AAE16 v Minister for Immigration
[2017] FCCA 2667
•3 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAE16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2667 |
| Catchwords: MIGRATION – Application in a case to reinstate proceeding – protection visa application – applicants travel from Malaysia to Australia on valid passports and electronic travel documents – applicants lodge protection visa application – fears of harm by reason of intolerance for applicant’s Buddhist religion and Chinese ethnicity – applicants fail to attend Departmental interview – delegate refuses applications grounding decision on adverse credibility findings and finding that there is no risk of harm – Tribunal affirms delegate’s decision refusing application – consent orders to set down hearing – application dismissed for non-appearance – reinstatement application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.06, 44.11 Migration Act 1958 (Cth), ss.5H, 5J, 36, 499 Migration Regulations 1994 (Cth), Sch 2 cl 866.221 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 BTR15 v Minister for Immigration and Citizenship[2010] FCA 530 Ngu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 21 Pham v NRMA Insurance Ltd [2014] NSWCA 22 Plaintiff M47 / 2012 v Director General of Security (2012) 251 CLR 1 Shretha v Migration Review Tribunal (2015) 229 FCR 301 |
| First Applicant: | AAE16 |
| Second Applicant: | AAF16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 5 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 31 May 2017 |
| Date of Last Submission: | 31 May 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 3 November 2017 |
REPRESENTATION
| Counsel for the Applicants: | In person |
| Counsel for the First Respondent: | Mr Leerdam |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Second Respondent: | Having filed a submitting notice |
ORDERS
The application in a case filed 3 April 2017 is dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 5 of 2016
| AAE16 |
First Applicant
| AAF16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Application is made to reinstate an application for judicial review.
I have determined that the application should be dismissed. My reasons follow.
Background
The applicants are Malaysian nationals of Chinese origin who are aged 58 and 59 respectively. They were married in 1998.
On 25 December 2014, the applicants travelled to Australia from Malaysia as holders of Malaysian passports and electronic travel authorities. Those travel authorities allowed the applicants’ multiple entries to Australia with a stay of three months from the date of arrival.
On 23 March 2015, the first applicant made application for a protection (Class XA) visa. The second applicant was included as a member of the same family unit in the visa application of the first applicant.
The husband’s visa application indicates that he had undertaken some 11 years education and worked in Malaysia as a sales executive for over 36 years. He is fluent in English, Bahasa Malay and also speaks Chinese. The second applicant is also fluent in Chinese and is able to speak and read English and Bahasa Malay. The applicants were raised as Buddhists.
The husband’s application identified the basis for the protection visa as being that “we been force (sic) to join the Islam religion.” The husband’s application expanded upon this answer, variously stating that Muslim people had come to his house and threatened him and beat him and that they had hurt his family. The husband identified the fear that he held if required to return to Malaysia in these terms, “The Islam Haji will force me and my family to join Muslim and they also threaten to hurt me and my family.” He said that he had gone to the police to make a report but that they had not been responsive to his request for protection. The details included in the applicants’ personal assessments indicate that the stated reason for remaining in Australia was that they were “looking for opportunity to long stay and start new living.”
A delegate of the Department of Immigration and Border Protection (delegate) determined that the applicants’ visa applications were valid. On 12 May 2015, the applicants were invited to attend an appointment for the purposes of providing personal identifiers. The applicants did not respond to those invitations. In those circumstances, the delegate proceeded to determine the applications based upon the information that was then available.
Delegate’s decision
On 26 August 2015, the delegate refused the applicants’ visa applications. The delegate was not satisfied that the applicants were non-citizens in respect of whom Australia held protection obligations.
The delegate, who was provided personal identifiers by the applicants, found that the applicants were the persons having the family names, given names and dates of birth as they claimed them to be. Despite the absence of supporting evidence, the delegate also accepted that the second applicant was a member of the same family unit as the first applicant.
The delegate identified the legislative criteria contained in paras 36(2)(a) and (aa) of the Migration Act 1958 (Cth) as governing the grant of a protection visa in the case of an applicant and in the case of a member of the applicant’s family unit.
The delegate found that the first applicant was a Malaysian national and that, for the purposes of the assessment of the visa application, Malaysia was the first applicant’s receiving country. The delegate further found that, other than his country of citizenship, the first applicant did not have a right to enter into or reside in another country.
