Federal Court of Australia

BUX17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1510

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs as agreed or taxed under r 40.12 of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

RAPER J:

Introduction

1    This is an appeal from a decision of the (then) Federal Circuit Court of Australia (FCCA) made on 21 June 2021: BUX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1387 (J). In that decision, the primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal made on 29 March 2017. In that decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) made on 1 March 2016 refusing to grant the appellant a Protection (subclass 866) visa pursuant to s 65 of the Migration Act 1958 (Cth).

2    This Court’s jurisdiction is very confined. At hearing, the appellant submitted that he feared being returned to Malaysia and asked that this Court grant him a visa. This Court’s powers are very limited. In an appeal of this nature, this Court must determine whether the FCCA was correct to find that the decision of the Tribunal was not affected by jurisdictional error: see, eg, Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [117] per Nettle and Gordon JJ. That is the extent of this Court’s jurisdiction. It is not for this Court, for itself, to determine the merits of the appellant’s claim nor can this Court grant the appellant a visa.

3    The appeal concerned whether the primary judge’s conclusions regarding country information were irrational and not reasonably formed on the basis of evidence and whether the primary judge failed to have regard to material before him. The appellant also seeks to adduce new evidence on appeal.

4    For the following reasons, the appeal must be dismissed.

Background

5    The appellant is a citizen of Malaysia who arrived in Australia on 30 May 2015.

6    The appellant claimed to fear harm in Malaysia consisting of deprivation and discrimination by reason of his Chinese ethnicity and low economic status. The appellant claimed that he was a Buddhist, but was considering converting to Christianity, and that there was no religious freedom in Malaysia.

7    In addition, the appellant (before the Tribunal) claimed to fear harm from his father, who resided in Malaysia. The appellant claimed that his father was violent towards him, one of his brothers and his mother, and that he was psychologically abusive. After the appellant’s mother left his father in 2008, the appellant claimed that his father stalked him and his mother and sent men on motorbikes to intimidate them. The appellant claimed that he and his family moved a number of times, but his father always found them within weeks and the men would be sent to intimidate them again. The appellant claimed to fear that his father would find him, and would force him to work for him.

The Tribunal’s decision

8    The Tribunal accepted only certain of the appellant’s claims. It accepted that the appellant’s father had been physically and emotionally abusive to the appellant, his mother and his siblings while they lived together as a family: at T[63]. However, it found that any physical violence ceased when the appellant, his mother and siblings moved away from his father in 2008: at T[63]. The Tribunal also accepted that the appellant and his family had to move regularly, but found that this was for reasons other than those claimed: at T[65]. The appellant had claimed that his father belonged to an underworld gang. The Tribunal did not discount the possibility that the appellant’s father may have some involvement in illegal activities in his home town. However, the Tribunal also did not accept that the appellant’s father had the power and influence to be able to find him anywhere in Malaysia: at T[70].

9    The Tribunal considered the appellant’s evidence, that of his mother and the accounts he had given a psychotherapist in Australia. However, the Tribunal did not accept the appellant’s claim of his father’s ongoing harassment and accordingly did not accept that he will suffer future harm from his father if he were returned to Malaysia: at T[78].

10    Additionally, the Tribunal did not accept, on the basis of country information, that the appellant faced harm on the basis of his Chinese ethnicity combined with his low economic status: at T[82]–[86]. Nor did it accept, also on the basis of country information, that the appellant would face harm in Malaysia on account of his religion: at T[89].

11    Ultimately, the Tribunal concluded that the appellant did not satisfy the refugee criterion (at T[90]), nor did he satisfy the complementary protection criterion (at T[91]).

Grounds of appeal

12    By way of amended notice of appeal dated 31 October 2021, the appellant advances the following three grounds of appeal:

1.    The FCC’s conclusions concerning country information were irrational and not reasonably formed on the basis of evidence. In the reasons for the judgement, it is written that “There was no Attachment A and in the absence of meaningful particulars this ground cannot succeed.,, [sic] The Appellant can only explain why Appendix A is empty by the fact of his lack of any legal training at all and inexperience in checking the sealed documents. This was intended as a front page for the documents that followed. The evidence can be found in Attachments C, D, E, F, G and H in the sealed document for that hearing, given in annexure KWH3 to Affidavit 2 of [the appellant] sworn on 18 July 2021.

2.    There is additional evidence supplied in annexures KWH1 and KWH2 to Affidavit 1 of [the appellant] sworn on 18 July 2021.

