FEDERAL COURT OF AUSTRALIA

BZW16 v Minister for Immigration and Border Protection [2019] FCA 395

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The appellant appeals from a judgment of the Federal Circuit Court of Australia published as BZW16 v Minister for Home Affairs [2018] FCCA 2379. By that judgment, the primary Judge dismissed the appellant’s application for judicial review of a decision of the second respondent (“the Tribunal”) to affirm a decision of a delegate of the first respondent (“the Minister”), to refuse to grant the appellant a Protection (Class XA) visa (“protection visa”).

2    The appellant is a citizen of Malaysia who arrived in Australia on 24 July 2015 as the holder of a tourist visa. The appellant then applied for the protection visa. In his application for the protection visa, the appellant claimed that he was being pursued by the police and the government of Malaysia because he was a member of the “Bersih Rally Group”.

3    Relevantly to the issues I need to decide, the appellant claimed before the Tribunal that he had been engaged in political activities and that he feared being harmed if he was returned to Malaysia because of the interest of the Malaysian authorities in him as a political activist.

4    When the appellant’s protection visa application was rejected by a delegate of the Minister, the appellant applied to the Tribunal for review of the delegate’s decision. On 27 June 2016, the Tribunal affirmed the delegate’s decision.

5    It is convenient, at the outset, to say something of the Tribunal’s task. As the Minister’s submissions correctly outline, the Tribunal’s task was to determine whether the appellant satisfied the criteria for the grant of a protection visa. Relevantly, the Tribunal’s task, by reference to s 36(2)(a) of the Migration Act 1958 (Cth) (“Act”), was to consider whether there was a real chance that, if the appellant were to return to Malaysia, he would be persecuted in a manner involving serious harm for certain prescribed reasons, including the holding by him of a political opinion.

6    By reference to s 36(2)(aa) of the Act, the Tribunal’s task involved determining whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia, there was a real risk that he would suffer significant harm.

7    The Tribunal determined that neither the criteria in s 36(2)(a) or that in s 36(2)(aa) of the Act were satisfied. For those reasons, the Tribunal affirmed the decision not to grant the appellant the protection visa.

8    Having failed before the Tribunal, the appellant applied for judicial review to the Federal Circuit Court. The only ground advanced in support of the application was that the Tribunal had taken into account irrelevant considerations. The primary judge rejected the appellant’s contention that irrelevant considerations had been taken into account. The appellant then appealed to this Court on the basis that the primary judge had erred in not finding that the Tribunal had taken into account an irrelevant consideration.

9    The irrelevant consideration relied upon before the primary judge and that relied upon in the appellant’s Notice of Appeal are essentially the same. The Notice of Appeal specifies the irrelevant consideration as follows:

Impermissibly treating the question whether the appellant was willing and able to obtain identity documents in Malaysia as relevant to the question whether the appellant feared being harmed in Malaysia.

10    The appellant appeared before me today. He was unrepresented but assisted by an interpreter. In the submissions he made, he raised essentially three matters. One of those matters seems to me to be, at least arguably, within the scope of the appellant’s Notice of Appeal. The other two matters are not. I will address first, those two matters that I consider to be outside of what has been raised by the Notice of Appeal. Insofar as the appellant sought leave to expand his grounds of appeal, I consider that that application should be rejected because the appellant has not demonstrated any prospect of success on those matters.

11    In relation to the first of the matters raised, in essence, the appellant contended (by reference to [47]-[48] of the Tribunal’s reasons), that the Tribunal had wrongly expressed doubt and was sceptical as to whether the appellant would participate in political activities if returned to Malaysia. That contention, even if it was correct, seems to me would inevitably fail to establish jurisdictional error by the Tribunal, including because, as the Tribunal said at [56] of its reasons:

The Tribunal considers that the country information demonstrates that the applicant will be able to express his political opinion and be involved in activism freely on return to Malaysia and in the reasonable foreseeable future.