The applicant’s claims for protection were rejected on the basis that the delegate was not satisfied that the claims of fearing harm in Malaysia were credible. The delegate concluded that they were vague, lacking in detail and were not supported by other evidence.
As concerned country information, the delegate referred to that which had been provided by the Department of Foreign Affairs and Trade (DFAT) and other credible sources including the 2013 International Religious Freedom Report for Malaysia and the Freedom in the World 2015 report for Malaysia, noting that freedom of religion was written into the Malaysia Constitution as a protected right and acknowledging that some restrictions were placed on religious freedom in Malaysia and that Islam (Sunni) was the state religion.
The delegate also noted that Buddhists represented 19.8% of practicing religions in Malaysia and further that both state and federal governments supported the building of Hindu and Buddhist places of worship throughout Malaysia. The delegate referred to the DFAT report that “overall, DFAT assesses that Buddhists and Hindus are normally able to practice their religion without interference and do not face discrimination on a day-to-day basis in Malaysia.” The delegate found on those bases that the applicant’s claims of being forced to join Islam were not credible.
By reference to other DFAT country information the delegate did not find that the authorities across the whole of Malaysia would fail to provide the applicant or his wife with protection. The delegate concluded that the applicant was speculating about being harmed and also about police protection not being available to him or to his spouse.
In addition, the delegate considered that the first applicant’s failure to attend an interview cast doubt upon both the credibility of his claims and the genuineness of his claimed fear of harm if he was to return to Malaysia. The delegate found that, had the first applicant held a genuine fear of serious or significant harm, he would have taken every opportunity to discuss his circumstances and his fear of harm in Malaysia. Finally, the delegate noted that when the first applicant had completed his personal assessment form he had identified the reason for remaining in Australia as being that he was looking for an “opportunity to long stay and start new living.”
The delegate concluded that the applicant did not have a genuine fear of harm in Malaysia, that he had lodged his application in order to prolong his stay in Australia and that the applicant’s claims of fearing harm on account of his religion were not genuine or credible.
The delegate was not satisfied that the applicant had a genuine subjective fear of being persecuted in Malaysia or that country information did not support such stated claims. The delegate found that the applicant did not have a well-founded fear of serious harm for the purposes of sub-s 5J(1) of the Act and was therefore not satisfied that the applicant’s fear of persecution was well founded. In those circumstances, the delegate was not satisfied that there was a real chance of persecution for one or more of the reasons in para 5J(1)(a). Accordingly, the delegate found that the first applicant was not a refugee within the meaning of s 5H and thus concluded that that criterion in para 36(2)(a) was not made out.
As concerned complementary protection, the delegate was not satisfied that the first applicant was a person in respect of whom Australia had protection obligations within the meaning of para 36(2)(aa) of the Act. For that reason, the delegate did not proceed to consider whether the first applicant was otherwise a person rendered ineligible for a protection visa by force of sub-s 36(2C) of the Act.
The delegate was not satisfied that the first applicant was a person to whom Australia had protection obligations under s 36 of the Act of sub-cl 866.221 of Schedule 2 of the Migration Regulations and accordingly, refused to grant the protection visa application.
Correspondingly, the delegate also refused the second applicant a protection visa as a member of the first applicant’s family unit.
Application for merits review
The delegate advised the applicants of their right to review the decision. On 18 September 2015, the applicants sought review of the delegate’s decision. The applications were made to the then Refugee Review Tribunal, now Administrative Appeals Tribunal (Tribunal).
On 18 November 2015, the Tribunal invited the first applicant to appear before it to give evidence and present arguments relating to the issues arising in the case. The invitation was transmitted by email to the email address stated in the application for review. The letter advised that the Tribunal had fixed a hearing date of 6 December 2015.
On 30 November 2015, the first applicant contacted the Tribunal informing it that while he had received a SMS text message reminding him of the appointed hearing date, he had not received an invitation to attend such hearing.
The Tribunal adjourned the hearing to 9 December 2015.
On 9 December 2015, a hearing was conducted by the Tribunal. The applicants requested and obtained the assistance of a Mandarin/English speaking interpreter at that hearing.
