FEDERAL COURT OF AUSTRALIA

DDF16 v Minister for Immigration and Border Protection [2019] FCA 1256

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

1    This appeal is from the judgment and orders of a judge of the Federal Circuit Court of Australia given and made on 20 November 2017. The appellant’s notice of appeal was filed on 8 December 2017. The lengthy delay in the appeal coming on for hearing may have been related to the issuing of a s 438 certificate to the Tribunal and decisions of the High Court that were then pending.

2    The appellant is a citizen of Malaysia who arrived in Australia on 19 June 2015. He applied for a protection visa on 15 September 2015, shortly before the expiry of the visa on which he had entered Australia three months earlier. A delegate of the respondent Minister refused the application for a protection visa on 22 January 2016. The appellant applied to the Administrative Appeals Tribunal for review by application dated 16 February 2016. The Tribunal held a hearing on 16 September 2016 and on the same day made its decision to affirm the delegate’s decision.

3    As accepted by the primary judge, in his application for a protection visa the appellant claimed to fear harm from members of the Barisan Nasional (BN) party due to his involvement with the Malaysian Chinese Association (MCA) in 2010. He claimed that the BN tried to get him to join them due to his “sphere of influence”. When he refused, the BN “blocked” his business and flow of customers. The appellant tried to borrow money from the bank but was rejected. He borrowed money from a loan shark and paid interest for three years but could no longer afford to pay and had to sell his house to pay his debts. He changed his company name and moved office but was pursued by the “loan shark’s cronies” who vandalised his office and tried to attack him. He reported the matter to the police who took his statement but did nothing.

4    Before the Tribunal the appellant claimed to vote for the Democratic Action Party (DAP) and that the BN tried to convert him to Islam. The Tribunal found that: the appellant’s statement to it that he had never joined any associations or clubs or political parties was inconsistent with what he said in his protection visa application (at [14]); the appellant’s statement to it that he voted for the DAP, a different party from the MCA, was inconsistent with what he had claimed before (at [15]); and the appellant’s statement to it that the BN approached him because he might bring his employees with him if they could persuade him to join was different from the claim he made in his protection visa application, which was that the BN was motivated by the impression that he was an “influential person” who had “many follower[s] and friends” (at [18]). The Tribunal found that the appellant was also vague about the methods that the BN brought to bear, or tried to bring to bear, on him (at [19]).

5    The Tribunal recorded that the appellant indicated, in response to a request to provide an approximate cross-section of the ethnic composition of his workforce, that not many of his staff were Malaysian citizens (at [20]). The Tribunal put to the appellant that on this evidence he had very few workers to bring with him to the BN, and recorded the appellant’s response, initially, that he had other contacts the BN would have regarded as advantageous to them and, ultimately upon the Tribunal putting to him that he claimed not to have political links or belong to clubs or associations, that some of his workers would have friends who they might bring along with them to the BN (at [21]). The Tribunal accepted that the BN has had flagging support and was looking for new supporters, but noted the appellant’s inability to describe any wider campaign to recruit him and recorded its difficulty with the appellant’s evidence in this respect (at [22]).

6    The Tribunal found the appellant’s evidence regarding the bank’s refusal of his loan had an “inconsistent and somewhat far-fetched” quality (at [23]). The appellant claimed that the bank refused his loan because the BN pressured the bank and he said his friend at the bank told him this. The Tribunal referred to country information and noted that the appellant acknowledged that the economy in his home state had been in decline around the time he applied for a loan. The Tribunal also found that the appellant gave inconsistent evidence about his arrangement with a loan shark, including about whether they had a contract (at [24]). He claimed that he sold his home to finance his travel to Australia but the Tribunal found that he gave somewhat inconsistent evidence about when he sold his home (at [25]).

7    Having considered the appellant’s application and evidence in detail, the Tribunal said as follows, at [28]-[29]:

Overall, I find that [the appellant] has been a thoroughly unreliable and unsatisfactory witness in the present matter. On the inconsistent evidence before me, I do not believe and am therefore not satisfied that he has faced or faces relevant harm, let alone serious harm amounting to persecution, from any party, be it the BN or the loan shark or anyone else, in Malaysia.

[The appellant]’s evidence gives me the very confident impression that he came here purely for economic reasons at a time when economic conditions in Malaysia were hurting the industry in which he works or worked. In any event, I am not satisfied on the evidence before me that he faces a real chance of persecution in Malaysia in the reasonably foreseeable future, let alone for any of the reasons in s.5J(1)(a) of the Act. His claimed fear of persecution is not well founded. He is not a refugee.

