FEDERAL COURT OF AUSTRALIA MZAPH v Minister for Immigration and Border Protection [2016] FCA 1527 Appeal from: MZAPH v Minister for Immigration & Anor [2016] FCCA 1867 File number: VID 994 of 2016 Judge: MCKERRACHER J Date of judgment: 23 November 2016 Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 65, 424A Date of hearing: 23 November 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 25 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr O Young Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent submits to any order of the Court, save as to costs ORDERS VID 994 of 2016 BETWEEN: MZAPH Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: MCKERRACHER J DATE OF ORDER: 23 NOVEMBER 2016 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT REVISED FROM THE TRANSCRIPT MCKERRACHER J: 1 The appellant is a citizen of Malaysia who entered Australia in August 2005. Following expiry of his electronic travel authority he remained in Australia as an unlawful non-citizen, but made his first application for a protection visa in June 2010 which was refused. 2 Now before this Court is an appeal filed on 19 August 2016 from a decision of the Federal Circuit Court of Australia, given earlier that month on 1 August 2016. In that decision, the Federal Circuit Court ordered that an application for judicial review of a decision of the Refugee Review Tribunal be dismissed with costs. The Tribunal's decision was given on 12 November 2014. On that occasion the Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth). 3 The grounds of appeal from the Federal Circuit Court decision, which are relied upon today by the appellant are: (1) that the Federal Circuit Court judge failed to find that the Tribunal's decision was in breach of s 424A of the Act, and therefore fell under jurisdictional error; (2) that the Tribunal accepted part of the appellant's claims that he had been convicted of an offence and served time in jail between 1992 and 2004, but it found that the balance of the claim had been fabricated. The Tribunal did not explain why it did not accept the remainder of the appellant's claims; and (3) that the Tribunal made an adverse finding on the appellant's credibility based on fabricated refugee claims provided in his first visa application. In making that adverse finding, the appellant complains that the Tribunal failed to consider the fact that the fabricated claims were made by the appellant's former agent without the appellant's knowledge. 4 The appellant also seeks to add an additional general ground of jurisdictional error, but there are no further specifics in relation to that ground. ORAL ARGUMENT 5 The appellant focussed his complaints today on the claim that he was unaware of the grounds relied upon by his agent who he said relied on the same grounds lodged for another appellant. The appellant asserted that he simply signed the relevant forms, not having a good understanding of the English language, or Australian processes and was unaware of the content of the claims which were subsequently found in substantial measure to be false. He says he did not explain that problem to the Federal Circuit Court. BACKGROUND 6 The appellant claimed to fear harm because he ran a successful factory that he was forced to close by a government official who opened another factory in the area, so that the government official could gain advantage. Because of his Chinese ethnicity, he could not pursue higher education. Because of his involvement in drug trafficking and gang activity he was also prejudiced. 7 On 12 June 2014, a delegate of the Minister refused to grant the visa on the basis that the appellant did not satisfy s 36(2)(a) and s 36(2)(aa) of the Act. The delegate noted in his decision that he had serious concerns in relation to the credibility and genuineness of the appellant's claims. IN THE TRIBUNAL 8 The appellant sought review to the Tribunal from the decision of the delegate on 8 July 2014. As a consequence of that application, on 8 October 2014, the Tribunal invited the appellant, pursuant to s 424A of the Act, to which the appellant refers in his first ground of appeal, to comment or to respond to information. The particulars of the information were that the appellant had stated on his visa application form that he had lived in Malaysia from birth until 2005, and that he had never travelled outside of his home country, but the appellant had presented to the delegate a Singapore driver's licence issued on 21 February 1998. He claimed to have been imprisoned in Malaysia between 1992 and May 2004. This gave rise to a concern of inconsistency. The appellant stated in his visa application form that he had no family in Australia, but in his compliance interview with the Department he stated that his wife and child were in Melbourne. The appellant's claims at his first visa application were regarded by the delegate as being entirely inconsistent with the claims made in the second visa application. 9 There were further developments. On 11 November 2014, the appellant's agent provided the Tribunal with a translation of the appellant's Malaysian criminal record which showed that the appellant was arrested on 28 May 1992 for possession of heroin and suspected involvement in drug trafficking activities. It showed that the appellant was sentenced to death by hanging on 6 September 1995, but that sentence was commuted to an imprisonment sentence of 18 years, subsequently reduced to 12 years. 