On 11 December 2015, the Tribunal affirmed the delegate’s decision to refuse the applications. The applicants were notified of that decision on 14 December 2015.
Tribunal’s reasons
The Tribunal’s reasons referred to the background to the applications and identified and discussed the criteria for the grant or refusal of a protection visa under s 36 of the Act.
By sub-s 499(1), the Minister may give written directions to a body having functions or powers under the Act about the performance of those functions and the exercise of such powers. A body must comply with such a direction: sub-s 499(2A). Ministerial Direction No 56 is such a written direction. The Tribunal is such a body.
The Tribunal’s reasons cited Ministerial Direction No 56 and stated that it had taken account of policy guidelines prepared by the Department of Immigration – referred to as PAM3 Refugee and humanitarian – Complimentary Protection Guidelines and PAM3 Refugee and humanitarian – Refugee Law Guidelines. The Tribunal also stated that, to the extent relevant, it had taken account of relevant country information prepared by DFAT expressly for ‘protection status determination purposes’.
The Tribunal’s reasons recorded its consideration of the claims and evidence. The reasons distilled the applicants’ ethnic backgrounds, places of birth, their religion and their multi-lingual abilities. The applicants lawful departure from Malaysia was noted as was the date of their arrival in Australia. The Tribunal’s reasons provided a summary of the claims for a protection visa and recorded in detail the evidence that was given by each of the applicants.
The Tribunal put to the applicants the differences which it had discerned in the accounts that were given by them in their evidence and then put to them certain country information concerning the situation in Malaysia for Buddhists and ethnic Chinese generally. The Tribunal’s reasons record that the applicants contested that information.
The Tribunal found that the issue on review was whether the applicants had a well founded fear of being persecuted for one of the five reasons set out in sub-s 5J(1) and, if not, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to their receiving country of Malaysia, there was a real risk that the applicants would suffer significant harm.
The Tribunal concluded that the decision under review should be affirmed, reasoning that key elements of the applicants’ account of what they said had happened to them in Malaysia were not true. It rejected the contentions that the applicants had been visited at their home by Muslim people who asked them to convert to Islam. It rejected the assertions that the applicants had been slapped or beaten so as to encourage them to so convert. The Tribunal did not accept that the first applicant had made a report to the police or that such report had been ignored. It did not accept that, if returned to Malaysia, the applicants would be forced to convert to Islam.
In reaching those conclusions the Tribunal identified six factors which, cumulatively supported the Tribunal decision as follows:
(a)the applicants were considered to have not been forthcoming in giving their evidence. Their answers were considered to be brief and generalized and they were unable to provide further detail when asked to do so. Although they had relied upon an account in October 2014 in which they claimed to have been the subject of Muslim attack at their home, they were unable to account for their whereabouts from that time until they had left Malaysia on 24 December 2014. The Tribunal concluded that their evidence was vague and evasive;
(b)the applicants’ evidence of the alleged slapping incident was examined and found to be essentially inconsistent;
(c)the applicants’ evidence of the number of Muslims who had allegedly attended their house was different;
(d)the applicants’ evidence of the number of occasions on which Muslims had allegedly attended their house was different;
(e)the applicants’ evidence of the nature of the verbal exchanges with the Muslims who had allegedly attended their house was inconsistent;
(f)the applicants’ evidence as to whether the first applicant had made a report to police was also inconsistent.
The Tribunal’s reasons also record its examination of country information and concluded that the applicants did not face a real chance of persecution amounting to serious harm from Muslims in Malaysia due to their Buddhist religion or their Chinese ethnicity. The Tribunal found the applicants did not therefore require protection of the authorities in Malaysia.
In those circumstances, the Tribunal concluded that neither applicant was a person in respect of whom Australia had protection obligations under paras 36(2)(a) or 36(2)(aa).
The Tribunal concluded that neither applicant satisfied the criteria in sub-s 36(2).
Application for judicial review
On 4 January 2016, the applicants filed a proceeding in this court seeking an order that the respondents show cause why a remedy ought not be granted in exercise of the court’s jurisdiction granted under s 476 of the Act in respect of the Tribunal’s decision.
Two grounds were identified in the application as supporting the claim:
(a)AAT presumed that I should be very specific about the date. AAT was unreasonable and unreal;
(b)AAT tried to discredit me by interviewing my partner. She was unaware of event (sic) happened and should not be considerate (sic).