3.    There is supplementary additional evidence supplied in annexures KWH4, KWH5, KWH6, KWH7, KWH8 and KWH9 to Affadavit 3 [sic] sworn on 31 October 2021.

13    One procedural matter arose in the appeal. Prior to the hearing of the appeal, the appellant requested that a Malaysian Mandarin interpreter, rather than a Mandarin interpreter, be provided. After the matter was initially listed for hearing before this Court, the appeal was rescheduled to 27 November 2023 to accommodate the availability of a Malaysian Mandarin interpreter. Late on Friday 24 November 2023, the Court was informed that the Malaysian Mandarin interpreter would no longer be available on 27 November 2023. Before the hearing of the appeal, the Court made inquiries as to if or when another Malaysian Mandarin interpreter might be available. It was not able to get any confirmation of the same before the hearing of the appeal. At the commencement of the hearing, the appellant was informed of the same. The interpreter present at the hearing confirmed that she was a Mandarin interpreter. The Court gave the appellant a choice to proceed with the Mandarin interpreter or alternatively he could ask that the matter be adjourned until a Malaysian Mandarin interpreter could be secured. The appellant elected to proceed. Upon choosing this course, the appellant and the interpreter were informed by the Court that either of them could, at any time during the hearing, let the Court know if there were any interpreting difficulties. Neither the appellant nor the interpreter raised any concerns regarding the same during the hearing.

Consideration

Ground one

14    By ground one, the appellant contends that the primary judge’s conclusions concerning country information were irrational, and not reasonably formed. The sole ground of review before the primary judge, as a matter of substance, was analogous to this ground of appeal. However, the appeal ground referred specifically to supportive evidence.

15    In order to support this ground, the appellant sought to rely on his affidavit, sworn on 18 July 2021 described as “Affidavit 2”, which purportedly annexed the Court Book before the primary judge. Given the entirety of the Court Book has been reproduced in the Appeal Book, there is no need for the appellant to rely on this affidavit, and to the extent that leave was implicitly sought to rely on this fresh evidence, it is refused.

16    With respect to the corresponding ground of review, the primary judge made the following findings:

13    There was no Attachment A and in the absence of meaningful particulars this ground cannot succeed. Further, the findings of fact from country information was a matter for the Tribunal to determine. In substance, this Ground invites impermissible merits review. Which country information the Tribunal preferred was within its fact finding jurisdiction. Further, the country information identified by the Tribunal is evidence and provided a rational and probative basis for the adverse findings concerning the applicant’s claim to fear harm because of his ethnicity and/or his religion. The adverse findings on the country information were not of a kind to which no reasonable decision maker could come to. Further, the country information accepted by the Tribunal provides an evident and intelligible justification for the adverse findings. The adverse findings based on the preferred country information by the Tribunal cannot be said to be legally unreasonable.

14    No jurisdictional error as alleged in Ground 1 has been made out.

17    As is apparent from the above, the primary judge was unable to decipher what the appellant relied upon as comprising “Attachment A”.

18    However, the primary judge nonetheless did go on to consider why it was open for the Tribunal to find as it did on the basis of country information. The primary judge was correct to emphasise that it was the Tribunal’s role to undertake a merits review of the appellant’s claim. This role is different from the primary judge’s role in undertaking judicial review. The primary judge’s consideration of whether it was “open” for the Tribunal to do what it did was directed to addressing the appellant’s claim of irrationality and legal unreasonableness. A high bar must be overcome when asserting a decision is irrational or legally unreasonable. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, or if the decision was simply not open on the evidence or there is no logical connection between the decision and the inferences or conclusions drawn: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135] per Crennan and Bell JJ. Where reasonable minds might differ about the outcome of, or justification for, the exercise of power, or where the outcome falls within the range of legally or factually justifiable outcomes, the exercise of power is not legally unreasonable simply because the Court disagrees, even emphatically, with the outcome or justification: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [92] per Wigney J.

19    As formulated, ground one refers to evidence relied upon to provide foundation for the claim of illogicality and legal unreasonableness. At hearing, the appellant confirmed that “the evidence can be found in Attachments C, D, E, F, G and H” was a reference to attachments to the submission made on his behalf by Ms Meyer before the Tribunal, which contained country information regarding Malaysia, specifically information about criminal gangs and the underground economy, corruption, censorship, discrimination against impoverished Chinese Malaysians, domestic violence, and access to personal data by third parties. The appellant was asked at hearing whether there were any particular parts of those attachments which he wanted to draw the Court’s attention to and he did not identify any. From my review of those attachments, there is nothing within them from which it could be argued that the primary judge’s review of the Tribunal’s findings, or the Tribunal’s conclusions regarding country information, which were not open through the prism of illogicality or legal unreasonableness.

