit Court convened a show cause hearing on 25 May 2018, at the conclusion of which ex tempore reasons for judgment were given. 39 The primary judge recorded that the applicant told him that he, the applicant, was not saying that there was necessarily anything wrong in the Tribunal decision, but the primary judge understood him to be saying he would like someone else to take a closer look at his claims. 40 The primary judge explained to the applicant the limited nature of the jurisdiction of the Federal Circuit Court and the need to address legal issues, such as whether there was a fair hearing opportunity. The applicant told the primary judge that he had consulted a Malaysian lawyer in the last couple of days and that the lawyer would be in a better position to explain his claims. The applicant also told the primary judge that he experienced interpretation problems at the Tribunal hearing. He said that the Tamil interpreter was from Sri Lanka and the applicant had difficulty understanding him. The primary judge asked the applicant if he had raised any interpretation problem with the Tribunal. He said that he had done so, but that the Tribunal had encouraged him to continue regardless. 41 The primary judge found that there was nothing in the application or its supporting affidavit which suggested any problems of interpretation. The applicant had not taken up the opportunity afforded him by procedural orders made by the Registrar to amend his application or provide evidence, such as a transcript. The Tribunal's description of the applicant's evidence at the hearing, set out at [41]-[58] of the Tribunal's decision, gave no clue of any interpretation problem. Indeed it suggested a normal flow of question and answer. The Tribunal hearing record stated that the interpreter was from Tamil Nadu State in India. 42 The applicant submitted that he had analysed the Tribunal decision and found that the issues discussed by the Tribunal were not consistent with what he had said at the hearing. The primary judge said there was no evidence in support of that assertion made from the bar table. Bare assertions made by the applicant at that relatively late stage did not establish any arguable case of jurisdictional error by the Tribunal. 43 As to ground 1, the primary judge said this was a template ground which had been raised in numerous other matters. The Tribunal set out and applied the correct test and made findings that were open to it on the evidence before it. 44 As to ground 2, the primary judge said that the "integer" now articulated by the applicant was not made to the Tribunal, nor did it squarely arise on the material. It appeared that the applicant was retrospectively recasting his claims. While the applicant did claim that he had converted from Christianity to Islam, the claim he raised was that he feared harm from religious police because his father-in-law had told them he was proselytising. The Tribunal considered this claim and made findings in relation to it. The integer now advanced was conceptually distinct from the claims originally advanced by the applicant. 45 As to ground 3, the primary judge said the ground was without substance and did not raise an arguable jurisdictional error. This ground was also a template ground. The primary judge held that the Tribunal's conclusions that the prescribed criteria, ss 36(2)(a) and (aa), were not met were open to it on the material before it and for the reasons it gave. The Tribunal plainly had jurisdiction to review the delegate's decision (as it was a Part 7-reviewable decision) and reached a decision that was open to it in law. 46 As to ground 4, the primary judge said the Tribunal made findings that were open to it for the reasons it gave. 47 Pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the primary judge dismissed the application, with costs.
The application to this Court 48 The grounds of the application to this Court are in common or template form and are as follows (as written): 1. The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation. 2. The Hon. Judge Driver dismissed the application without considering the legal and factual errors contained in the decision of AAT. 49 The application was filed on 21 June 2018. As the primary judge's decision was interlocutory, the application was required to be filed within 14 days after the date of this decision. An extension of time of some two weeks is therefore required. The applicant's affidavit dated 4 June 2018 and filed on 21 June 2018 provides no explanation for the delay but says he was not represented by any solicitor or barrister before the Federal Circuit Court.
The parties' submissions 50 The applicant filed no written submissions. The Court first asked the applicant to say what he wished in relation to the extension of time and the delay. The applicant repeated that he could not get a lawyer for himself and he did not know whether he would be given the extension. He said he could not provide an answer to the question whether he made a mistake about the time limits. 51 On the substance of his application, the applicant said his situation was different and he did not know what would happen to him if he went back to Malaysia. He said the Federal Circuit Court, or the Tribunal, did not understand his situation in Malaysia. He converted himself from Christian to Muslim but he was not able to say that he could not live as a Muslim because Malaysia was a Muslim country. He said that if you convert yourself to Muslim and cannot live as a Muslim in Malaysia it is dangerous. He said he would have a dangerous life in Malaysia because he could not say that he wanted to go back to Christianity as they would not accept him. 52 The respondent Minister submitted that the application for leave to appeal and for an extension of time should be dismissed, with costs. 53 The respondent Minister submitted that the principles generally governing leave to appeal were well established: whether, in all of the circumstances of the case, the decision was attended by sufficient doubt to warrant it being reconsidered by an appellate court; and whether substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; 33 FCR 397 at 398-399. Leave will be more readily granted where an interlocutory decision determines a substantive right, rather than a mere point of procedure: SZTGS v Minister for Immigration and Border Protection [2014] FCA 676 at [20] and cases there cited. Further, when considering whether a decision pursuant to r 44.12(1)(a) was attended by sufficient doubt, the Minister submitted, the principles relating to appeals from a discretionary decision were applicable. 54 The respondent Minister submitted that the learned primary judge was correct to find no arguable case of jurisdictional error by the Tribunal had been demonstrated and to dismiss the application accordingly. The applicant's proposed grounds of review did not demonstrate any appellable error by his Honour. 55 The Minister submitted that common to each aspect of the case was whether the proposed grounds had any prospects of success. The Minister submitted they did not.
Consideration 56 None of the applicant's oral submissions were directed to establishing either error on the part of the primary judge or jurisdictional error on the part of the Tribunal. 57 The proposed grounds of appeal do not correspond with the grounds argued before the primary judge. The applicant needs leave to rely on those grounds: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; 129 FCR 168 at [26]; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]. The applicant must establish, but did not establish, that it is expedient in the interests of justice to allow such grounds to be raised. 58 I note that the applicant gave no explanation for the delay, albeit a relatively short delay, other than that he did not have a lawyer. 59 If there were anything of sufficient substance in the grounds of appeal I would be prepared to extend time and grant leave to appeal. However, as I have said, the grounds of appeal are in common or template form and bear no relation to the judgment of the primary judge or the reasons of the Tribunal. 60 I am not persuaded that the judgment of the primary judge is attended by sufficient doubt to warrant its reconsideration by an appellate court. The adverse findings of credibility were open to the Tribunal and reveal no error in its reasons. I find no error on the part of the primary judge. 61 For these reasons I would refuse the application to extend time and for leave to appeal.
Conclusion and orders 62 I dismiss the application, with costs. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.
CPL17
Minister for Immigration and Border Protection