On 4 January 2016, the first applicant affirmed an affidavit to which he exhibited a copy of the Tribunal’s reasons. The affidavit contained no further information.
The first respondent filed a response opposing all orders sought on the stated basis that the applicants sought an impermissible merits review of the Tribunal’s decision.
On 8 June 2016, orders were made by consent dispensing with a hearing under r 44.11(c) of the Federal Circuit Court Rules 2001 (Cth), and setting the application down for a final hearing. By those consent orders, the application was set down for final hearing on 15 March 2017 and further orders were made regulating the procedural steps to be taken by each party, including with respect to the filing of any amended application and additional grounds of review, affidavits, transcript of the Tribunal hearing, outlines of submission and list of authorities.
The applicants did not take the opportunities afforded to them by those orders. No affidavits or submissions were filed by the applicants.
On 1 March 2017, the Minister filed and served (by express post and email), his outline of submissions. On 8 March 2017, the Minister filed an affidavit deposing to service of that outline and exhibiting the covering letter addressed to the applicants (see below).
On 15 March 2017, an order was made that the application be dismissed with costs. Those orders were made in default of any appearance by or on behalf of the applicants.
On 3 April 2017, the applicants filed an application in a case which stated that the orders sought by the applicants were: “(1) re-open Court; (2) I wish Judge A Kelly will consider to re-open the Court case as above file number: MLG5/2016.” The application in a case, was signed by the first applicant and expressed to be filed on behalf of both applicants.
On the same date, the first applicant affirmed an affidavit in which he deposed that, “I missed the appointments because I did not aware my interview on 15th of March because I forgotten because I lost phone and I’m not able to back track.”
The application in a case was heard on 31 May 2017 and judgment reserved.
Applicable principles
Where an applicant does not appear at a hearing, the court may dismiss the application: r 13.03C(1)(c) Federal Circuit Court Rules 2001.
The court may set aside an order made in the absence of a party: r 16.05(2)(a). The applicable principles are well settled.
In CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344, Mortimer J held at [4]:
. . . the exercise of that discretion is a broad one, but three factors are consistently considered. They are whether the applicant has an adequate explanation for the non-appearance, whether there is any prejudice to the Minister if the matter is reinstated, and finally whether the applicant has an arguable case on judicial review.
see also BTR15 v Minister for Immigration and Citizenship[2010] FCA 530 at [7] (Edelman J); MZYEZ v Minister for Immigration and Citizenship[2010] FCA 530 at [7] (Ryan J) and MZKAJ v Minister for Immigration and Multi-Cultural and Indigenous Affairs(2005) FCA 1066 at [18] (North J).
I apply these principles in the present applications.
Consideration
Explanation for non-appearance
The first applicant’s affidavit affirmed on 3 April 2017, does provide some evidence as to the reason for the applicants non-attendance at the hearing on 15 March 2017. It does, however, stand in marked contrast to the other evidence in the case.
The same residential address had been provided by the applicants when completing respectively each of their applications for review of the delegate’s decision to refuse them a protection visa, the application by which this proceeding was commenced and the two affidavits that were affirmed on 4 January 2016 and 3 April 2017.
The same email address had also been provided by the applicants in their personal particulars, their application for review of the delegate’s decision, the application by which this proceeding was commenced and the affidavit that was affirmed on 4 January 2016 (the affidavit affirmed on 3 April 2017 contained a different email address).
As noted above, on 8 March 2017, the Minister filed an affidavit deposing to service of the Minister’s outline of submissions. The affidavit exhibited a copy of a covering letter addressed to the applicants. This letter stated in part:
We remind you that this matter is listed for hearing as follows . . . If you do not attend we may seek to have the matters dismissed (with costs) for non-appearance. (Emphasis added)
This letter squarely identified the date, time and address at which the hearing would be held. It warned the applicants that their application could be dismissed for non-appearance.
The affidavit of service proved that that letter and the enclosed outline of submissions had been served, both by email and by courier, on the applicants. The letter was addressed to the residential address that had been provided by the applicants in all cases. The letter was addressed to the email address that had been provided by the applicants in their personal particulars, their applications for review of the delegate’s decision, the application by which this proceeding was commenced and the affidavit that was affirmed on 4 January 2016.