12    The second matter sought to be agitated by the appellant was a submission that he had been “cheated” by his migration agent. The appellant suggested that his migration agent had limited the extent to which the political activities that the appellant wanted to take the Tribunal to were agitated before the Tribunal. The suggestion being that the case that the appellant wanted to put wasn’t able to be put because of some inappropriate behaviour from the migration agent.

13    That contention has no prospect of success. There is no evidence before me to support it, and the appellant has not sought to put any evidence before me to substantiate the claim made against the migration agent. In so far as there is material before me it demonstrates that, the case put by the appellant, including as to his political activities, was far more expanded when put in written submissions which appear to have been prepared with the assistance of the migration agent than was the case put originally by the appellant himself when making his application for the protection visa.

14    Returning then to the appellant’s single ground of appeal, it seems to me that the critical finding made by the Tribunal is at [53] of the Tribunal’s reasons, where the Tribunal stated:

The Tribunal does not accept that the applicant is a person of interest to the authorities because of his attendance at the 2011 Bersih 2.0 rally or student activism with SMM or SAMM, described collectively as pro-Mahasiswa and ‘pro-Aspirasi’. The authorities have shown no interest in him, and the applicant has engaged with the authorities without any detrimental treatment.

15    The reference by the Tribunal to the appellant having engaged with the authorities without any detrimental treatment is, it appears to me, to be a reference to the Tribunal’s findings at [45] of its reasons. The Tribunal there said that it had questioned the appellant’s claims that the Malaysian authorities were interested in him given that those authorities were willing to renew his identity card in 2014 and issue him with a passport in May 2015. The Tribunal then continued as follows:

The Tribunal noted that the applicant was willing to approach the authorities for identity documents of this nature and the authorities issued them without incident was strong support for the contention that the applicant did not fear being harmed in Malaysia and that the applicant was not a person of interest to the authorities. The applicant stated that the authorities had issued a passport to the man that killed the Mongolian model. The Tribunal stated that this was not relevant to the applicant’s circumstances where he personally approached the authorities to have the ID card and passport issues, which occurred without issue. The Tribunal noted that the authorities issued the documents without any issue being raised.

16    The appellant’s ground that irrelevant considerations were taken into account is based on the content of [45] of the Tribunal’s reasons. The primary judge determined that the taking of those considerations and, in particular, the obtaining by the appellant of identity documents were matters entirely appropriate for the Tribunal to take into account in considering whether the appellant held a well-founded fear of being persecuted by the Malaysian authorities.

17    As the primary judge correctly recognised, a consideration is only irrelevant in law if it is prohibited because having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. In that respect, the primary judge cited Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at [9] (Basten JA).

18    Whether the impugned matters are to be characterised as considerations or merely evidence going to the broader consideration of risk of harm, in my view the appellant’s interaction with the Malaysian authorities for the purpose of obtaining identity documents were not irrelevant and the primary judge did not err in coming to that conclusion.

19    There is one further matter I should deal with, and that is the third of the matters raised by the appellant in submissions made today. The appellant contended that the police and the Malaysian National Registration Department (“Department”) were corrupt and that it was possible to get documents by engaging in corrupt practices. As I understand it, that contention was made to undermine the Tribunal’s view that the appellant’s approach to the Malaysian authorities for identity documents demonstrated he held no fear of those authorities.

20    When asked whether he had raised that matter before the Tribunal, he said he had by way of giving an example. He identified the example he gave to the Tribunal as that referred to in [45] of the Tribunal’s reasons, where the Tribunal said that the applicant had stated that the authorities had issued a passport “to the man who killed the Mongolian model”. The Tribunal distinguished that example from the appellant’s circumstances in the manner set out in the last two sentences of [45] of its reasons.

21    I see no error in the manner in which that distinction was drawn by the Tribunal. Furthermore, it does not appear to have been suggested to the Tribunal, nor has it been suggested by the appellant before me, that he obtained his identity documents as a consequence of the police or the Department engaging in corrupt practices. Accordingly this further contention does not advance the appellant’s position.

22    For those reasons, the appeal should be dismissed.

Associate:

Dated:    20 March 2019