10 On 12 November 2014, the appellant appeared before the Tribunal to give evidence and present arguments, assisted again by an interpreter, as he is today. The Tribunal on that day affirmed the delegate's decision under review, concluding that the appellant lacked credibility. The Tribunal did not accept that the claims made in the second visa application were truthful. It found that there was no real chance that the appellant would be harmed because of his race or his membership of a particular social group, however defined, or his criminal activities or involvement in the gang, or the information he gave to police, his conduct in prison or for any other reason, and that the appellant did not have a well-founded fear of persecution for any Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) (Refugees Convention) related reason. For the same reasons, the Tribunal found that there was no real risk of suffering significant harm on return to Malaysia within the meaning of s 36(2)(aa) of the Act. 11 The Tribunal did, however, accept that the appellant had been convicted of an offence and served a sentence of imprisonment for 12 years, between 1992 and 2004, but rejected the balance of the claims for at least 12 specific reasons. These reasons were articulated in detail (at [14]-[25]) as follows: 14. The [appellant] informed the Tribunal the driver's license is a false document which he asked a friend to obtain because he needed a driver's license or a proof of identity in Australia. If that claim is to be accepted, the Tribunal is concerned by the [appellant's] preparedness to obtain and provide false documents to Immigration officers. The [appellant's] willingness to do so is suggestive of his lack of credibility. 15. Secondly, the [appellant] stated on the protection visa application form that he had no family in Australia. He stated that he had never married or in a de facto relationship. The [appellant] confirmed in his oral evidence to the Tribunal that he was in a de facto relationship and that his partner and son reside in Australia on student visas. The [appellant] explained to the Tribunal that he was worried his son would be implicated if his application was refused and that is the reason he did not mention the de facto relationship or the child. What is of concern to the Tribunal is that the [appellant] deliberately provided untruthful information on the application form and he did so because he determined that it better suited his circumstances. Again, the Tribunal finds that the [appellant] is not a person of credibility and that he is willing to be untruthful in his dealings with Immigration. 16. Thirdly, and of utmost concern to the Tribunal, is the [appellant's] conduct in making the first protection visa application. The [appellant] previously made the application for the protection visa on 24 June 2010. In that application the [appellant] claimed the reason he left Malaysia was because he had a glass manufacturing factory and in 2005 another factory opened, owned by a government officer, who wanted to monopolise the market and asked the local bullies to threaten the [appellant]. The [appellant] claimed his factory was sealed and he was forced to flee Malaysia. He stated he did not wish to return to Malaysia because the government officer may harm him as he did to obey their orders. These claims are entirely inconsistent with the claims made in the current application. The [appellant] confirmed in his oral evidence to the Tribunal that such claims were not true. 17. The [appellant] claims that he was not familiar with the information in his previous application, which was prepared by an agent. The Tribunal does not accept that explanation. The [appellant] had been living in Australia for five years before he made his first protection visa application. He had ample time to prepare for that application and to decide what information he wished to rely on to seek protection. If the [appellant] was at all genuine in his claim that he was in need of protection, the [appellant] would have made at least some effort to read his application for protection before it was submitted. Presumably, the [appellant] would have signed the application form to make the application and in his current application he claims to be able to read, write and speak English, so he would have no difficulty familiarising himself with the content of that first application throughout the application process. He could have easily asked his migration agent to explain the content of the application and the application process before instructing the agent to go ahead or before paying the agent. The [appellant] had ample time and opportunities to familiarise himself with his protection visa application. The Tribunal does not accept that the [appellant] was entirely unfamiliar with his previous application as he now claims. The Tribunal is of the view that the [appellant] was well aware that false information was being submitted by the agent and he was entirely indifferent about that fact. The [appellant's] willingness to provide false information in his protection visa application, or his indifference about the agent's conduct in providing false information on his behalf suggests to the Tribunal that the [appellant] is not a person of credibility. 