20    Lastly, the appellant filed short written submissions before the hearing with respect to ground one, which are extracted in their entirety:

With regard to ground one and the country information. My father is a gangster and part of a Chinese gang. The violent and corrupt behaviour of Chinese gangs is frequently mentioned in Malaysian press. I know that I couldn’t ask for and receive the support from the Malaysian Police because of the corruption in the Police Force.

The memories of the violence of my childhood, particularly from my father, haunt me, and even now as a 25 year old, I really do genuinely fear for my safety if I return to Malaysia.

(Emphasis in original.)

21    As observed previously, it is not for this Court to determine for itself on the merits whether the appellant has a fear of harm if returned to Malaysia. The appellant did not allege with any specificity before the primary judge jurisdictional error with respect to the Tribunal’s consideration of country information concerning the appellant’s claim to fear harm from his father.

22    In any event, a review of the Tribunal’s reasons revealed that it did consider country information relevant to the appellant’s fear of harm arising from his father. For example, the Tribunal considered corruption (including involving politicians and the police) and the existence of gangs. However, the Tribunal was ultimately not satisfied that the appellant was at risk of harm from his father or his associates. I can discern no error in the Tribunal’s reasons. It is a question of whether such findings were open to the Tribunal, which in this case, they were.

Grounds two and three: Application to rely on fresh evidence

23    Grounds two and three can only be understood as being an application to rely on fresh evidence in this proceeding; they do not otherwise articulate any appellable error on the part of the primary judge. The Court has remedial power under s 27 of the Federal Court of Australia Act 1976 (Cth) to admit fresh evidence so as to ensure that proceedings do not miscarry. Rule 36.57 of the Federal Court Rules 2011 (Cth) sets out the requirements of an application, however no application was made here. Despite this, I am able to dispense with that formality, and note the recent observations of the Full Court in BVZ21 v Commonwealth of Australia [2022] FCAFC 122 at [12]:

The Court has the power to admit fresh affidavit evidence on an appeal pursuant to s 27(a) of the Federal Court of Australia Act 1976 (Cth). The power to admit further evidence is remedial and its primary purpose is to ensure that proceedings do not miscarry. In exercising the discretion, the Court will normally need to be satisfied that the further evidence, had it been adduced at trial, would very probably have meant that the result would have been different, and further that the party seeking to adduce the evidence was, at trial, unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence: Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [15]-[16] (Griffiths, Mortimer and White JJ).

24    It appears by grounds two and three, the appellant was seeking to rely on the following fresh evidence on appeal:

(a)    the affidavit of the appellant sworn on 18 July 2021 (titled “Affidavit 1”) and its accompanying annexures KWH1 and KWH2; and

(b)    the affidavit of the appellant sworn on 31 October 2021 (titled “Affidavit 3”) and its accompanying annexures KWH4 to KWH9.

25    With respect to Affidavit 1, this evidence appears to be “updating evidence” which was not before the primary judge. Annexure KWH1 contains country information concerning minority groups and corruption in Malaysia. Whilst some information is undated, the balance of the information is dated between 2019 and 24 March 2021. No explanation was provided for why this information was not put before the primary judge. Further, the information is of a wide-ranging generic nature from a variety of sources at various points of time.

26    Annexure KWH2 appeared to be a message sent from an unidentified person to another person on an unidentified online platform in a foreign language. The message appears to be dated 7 May in a year not identified. The appellant deposed that the message is a “copy of the Facebook screenshot of my mother’s Facebook account from May 2021”. The appellant had not provided any evidence to explain what the message says, nor has he provided a certified translation of the document.

27    Affidavit 3 annexes six character references. They attest to the appellant’s good character and his life in Australia. I have no reason to doubt the appellant’s good character and the positive contribution he has made in the time he has been in Australia. However, as referred to above, this Court does not have jurisdiction to determine whether the appellant is granted a visa and the appellant’s good character and contribution to the community is not in issue in these proceedings.

28    The application to rely on this fresh evidence is refused given the absence of any submissions as to the utility of this additional evidence on appeal to demonstrate how the primary judge erred in his conclusions and the absence of an explanation for why it was not placed before the primary judge. It does appear that, even if this evidence had been before the primary judge, the appellant would have been asking for the primary judge to engage in impermissible merits review.

Conclusion

29    For the above reasons, the appeal is dismissed with costs.

Associate:

Dated:    5 December 2023