FEDERAL COURT OF AUSTRALIA

EBT17 v Minister for Home Affairs [2019] FCA 200

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed, with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The applicant is a male citizen of Malaysia of Tamil ethnicity and an adherent of the Hindu religion. He arrived in Australia on 22 September 2016 on a Visitor visa, and on 8 November 2016 lodged an application for a protection visa pursuant to s 36 of the Migration Act 1958 (Cth). In his application he claimed to fear harm on the basis of a number of matters, including his Tamil ethnicity, his Hindu religion, his support for “HINDRAF”, or “Hindu Rights Action Force” (a coalition of non-governmental organisations committed to the preservation of Hindu rights and heritage in Malaysia) and the consequences that flowed from his participation in a Bersih rally in 2016.

2    A delegate of the Minister for Home Affairs considered the application and declined to grant the visa. The applicant applied to the Administrative Appeals Tribunal for a review, and on 15 August 2017 the Tribunal affirmed the decision of the delegate. The applicant then sought judicial review of the decision of the Tribunal in the Federal Circuit Court of Australia (FCCA), and on 25 June 2018 that court conducted a show cause hearing pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 and dismissed the application; EBT17 v Minister for Immigration & Anor [2018] FCCA 1666 (FCCA decision). That decision was interlocutory in nature, and the applicant requires leave to appeal to this court; s 24(1A) Federal Court of Australia Act 1976 (Cth).

3    On 5 July 2018 the applicant filed an application for leave to appeal, which was accompanied by an affidavit in support. The affidavit indicated that the applicant was self-represented, relied on the grounds of appeal advanced in the FCCA, and noted that he was seeking legal advice. Two days prior to the hearing of the matter, solicitors filed a notice of appearance on behalf of the applicant and on the same day submissions were filed in support of his application which indicate that the applicant relies on grounds 4 and 6 as advanced before the primary judge. On the day of the hearing counsel for the applicant further supplemented the particulars (without objection). The final form of the grounds is as follows:

4.    The Tribunal failed to give reasons as required when it stated:

"25. For all the reasons set out herein, the Tribunal was not satisfied the applicant was generally credible".

Particulars

1.     The failure to give and/or particularise the reasons why the Tribunal was not satisfied the applicant was generally credible, means the applicant cannot understand or challenge the basis of this decision,

2.     Further, the claims were not generally subject to criticism by the Tribunal and accordingly no significant findings of credit were made against him so as to substantiate the Tribunal's conclusion.

3.     The finding that the applicant was not generally credible was critical to the decision by the Tribunal to reject his application before the AAT.

4.    The Federal Circuit Court committed jurisdictional error by misunderstanding the decision of the Tribunal in holding that the reference to “the reasons set out herein” is clearly a reference to all of the Tribunal’s adverse credibility findings and reasons’ [50] when the Tribunal was not referring to ‘all of the Tribunal’s adverse credibility findings and reasons’ but only referring to the applicant’s ethnicity, his religion, and his political opinion.

5.    Further, the Federal Circuit Court committed jurisdictional error by not finding the Tribunal committed jurisdictional error because of Particulars 1, 2 and/or 3.

6.    Further, the Federal Circuit Court erred when it stated ‘the Tribunal’s consideration of the applicant’s evidence and its findings provided a sound basis for it to reject the credibility of his claims and this ground cannot be made out’ [51], because the Federal Circuit Court was not thereby addressing the relevant Ground of appeal #4, but commenting on another matter that was not raised by the appellant in Ground 4.

6.    The Tribunal failed to give reasons and/or particularise the reasons why the Tribunal was ultimately satisfied the applicant was not a truthful witness as required when it stated:

"34. After considering all his claims, the Tribunal was ultimately satisfied the applicant was not a truthful witness."

Such failure amounting to an error of law.

Particulars

1.     The applicant's claims were not generally subject to criticism by the Tribunal and accordingly no significant findings of credit were made against him so as to substantiate the Tribunal's conclusion.

2.     The finding that the applicant was not a truthful witness was critical to the decision by the Tribunal to reject as false the applicant being asked about ringgit 100,000 and to the decision to reject as false all his other new claims and to reject his application before the AAT.

3.    The Federal Circuit Court committed jurisdictional error by not addressing the relevant Ground of appeal #6, but commenting on another matter that was not raised by the appellant in Ground 6, to wit, the issue of unreasonableness only. [58]

4.    Further, the Federal Circuit Court committed jurisdictional error by not finding the Tribunal committed jurisdictional error because of Particulars 1 and/or 2.