18. Further, the [appellant] now claims that the information he provided in his present application is true and correct. However, if that was so, there appears to be no logical reason for the [appellant] to have fabricated an entirely different story in his first protection visa application. That is, if the [appellant] genuinely believed there was a danger to his life from gang members, as he now claims, and if the information in his present application was true, the [appellant] would have ensured that such information was the basis of his application, rather than authorise his agent to make up a what he now claims an entirely false story. The fact that the [appellant] made no effort to disclose what he now claims was the real reason for his fear, instead fabricating (or allowing his agent to fabricate) different claims, is a strong indication, in the Tribunal's view, that the [appellant] is not being truthful in the claims he put forward in his present application. 19. The [appellant] stated in his oral evidence to the Tribunal that the agent informed him he needed, a visa and the [appellant] said as long as he had a visa, he did not know what the agent was doing. The [appellant's] suggestion implies that the [appellant] was willing to make an application for protection, in which he had no interest whatsoever and which he knew to have been false, for the sole reason of enabling him to remain in Australia. The [appellant's] claimed conduct indicates that the [appellant] is willing to fabricate claims, or allow such claims to be fabricated on his behalf, in a protection visa application, to be able to remain in Australia. In the Tribunal's view, that casts strong doubt on the veracity of the [appellant's] claims made in the present application. Essentially, the Tribunal is concerned that the claims put forward in the present application have also been fabricated to enable the [appellant] to extend his stay in Australia. · 20. The Tribunal has several other concerns about the [appellant's] evidence put forward in the present application, which suggest that he has not been truthful in his claims. These are noted below. a. When asked about his employment in Malaysia; the [appellant] initially informed the Tribunal that both before and after he was in jail, he helped his parents with their shop. The [appellant] expressly confirmed that he helped in his parents' shop after his release. He then said he helped in the shop 1-2 days a week but he was scared at the time. The [appellant] then denied working in the parents' shop after being released. The [appellant] ultimately stated that he did spend 1-2 days a week in the parents' shop but he was not much help before he changed his evidence again and said he only spent 1-2 days in the shop after he was released and after that he occasionally visited his parents for money. The Tribunal has formed the view that the [appellant] had not been truthful in that evidence, which is relevant because according to his written claim, the [appellant] went into hiding at a friend's place after his release from prison. In the Tribunal's view, if the [appellant] was in hiding at a friend's place, he could not have been working at his parents' shop. b. In his oral evidence to the Tribunal the [appellant] stated that the reason he was fearful of future harm is because he told the authorities about the gang's activities during the arrest and he also tried to bully other gang members while in jail. The [appellant] did not make any of these claims in his protection visa statement. Indeed, the [appellant's] claim in his application is that he was almost killed in prison by the gang members, rather than that he himself was the bully. The [appellant] specifically informed the Tribunal that nobody tried to kill him in prison because it is impossible to do so. That contradicts the written claim made by the [appellant's] agent that he was 'almost killed' by other gang members in prison. c. The [appellant's] description of being harassed upon his release from prison was vague and unconvincing. He claims three cars tried to bump into him and run him off the road but he was able to escape. He did not explain how he knew the cars were driven by gang members. He was not able to explain any connection between gang members and the incident, other than to state that he was threatened before. When asked how he was able to escape three cars following him, the [appellant] suggested his father had good driving skills. The Tribunal considers it implausible that the [appellant] would have been able to escape three cars trying to cause him harm, then continue safely to his parents' home without being followed and remain at his parents' home for 1-2 days without any problems. d. The Tribunal also notes that in the written statement the [appellant] stated that after managing to flee from the cars, he did not dare to return home. The [appellant's] evidence to the Tribunal is that he returned to his parents' home and remained there for 1-2 days. e. The [appellant] informed the Tribunal that after he was released, he was told by others that gang members were looking for him in order to harm him. The [appellant] has not made that claim in his protection visa application. When asked how he became aware of that, the [appellant] stated he visited a bar which was frequented by former inmates and he was warned by the owner that gang members were looking for him. The Tribunal considers it implausible that if the [appellant] was in hiding and trying to avoid gang members, he would be visiting the bar which was frequented by former prisoners and where he could be most easily identified and located. 