FEDERAL COURT OF AUSTRALIA

FCA17 v Minister for Immigration and Border Protection [2019] FCA 947

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be refused.

2.    The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

GLEESON J:

1    The applicant seeks leave to appeal from a decision of a judge of the Federal Circuit Court of Australia (FCCA): FCA17 v Minister for Immigration & Anor [2018] FCCA 2755.

2    The FCCA judge dismissed the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), having found that the applicant was unable to demonstrate an arguable case of jurisdictional error by the Tribunal.

3    The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa.

4    By r 44.12(2), the FCCA decision is interlocutory in nature, and the applicant therefore requires leave to appeal by s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

5    The applicant is a citizen of Malaysia who arrived in Australia on 8 July 2016 on an Electronic Travel Authority visa. He lodged an application for a protection visa on 5 October 2016. The applicant claimed to fear harm because of his political opinion and that, if he returned to Malaysia, he would be threatened and harmed by the police or hooligans hired by people in power in the government.

6    The proposed appeal concerns the Tribunal’s findings about the applicant’s past political involvement. The Tribunal found that there was not a real chance or a real risk that the applicant will suffer serious or significant harm on return to Malaysia by reason of his political opinion or activity.

Tribunal’s reasons

7    The Tribunal’s consideration of the applicant’s claims about his political activities commenced at para 34 of its decision record.

8    The Tribunal referred to the applicant’s claim that he became interested in politics because Indians are discriminated against in Malaysia. The Tribunal also referred to the applicant’s claimed participation in two Hindraf rallies in 2007 and 2016. Hindraf is the Hindu Rights Action Force.

9    The Tribunal found that in August 2007, Hindraf staged a rally and several prominent members were arrested in August and November 2007.

10    The Tribunal found that the applicant displayed very little knowledge of Hindraf, but acknowledged that he had not claimed to have played a prominent role in the organisation; that the applicant had not been consistent in his evidence concerning the 2007 rally; and that the applicant’s written claim omitted to mention his attendance at a 2016 Hindraf rally.

11    The Tribunal also noted:

Furthermore, his written claims omit to mention that he attended a Hindraf rally in 2016. While he claims the police have taken down his details in respect of these circumstances and that he will be detained and assaulted on return to Malaysia for this reason he informed the Tribunal that he encountered no difficulties exiting the country through the normal channels.

12    The Tribunal next considered the applicant’s claim to have joined a Bersih (Coalition for Clean and Fair Elections) rally in 2016 to condemn corrupt practices of the Malaysian Prime Minister and that he was critical about the government’s practices. After considering information about the dates of Bersih rallies in 2015 and 2016, the Tribunal concluded that the applicant could not have attended a Bersih rally in 2016 because the only such rally was held after his arrival in Australia.

13    The Tribunal also considered other concerns that it had about the veracity of the applicant’s written claims and his oral evidence at the Tribunal hearing, particularly concerning events following the applicant’s claimed attendance at the 2016 rally, saying:

The Tribunal also finds it problematic that the applicant’s written claims state that after his attendance at the 2016 rally two police officers repeatedly threatened and intimidated him and he was threatened with having false cases filed against him. At the Tribunal hearing, when the applicant was asked what happened after his release in 2016 he stated that nothing further happened but that he and his family felt unsafe. When the Tribunal pointed out that he had failed to mention the serious claims he has made in respect of the two police officers and the threat of false cases being filed against him he responded that this was due to nervousness. The Tribunal did not form the impression the applicant was nervous during the hearing. He spoke in length and in detail about his employment history and the problems he encountered running his food stall and restaurant in Negeri Sembilan and about his reporting of the matter to the police in 2007.

14    At para 41 of its decision record, the Tribunal stated:

In view of the above, the Tribunal is unable to accept with any certainty the applicant’s claims in respect of his political involvement in Malaysia. The Tribunal is not persuaded that the applicant was ever politically active in Malaysia either with Hindraf or as a participant at Bersih rallies. The Tribunal does not accept the applicant has ever been arrested as a result of any political activity or monitored, threatened, harassed or intimidated with the threat of false court action over his political activity. It follows that the Tribunal does not accept the cause of any problems the applicant encountered running his businesses was in any way connected with his political activity. The applicant has claimed no political activity in Australia to cause the Tribunal to believe he would become politically active on return to Malaysia.

Proposed grounds of appeal

15    In his draft Notice of Appeal, under the heading “Grounds of appeal”, the applicant states as follows:

The Federal Circuit [C]ourt failed to find, in respect of the AAT’s reasoning that the AAT declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court Application filed at the Federal Circuit Court. Further Grounds with particulars of the grounds will be filed and served in my Amended Draft Notice of Appeal when Court orders it.

16    In written submissions filed on behalf of the applicant, the applicant made submissions in support of the first ground of review identified in the application to the FCCA (except for particular (c) to that ground). Relevantly, the first ground of review was:

1.    The Tribunal failed to ask itself the what if I am wrong question as findings at 41 appear to have been made without confidence.