8    There were three grounds in the application to the Federal Circuit Court for judicial review of the decision of the Tribunal.

9    The primary judge identified them and considered them briefly in turn.

10    The first was that the “Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958”. The appellant asserted that the Tribunal erroneously and narrowly construed the existence of risk to life and fear of significant harm to him upon his return to Malaysia. The primary judge said at [2] that the problem with this ground was that the Tribunal in fact rejected the appellant’s claims. Accordingly, there was nothing for the Tribunal to assess in respect of the question of the existence of a real risk of significant harm and there was no error as asserted.

11    The second ground was that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth). In summary, the primary judge said at [3], that provision, when it applies, requires the Tribunal to give the applicant particulars of information it considers would be the reason, or part of the reason, for the decision. Apart from the information given to the Tribunal by the appellant, the only information upon which the Tribunal could be said to have considered as being the reason, or part of the reason for the Tribunal’s decision, was what might be described as country information. However, that information was not specifically about the appellant and for that reason, the primary judge said, fell within the exception to s 424A(1) found in s 424A(3)(a) of the Migration Act. For those reasons, the primary judge concluded that there was no obligation upon the Tribunal under s 424A(1) and no error in the Tribunal failing to comply with that provision.

12    The third ground was that the Tribunal had no jurisdiction to make the decision because its “reasonable satisfaction” was not arrived at in accordance with the provisions of the Migration Act. This, the primary judge said at [6], was a generic submission that was quite often seen in applications before the Federal Circuit Court. It was so broad as to have no meaning without any further context. The appellant did not provide that context in his grounds of application and he filed no written submissions and made no oral submissions in support of his claim. For those reasons the ground was rejected by the primary judge.

13    The primary judge then dealt shortly, at [7]-[11], with a certificate purportedly issued under s 438 of the Migration Act, holding that there was no jurisdictional error arising from the non-disclosure to the appellant of the certificate and documents to which it related.

14    The primary judge dismissed the application for review of the decision of the Tribunal affirming the decision of a delegate refusing the appellant a protection visa.

15    The grounds of appeal in the notice of appeal are uninformative and are in the following terms:

1.    The AAT did not consider my genuine claim and the Hon. Just dismissed my case despite the Tribunal member made judicial mistake.

2.    The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

16    The appellant filed no written submissions in support of his appeal. In oral submissions, the appellant said his case as presented to the Tribunal was really what happened. At first, the appellant did not wish to add to his ground that the Tribunal did not consider his claim. In reply he did put that in Malaysia it was impossible for him to find the sort of proof the Tribunal wanted. He said that his family had had to move three times because of the pressure that a loan shark or loan sharks had put on him and his family. His children had had to change schools as a consequence.

17    The respondent Minister’s written submissions in effect adopted the reasons of the primary judge.

18    Turning to the notice of appeal, the Minister submitted that the first ground claimed the Tribunal did not consider the appellant’s claim and that the primary judge erred in dismissing the application. However the Tribunal did consider the appellant’s claims, the Minister submitted, so this ground must fail. The Tribunal did not accept the appellant’s claims were true.

19    The second ground claimed the primary judge erred by not considering the legal and factual errors by the Tribunal, but the primary judge found no such errors and none were identified in this ground, the Minister submitted.

20    In the absence of substantive submissions on the part of the appellant, the Minister submitted the grounds of appeal must fail.

21    The Minister’s submissions also noted that since the judgment of the primary judge the High Court had held that the issuing of an invalid s 438 certificate to the Tribunal was a breach of a limitation on the statutory task of the Tribunal, but would not establish a jurisdictional error unless the breach was material, referring to Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599 at [44]. That required that the appellant satisfy the Court that there was a realistic possibility of a different outcome if the Tribunal had taken into account the material covered by the certificate, the Minister submitted, referring to SZMTA at [45]-[48]. The Minister submitted that material, which was reproduced in the appeal book, did not appear to have any relevance to the appellant’s claims for the reasons given by the primary judge at [9]-[10]. The appellant had not established that there was a realistic possibility that the Tribunal could have come to a different decision if it had taken it into account.

22    In my opinion, there is no substance in either of the grounds of appeal and, as the primary judge found, no jurisdictional error on the part of the Tribunal in relation to the s 438 certificate. No criticism of substance has been made of the reasons of the primary judge which I have set out above. The appellant’s oral submissions to this Court were each merits based contentions and did not suggest jurisdictional error on the part of the Tribunal or error on the part of the primary judge. No such error has been shown.

23    The appeal should be dismissed, with costs.

Associate:

Dated:    9 August 2019