2.    LEAVE TO APPEAL

4    In considering the question of the grant of leave to appeal, I must take into account the statements of principle in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397, to the effect that this Court will generally grant leave to appeal where the applicant shows that there is sufficient doubt as to the correctness of the judgment subject to the proposed appeal to warrant review and, further, if that judgment is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. The correct approach to the evaluation of the prospects of success is to consider the proposed grounds of appeal at a reasonably impressionistic level, and enquire whether a ground is “sufficiently arguable” or has “reasonable prospects of success”; see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (per Mortimer J).

5    In the present case there is no dispute that substantial injustice would result if the decision below is attended by sufficient doubt to warrant it being reconsidered on appeal. The application is to be determined at the point of whether or not the proposed grounds of appeal are sufficiently arguable to warrant reconsideration.

3.    CONSIDERATION

6    In the final form of proposed ground 4, the applicant draws attention to the Tribunal’s credibility findings. The relevant reasoning is at [25] of the Tribunal’s decision:

25.    For all the reasons set out herein, the Tribunal was not satisfied the applicant was generally credible. That being said, I accept the applicant drove a bus load of persons from his home region to Kuala Lumpur (approximately 1 ½ hours) to attend the August 2015 Bersih rally. I accept that he did this as he was paid (and only for that reason). I accept that nothing happened to the applicant at the peaceful August 2015 Berish [sic] rally. I accept that on his return to his home region (Perak), he was questioned (for a brief period) in mid-September 2015. I do not accept he was mistreated when detained.

7    The applicant submits that the primary judge, at [50] of the FCCA decision, committed jurisdictional error by misunderstanding the decision of the Tribunal in holding that the reference to “the reasons set out therein” is to all of the Tribunal’s adverse credibility findings and reasons, when in fact the Tribunal was only referring to the applicant’s ethnicity, his religion and his political opinion.

8    In [50] the learned primary judge says (footnotes omitted):

50.    The Tribunal concluded that “for the reasons set out herein” the applicant was “not generally credible” and found that: the applicant drove people to the Bersih rally as claimed but he only did that because he was paid; nothing happened to him at the peaceful August 2015 rally; and he was questioned on his return to Perak but not that he was mistreated as claimed. Despite the applicant’s contentions, the reference to “the reasons set out herein” is clearly a reference to all of the Tribunal’s adverse credibility findings and reasons, which were based on its consideration of the applicant’s evidence and included:

a)    that the applicant had claimed for the first time at the hearing that he was paid to drive people to the Bersih rally but when the Tribunal put to him that it may consider he only did this to get paid, he changed his evidence to say he did not get paid;

b)    independent country information that indicated the 2015 rallies in which the applicant claimed he participated were generally peaceful; and

c)    the applicant’s written claims indicated that he had lived in Malaysia without problems between September 2015 and September 2016 but he raised for the first time at the hearing that he was detained in November 2015 and the Tribunal found the applicant would not have left such a significant claim out of his PVA if it was true.

9    The applicant contends that the primary judge misconstrued the reasons of the Tribunal, and thereby “misunderstood the evidence in the Tribunal and of the appeal question to be answered”. I respectfully disagree. In the paragraphs prior to [25] of the Tribunal’s reasons, it is plain that a number of adverse credit findings are made in relation to the applicant. These include findings that he changed his version of events during the course of the hearing and that there were inconsistencies between the evidence given at the hearing and the statements that he had made in his visa application form. After [25], the Tribunal sets out further matters that cause it to doubt the credibility of the applicant. At [28], [29] of its reasons the Tribunal says:

28.    When then asked why he had not mentioned these claims previously, he repeated this was all the fault of the alleged person who completed the PV form. As put to the applicant at hearing, the Tribunal may not be (and now is not) satisfied such allegedly important claims would have been left out of his PV form if true. I therefore reject as false the claims that the applicant was harmed in October/November 2015 for the reasons he claimed, and I reject as false that he was harmed at any other time prior to departing Malaysia. I remain satisfied the applicant was able to live without problem from mid-September 2015 until he departed Malaysia in September 2016.

29.    Based on the findings made, the Tribunal is not satisfied the applicant has a real chance of suffering serious harm in Malaysia, for any reason discussed under the above sub-heading.