21. The Tribunal has formed the view that the [appellant] has not been truthful in his claims. 22. The Tribunal also notes that no harm had been perpetrated against the [appellant] in the past. He claims he was threatened in jail but there was no harm because it is difficult to harm someone in prison. He claims even though he was followed in a car after being released from jail, he safely reached his parents' home where he stayed for up to two days. There was no attempt to harm him in that period. He remained in Malaysia for a further 15 months without any problems. In the Tribunal's view, that indicates that there was never any desire to harm the [appellant]. Having regard to the Tribunal's findings relating to the [appellant's] overall credibility, the Tribunal's concerns about the [appellant's] claims made in the present application as outlined above, and the fact that there had been no attempt to harm the [appellant] in the period after his release from prison and before his departure from Malaysia (apart from the car incident which the Tribunal finds to be implausible), the Tribunal has formed the view that the [appellant] had fabricated these claims and that there has never been any intention to harm the [appellant]. 23. The Tribunal is supported in its view by the very lengthy delays in the [appellant's] departure from Malaysia and the application process. 24. The [appellant] informed the Tribunal he was released from prison in May 2004. He did not enter Australia until August 2005. The [appellant] informed the Tribunal he did not speak English and did not know how to leave or which country to go to and it was not until his friend was making arrangements to work in Australia that he learned about it. In the Tribunal's view, if the [appellant] was genuinely fearful for his safety and well-being, if he thought he could be found, he would have made an effort to leave the country in those 15 months. The [appellant] did not need to know English to be able to make inquiries in Malaysia. The [appellant's] decision to leave Malaysia appears to have been a result of his friend's offer of work rather than any attempt to avoid harm. In the Tribunal's view, that indicates that the [appellant] did not have any fear of harm and the reason he left the country was not because of such claimed fear but rather because he saw better opportunities in Australia. 25. According to the primary decision record, the [appellant] first entered Australia in August 2005. He made his first application for the protection visa in June 2010. His visa ceased in November 2005 and the [appellant] had been living in Australia unlawfully, so there was a chance of him being detected and removed from Australia. Despite that, it took the [appellant] nearly five years to seek protection in Australia. In the Tribunal's view, if the [appellant] had any fear of persecution, he would have made some effort to seek protection less than five years after his arrival in Australia. The significant delay in his doing so also suggests the [appellant] had no fear of harm and that he had not been truthful in his claims. IN THE FEDERAL CIRCUIT COURT 12 On 15 December 2014, the appellant sought judicial review of the Tribunal's decision in the Federal Circuit Court. He raised the following grounds in support of that application. The first was that: The Tribunal accepted part of my claims that I've been convicted of an offence, served time in jail between 1992 and 2004, but found that the remainder of the claims had been fabricated without explaining why it did not accept the remainder of the claims. It will be noted that it corresponds with ground 2 of today's appeal. 13 The second ground before the Federal Circuit Court was that the Tribunal made an adverse finding on the appellant's credibility, based on fabricated refugee claims provided in the first protection visa application, but failed to consider the fact that the fabricated claims were made by the appellant's former agent without his knowledge. Again, it will be seen that that reflects ground 3 of today's appeal. 14 There was a hearing in the Federal Circuit Court on 6 July 2016. The Federal Circuit Court dismissed the appellant's application for judicial review. The decision set out the procedural background of the matter before the Department and the Tribunal, and the claims before the primary judge. The primary judge noted that the Tribunal had made a number of significant credit findings adverse to the appellant, and held that the Tribunal's findings were open to the Tribunal to make. In relation to the actual application before the Federal Circuit Court, the primary judge observed that the appellant, when queried in relation to the visa application responded to words to effect that 'all I wanted was to stay here and not be deported. I was doing everything I could to get the visa.' 15 In relation to the first ground of appeal in the Federal Circuit Court, his Honour noted that the Tribunal accepted that the appellant had been convicted and imprisoned in Malaysia, but made a number of credit findings which were, as his Honour concluded, devastating to the appellant's credibility. The primary judge concluded that those findings of credit were open to the Tribunal on the materials, and that there was nothing illogical or unreasonable in the Tribunal's credibility findings and that to go further in the judicial review application would amount to a merits review in its starkest form, which would be impermissible. 