Particulars

a.    The Tribunal at 41 states “In view of the above the Tribunal is unable to accept with any certainty the applicant’s claims in respect of his political involvement in Malaysia[”].

b.    At [40] the Tribunal found an essential integer of the applicant’s claim where two police officers threatened and intimidated him to be “problematic”, this claim was not explicitly refused by the Tribunal, which indicates that the Tribunal was unable to make a finding with certainty.

…

d.    Where the decision maker is uncertain that certain events may have occurred in the past, there is an obligation on the decision maker to assess the claims as though the particular event that it is uncertain to have occurred, actually occurred.

e.    The Tribunal failed to satisfy itself by asking the what if I am wrong question and therefore committed legal error for this reason.

FCCA judgment

17    The FCCA judge addressed the applicant’s first ground of review at [36]-[42] of his Honour’s reasons relevantly as follows:

[36]    It is well established that for a decision-maker to ask itself “what if I am wrong?” occurs in circumstances where there is uncertainty about an event significant to the ultimate question as to whether the applicant has a well-founded fear of being persecuted for a Convention reason [see Minister for Immigration v Rajalingam [1999] FCA 719; (1993) 93 FCR 220 at [60]-[64]].

…

[40]    The Tribunal next considered the applicant’s past political involvement. In relation to this issue, the applicant claims that the Tribunal’s finding at [40], that his written claims relating to his attendance at a Bersih rally in 2016 and his subsequent assault by two police officers was “problematic”, indicated that the Tribunal was unable to make a finding with certainty.

[41]    As summarised above, at [41] of its reasons, the Tribunal considered all of the evidence given by the applicant in relation to his claimed political involvement in Malaysia but did not accept that he was ever politically active or arrested and threatened for this reason as a consequence.

[42]    The Tribunal’s findings were open to it for the reasons it gave and do not disclose any real doubt about the issues in dispute. The Tribunal was not, therefore, required to pose the “what if I am wrong question” and no jurisdictional error arises on the basis alleged by the applicant.

18    The FCCA judge footnoted the reference to the “what if I am wrong question” in [42] of his Honour’s reasons with the following observation:

The “what if I am wrong” exercise is only engaged in circumstances where the Tribunal is unable to reach a sufficient state of satisfaction on the evidence to make any factual findings because of deficiencies in the presentation of the applicant’s case: SZSMQ v Minister for Immigration & Anor [2013] FCCA 1768 at [57]-[60].

Application for leave to appeal

19    The relevant considerations governing leave to appeal from interlocutory decisions are identified in Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398-300, namely:

(1)    whether the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered on appeal; and

(2)    whether substantial injustice would result if leave to appeal were refused, supposing the primary decision to be wrong.

20    While it may be accepted that these principles are not to be applied “in a rigid way”: Ferdinands v The State of South Australia [2017] FCA 32 at [13], the onus of persuading the Court that leave should be granted lies on the party seeking leave: AJE17 v Minister for Immigration and Border Protection [2018] FCA 111 at [8].

Applicant’s submissions

21    The applicant referred to the observation made by Sackville J (North J agreeing) in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 (Rajalingam) at [45]:

[T]here may be cases where the available evidence does not allow findings as to past events to be made with confidence. For example, the decision-maker may consider that the best guide as to the likely fate of “returning illegal departees” is the actual fate of a group of similar departees who have already been returned to their country of nationality. The available information as to the fate of the latter group may be limited, and the decision-maker might not be able to conclude that any had received punishment by reason of their actual or imputed political opinions. But if the decision-maker considers that there is uncertainty about the fate of the first group, the chance that they had indeed been severely punished as political dissenters would support the claim of the current group of applicants to have a well-founded fear of persecution.

22    This passage formed part of a detailed analysis of the principles concerning fact finding in relation to whether an applicant has a well-founded fear of persecution.

23    The applicant also referred to the following passage from Kirby J’s reasons in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (Wu Shan Liang) at 293 (citations omitted):

[T]he decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question: “What if I am wrong”? Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems “likely” or “entitled to greater weight”, the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a “real chance” of persecution.

24    Sackville J’s analysis in Rajalingam considered this passage at [46] and following.

25    The applicant also noted the consideration of the reasons of Kirby J in Wu Shan Liang at 293 in Thanh Phat Ma v Billings J (Constituting the Refugee Review Tribunal) (1996) 71 FCR 431 at 436 (referred to by Sackville J in Rajalingam at [48]), as follows:

All I think Kirby J was concerned to explain was that, unless the decision maker can dismiss as unfounded factual assertions made by the applicant, the decision maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect.

26    The applicant also referred to the following statement of the plurality in Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 576:

It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. lf, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a convention reason, it must take into account the chance that the applicant was so punished when determining that there is a well-founded fear of future persecution.