Although the first applicant was not cross-examined on his affidavit, I entertain significant doubt whether I should accept the applicants’ explanation for not attending the hearing listed for 15 March 2017. While the adequacy of the applicants explanation is not a decisive consideration it remains a matter which I take into account.
Prejudice
The Minister did not submit that any prejudice could be demonstrated against the grant of the application.
Merit of substantive application
In CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344, Mortimer J held at [4] that the consideration of the merits of the application was:
. . . important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful.
I respectfully endorse that reasoning.
The consideration which weighs against the grant of the application to set aside the order dismissing the application is that the application for judicial review does not disclose a tenable ground of review.
I agree in the Minister’s submissions that the grounds advanced by the applicants ascend no higher than to impermissibly seek a merits review by this court. In an application for judicial review of a tribunal’s decision it is impermissible to seek that this court to undertake review based upon grounds which press explicitly, or otherwise disguise, a claim for a merits review: Gupta v Minister for Immigration and Border Protection[2017] FCAFC 172, [62] (Gilmour and Mortimer J, Logan J agreeing) citing Minister for Immigration and Multicultural Affairs v Jia Legeng(2001) 205 CLR 507 at 532 per Gleeson CJ and Gummow J; Sunshine Coast Broadcasters Pty Ltd v Australian Communications and Media Authority[2012] FCA 1205 at [124].
Furthermore, while the applicants’ second ground of review may be understood as indicating that the second applicant had been unaware of particular events that had occurred in Malaysia, the Tribunal adopted a position of hearing evidence from each of the applicants separately and then hearing evidence from them together.
It was not unreasonable for the Tribunal to take account of the evidence that the second applicant gave to the Tribunal. The second ground of review contained an embedded assumption that the first applicant’s wife was not entitled to express her own views for herself. It should not be ignored that the second applicant sought relief in her own right.
The Tribunal’s reasons record that where inconsistencies were identified in their evidence, they were invited to respond to those inconsistencies and that they took that opportunity. They also record that certain country information was put to the applicants, that they were invited to comment upon that information and that they did so.
Conclusion
As the Tribunal’s reasons disclose, the applicants are fluent in English, Malay and Chinese. Nonetheless, the applicants were self-represented and despite the first applicant’s level of education it may be assumed that they were unfamiliar with court processes: cf AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30, [44(g)]; cf Ngu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 21, [11]-[15] (Spender J, Branson and Stone JJ agreeing). I accept that there is an aura of pointlessness, unfairness and unreality, in asking, during the course of a hearing, that such a person should identify the jurisdictional error of which they complain: AMF15, supra (2016) 241 FCR 30, [44(e)], citing Shretha,v Migration Review Tribunal (2015) 229 FCR 301, [53] (Mansfield, Tracey and Mortimer JJ).
With those observations in mind, I have re-examined the Tribunal’s reasons; however, in doing so I adhere to the well settled proposition that the reasons of a Tribunal “are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Wu Shan Liang, supra (1996) 185 CLR 259, 272, 291; Pham v NRMA Insurance Ltd [2014] NSWCA 22, [16] (Macfarlan JA), [23], [28], [31] (Leeming JA agreeing generally), [36] (Tobias AJA).
The grounds of review advanced by the applicants might be understood as indicating a complaint that, before affirming the decision of the delegate, the Tribunal was obliged to forewarn the applicants that an adverse credibility finding was information that should have been provided if it was to form the reason or part of the reason for affirming the decision of the delegate to refuse them a protection visa: cf s 424A. However, the Tribunal’s disbelief of the applicants’ evidence by reason of internal inconsistencies, should not be characterised as constituting ‘information’ within the meaning of par 424(1)(a): SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, [18]; Plaintiff M47 / 2012 v Director General of Security (2012) 251 CLR 1, [413] (Kiefel J). It follows, in my view, that a complaint of this kind would not have afforded the applicants a ground of review. I do not discern from the Tribunal’s reasons in this case a basis upon which the applicants might otherwise have contended for jurisdictional error. The application in a case to set aside the order made on 15 March 2017 dismissing the application for judicial review should be dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 3 November 2017
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