16 In relation to the second ground, his Honour found that the ground was misconceived, in that it mischaracterised the nature of the Tribunal's findings. His Honour observed that the Tribunal did not accept that the appellant had no knowledge of the claims made in the first visa application, and noted that the Tribunal found that the appellant was well aware that the false information was being submitted by the agent and was entirely indifferent about that fact. The primary judge concluded that such credit findings were open to the Tribunal on the material and it was not open for him to conduct a merits review to disturb those findings. BEFORE THIS COURT 17 Similar grounds of appeal are advanced today but there is first an additional ground. 18 The first ground relates to a breach of s 424A of the Act, which caused the Tribunal to fall into jurisdictional error. Technically, the appellant would require leave of the Court to raise this new ground because the argument, as currently asserted, was not raised before the Federal Circuit Court. Additionally, nothing has been said today in submissions made which would touch upon a contravention of s 424A of the Act and no particularisation in any form has been given, either in a proposed ground of appeal or by way of argument in relation to that specific matter. So in the absence of being able to demonstrate any appealable error, which could be advanced pursuant to that provision, leave cannot be granted to amend to rely upon that ground as it could not succeed. 19 Additionally, the ground is misconceived because it is quite apparent that the Tribunal did comply with its obligations under Pt 7 Div 4 of the Act. Particularly in relation to s 424A, it provided the appellant by way of an invitation sent pursuant to s 424A of the Act, an opportunity to comment on information adverse to his claims. There being no other information as referred to in that provision relied on by the Tribunal that was required to be put to the appellant for comment, for the purpose of s 424A that ground of appeal could not succeed and leave to advance it would not be granted. 20 As to the second ground of appeal, I have canvassed this in consideration of the approach taken by the primary judge below, and in his Honour's consideration of the same ground, and the complaint that there was a failure on the part of the Tribunal to explain why it did not accept the remainder of the appellant's claims apart from the imprisonment. The difficulty with this claim at this point and in the Federal Circuit Court is that the disagreement with the Tribunal's decision is simply a claim for merits review which this Court is not entitled to undertake. 21 The primary judge noted that the Tribunal made some 12 findings that were very damaging to the appellant's credit, which were set out in detail in the decision. The findings of fact by the Tribunal were not only open, but the only reasonable conclusions which might be anticipated in light of the history which was set out by the Tribunal. 22 The primary judge, in my assessment, was correct to find that there was nothing illogical or unreasonable in the Tribunal's credit findings, not that the ground of appeal has been cast quite in those terms. There cannot be any lack of logic or unreasonableness by the Tribunal (within the meaning of those terms as legal concepts). In my view, the primary judge was correct in dealing without ground 2. 23 Ground 3 was the concern expressed that the Tribunal failed to consider the fact that the fabricated claims were made by the appellant's former agent without his knowledge. It is clear that the primary judge did consider this claim and clear also that the Tribunal considered this claim, having already conducted an assessment as to the credibility of the appellant generally, and reached a negative conclusion in that regard. It was open in the context of the explanation given in relation to credibility generally for the Tribunal and the primary judge to conclude that the appellant was not, as he asserted, unaware that false information was being submitted by the agent, and was willing to accept that such information be advanced in support of his claim in order to enhance his prospects. The primary judge was entitled to conclude that the Tribunal's assessment was open on the material before it. That ground of appeal will be dismissed. 24 The additional ground sought to be advanced of a general jurisdictional error, as I say, has not been supported or developed in argument in any way. 25 As none of the grounds of appeal have met with any success the appeal must be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 15 December 2016