In the present case, however, the Tribunal appears to have had no real doubts that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.

27    This passage was considered by Sackville J in Rajalingam at [55] and [56].

28    In Rajalingam, at [63], Sackville J noted:

The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute “an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.

29    At [67], Sackville J concluded:

In general, however, the question of whether the [Tribunal] should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the [Tribunal’s] own reasons. If a fair reading of the reasons as a whole shows that the [Tribunal] itself had “no real doubt” (to use the language in Guo) claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the [Tribunal’s] own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the [Tribunal’s] reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang, at 271-272, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FC), at 287. Only if a fair reading of the reasons allows the conclusion that the [Tribunal] had a real doubt that its findings on material questions of fact were correct, might error be revealed by the [Tribunal’s] failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the [Tribunal] had not undertaken the required speculation about the chances of future persecution.

30    The applicant submitted that the Tribunal’s reasons reveal that it was unable to decide with any certainty his claims in respect of his political involvement in Malaysia including, in particular that:

(1)    he was detained and then let go after a Hindraf demonstration;

(2)    he was assaulted in 2007 at a Hindraf rally;

(3)    in early 2016 he joined protests to condemn corrupt practices of the Prime Minister and he was critical about the government and its current corrupt practices, and that two police repeatedly threatened him as he was critical of the ruling party because of its corrupt practices including the recent funds transferred to the personal bank account of the Prime Minister;

(4)    the ruling party threatened to file false cases against him with an intention to silence him from expressing his views against the government; and

(5)    the police would not protect him and will act according to the ruling political parties.

31    The applicant submitted that:

[T]he Tribunal did not, nor could not, take the view that its findings at [41] were made with confidence or that the probability of error was insignificant, yet the findings appeared to foreclose on the possibility that there may be a real chance the Applicant has a well founded fear of persecution.

32    Further, the applicant submitted that the first sentence of [40] of its decision record was something less than an explicit rejection of the applicant’s claim concerning the conduct of two police officers after his attendance at a 2016 rally.

Consideration

33    At [42] of his Honour’s reasons, the FCCA judge concluded that, on a fair reading of the Tribunal’s reasons as a whole, the Tribunal did not have any real doubt about the issues in dispute and therefore was not required to ask the “what if I am wrong?” question. In my view, the FCCA judge’s conclusions on this point were plainly open to him, based on a fair reading of the Tribunal’s decision record.

34    In particular, [40] of the Tribunal’s decision record does not disclose uncertainty as to events in 2016. Rather, it records the Tribunal’s consideration of an apparent conflict between the applicant’s written and oral claims. That consideration follows the Tribunal’s factual finding that the applicant did not attend a Bersih rally in 2016 as he had claimed in writing and its observation that the applicant had made an oral claim to have attended a Hindraf rally in 2016, not recorded in his written claims. Ultimately, the Tribunal does not make any finding about events in 2016 at [40] of its decision record.

35    At [41] of the Tribunal’s reasons, the Tribunal makes several observations and findings. The first sentence expresses doubt about the applicant’s claims in respect of his political involvement in Malaysia generally, saying that it is unable to accept those claims “with any certainty”. The next sentence also expresses a degree of doubt in that the Tribunal says that it is “not persuaded” that the applicant was ever politically active in Malaysia.

36    Next, the Tribunal makes the following two confident findings:

(1)    The Tribunal does not accept that the applicant has ever been arrested as a result of any political activity or monitored, threatened, harassed or intimidated with the threat of false court action over his political activity.

(2)    It follows that the Tribunal does not accept the cause of any problems the applicant encountered running his businesses was in any way connected with his political activity.

37    The doubt expressed by the Tribunal was that it did not have sufficient confidence about the applicant’s claims to be satisfied about any single aspect of them. In the context of its more specific findings, to the effect that the applicant had not suffered any adverse consequence as a result of his political activity, there was no occasion for the Tribunal to return to the broader questions of the nature and extent of the applicant’s political activity to ask the question “what if I am wrong?”. The answer to that question could only have been that the applicant should have been accepted as to some aspect of his claimed political involvement but, on the basis of the Tribunal’s confident findings, that did not lead to any adverse consequence. In the light of those latter findings, there was no deficiency in the Tribunal’s required consideration of the chances of future persecution.

38    It follows that the judgment of the FCCA judge is not attended by sufficient or any doubt, such as to warrant it being reconsidered on appeal.

39    Substantial injustice would result if leave to appeal were refused, supposing the primary decision to be wrong, in that the applicant would be deprived of an opportunity to obtain a protection visa. However, in the absence of any doubt about the legality of the reasons of the FCCA judge, I am not otherwise persuaded that there is a proper basis for the grant of leave to appeal.

Conclusion

40    The application for leave to appeal will be refused. Costs should follow the event.

Associate:

Dated:    20 June 2019