10    These matters make apparent that for a number of clearly articulated reasons the Tribunal was not satisfied that the applicant gave a credible account of events and rejected his claims. In my view the learned primary judge was correct to understand the first phrase in the Tribunal’s reasons at [25] (“For all of the reasons set out herein”) as not confined to the reasons set out prior to [25]. Even were he to have been incorrect in that view, I am not satisfied that there is an arguable case that the Tribunal fell into jurisdictional error. First, as I have noted, in the paragraphs prior to [25], the Tribunal adequately set out the basis upon which it had reservations as to the applicant’s credibility. For example, at [23], the Tribunal notes that the applicant changed his version of events by initially saying that he was paid to drive a group of people to a Bersih rally, and then changing his story to claim that he was not paid (when it was put to him by the Tribunal that he may have only performed the driving service in order to be paid, and not for any political reason). Secondly, the relevant conclusions as to the rejection of the applicant’s claims are expressed at [31], [34] and [38] – [40]. Clear reasons were given by the Tribunal for those reasons. The reasoning of the Tribunal must be considered as a whole. When done, it is apparent that a number of credit findings, clearly explained, account for its conclusion. Accordingly, I am not satisfied that it is sufficiently arguable that the learned primary judge fell into error for leave to be granted in respect of this ground.

11    In proposed ground 6, the applicant contends that the primary judge committed jurisdictional error by not addressing the appeal point in ground 6 of the appeal before it. The gravamen of his complaint is that the primary judge appeared to address a different ground in [56] – [58] of its decision to that identified in ground 6 and so fell into error. The applicant submits that the issue raised in the appeal below was whether the Tribunal failed to give reasons and/or particularise reasons for the statement at [34] that “[a]fter considering all his claims, the Tribunal was ultimately satisfied the applicant was not a truthful witness. I therefore reject as false the applicant was asked about ringgit 100,000 and I reject as false all his other new claims”.

12    Whilst the learned primary judge did address at [56] - [58] whether it could be said that the Tribunal’s findings were unreasonable, the applicant submits that ground advanced below in relation to this aspect of the appeal was not one of unreasonableness, but one based on an alleged failure to give reasons. Ground 6 of the application to the FCC was that the Tribunal had failed to give adequate reasons and (as stated in particulars 1 and 2) first, that the applicant’s claims were not generally subject to criticism by the Tribunal and, secondly, that the finding that the applicant was not a truthful witness was critical to the decision by the Tribunal to reject as false the applicant being asked about 100,000 ringgit and to reject as false all his other new claims.

13    This proposed ground is not easily understood. There is an obvious tension between the first and second of the propositions as stated in the particulars. The first is obviously incorrect, because the Tribunal provided a number of reasons why it considered that the applicant’s claims would not be accepted, some of which I have summarised above. At the hearing of the application, counsel for the applicant sensibly accepted that this was so and abandoned reliance on that particular.

14    The second particular is inconsistent with the first, because in [34] the Tribunal expressly addressed a claim that the applicant had advanced for the first time at the hearing, which was that a person had given him 100,000 ringgit to “give to the people” in the context of a by-election in May 2016. After identifying in [32] and [33] inconsistencies in this version of events, the Tribunal reached the conclusion expressed in [34] that the late-advanced claims should be rejected. Having accepted, in relation to particular 1, that the Tribunal’s reasons do adequately identify reasons for reaching its conclusion as to credit, the applicant did not point to any basis upon which it might be said that there was a lack of reasons for the Tribunal’s conclusion at [34]. This makes the ground of appeal from the primary judge academic; it is plain that there was no failure on the part of the Tribunal to give reasons.

15    Nevertheless, the applicant maintains that the primary judge overlooked ground 6 of the application and accordingly fell into error. For the reasons stated in the previous paragraph I would not grant leave to appeal on this basis. Further, it is to be noted that the learned primary judge found:

57.    Further, when considered contextually, the applicant’s new claim was not solely in relation to the January/February 2017 phone call. The Tribunal identified, relatedly, that the applicant had also previously failed to raise that he was given 100,000 ringgit to “give to the people” and was a Councillor in Perak. The applicant claims that it was this money the policeman subsequently called him about in 2017. After summarising all of these new claims, not just the alleged phone call, the Tribunal noted it had asked the applicant “why this had not been stated previously”. Notably, the applicant’s answer in his PVA to his employment history indicates that he was unemployed between January 2015 and September 2016, which included the time during which he subsequently claimed to be a Councillor and have received the money (in May 2016).

58.    These and other concerns identified by the Tribunal provide a proper and rational context for its conclusion that the applicant’s new claims were not credible. Accordingly, any allegation of unreasonableness cannot be maintained.

16    Accordingly, the primary judge found that the findings of credit by the Tribunal were rationally based, having regard to the reasons given. For this reason also, I do not consider that this proposed ground of appeal has sufficient prospects of success to warrant the grant of leave to appeal.

4.    DISPOSITION

17    The application for leave to appeal must be dismissed with costs.

Associate:

Dated:    22 February 2019