AAJ17 v Minister for Immigration
[2017] FCCA 2297
•20 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAJ17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2297 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – no information is identified enlivening the obligation under s.424A of the Migration Act – the Tribunal complied with its statutory obligations in the conduct of the review – the Tribunal approached the review with an open mind reasonably capable of persuasion – no jurisdictional error identified – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 438, 476 |
| Applicant: | AAJ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 14 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 20 September 2017 |
| Date of Last Submission: | 20 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 20 September 2017 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondents: | Ms S Sangha Mills Oakley |
ORDERS
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 14 of 2017
| AAJ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 December 2016 affirming a decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Malaysia and her claims were assessed against that country. The applicant has travelled to Australia on three occasions as the holder of a Subclass 601 (Electronic Travel Authority) visa. The applicant first arrived in December 2013, then in December 2014, and then on 29 December 2015. The applicant’s most-recent visa allowed the applicant to remain in Australia until 29 March 2016.
It was not until 30 June 2016 that the applicant lodged her application for a protection visa. The applicant claimed to fear harm by reason of the fact that she and her husband owned a number of businesses and gangs and criminals cheated and stole from them which resulted in them owing money to loan sharks. The applicant claimed that threats of violence were made against her husband on 22 June 2006 and on 25 April 2008 her husband was abducted by four Malay Muslim men who demanded money which was paid. The applicant claimed that they continued to receive threats from two Chinese men who said they would destroy their restaurant unless they were paid.
The applicant’s husband came to Australia on 2 April 2010 to avoid harm. The applicant was harassed by gangsters after her husband departed Malaysia. The husband returned to Malaysia on 4 July 2010 but was again threatened and returned to Australia. The husband travelled back to Malaysia on 17 July 2010 because he was worried about the applicant, but was targeted by gangsters, and left again for Australia and applied for a student visa. The applicant claimed they owed a lot of money to a loan company and could not repay these debts and moved constantly between 2010 and 2013 to avoid loan sharks and gangsters. On 28 July 2016 a delegate refused the grant of a protection visa and found the applicant failed to meet the criteria under the Act.
The Tribunal’s decision
The applicant applied for review on 8 August 2016. By letter dated 7 October 2016, the applicant was invited to attend a hearing on 26 November 2016. The applicant appeared on that date to give evidence and present arguments and prior to the hearing, provided a further statement on 19 October 2016.
The Tribunal identified the background to the review application and set out the relevant law in relation to a protection visa. The Tribunal identified the applicant’s claims and evidence and made express reference to there being certificates purportedly issued under s.438(1)(a) of the Migration Act. The Tribunal made reference to the provision permitting the Minister to certify the disclosure would be contrary to public interest and the Tribunal found the certificates invalid because the reason stated was not a basis for public-interest immunity.
The Tribunal made reference to the printouts the subject of the certificate being from department databases and internal forms relating to the processing of the applicant’s application. The Tribunal found it was not necessary to put that information to the applicant, in accordance with s.424A of the Migration Act because the Tribunal did not consider that it constitutes in any sense a rejection, denial or undermining of the applicant’s claims and did not consider, therefore, that it would be the reason, or part of the reason for affirming the decision under review. The material the subject of the certificates has been tendered in evidence and cannot be said to be credible, relevant or significant.
The Tribunal summarised the applicant’s claims in relation to the alleged threats. The Tribunal identified concerns in relation to the credibility of the applicant and her answers being evasive and vague. The Tribunal found the applicant failed to provide a plausible explanation as to why gangsters would pursue her for three and a half years, yet never approach her. The Tribunal did not accept that gangsters and loan sharks, who threatened the applicant because they wanted the applicant’s husband to present himself, would never speak to or approach the applicant for three and a half years. The Tribunal also formed the view that the applicant’s evidence was evasive and vague because she had not been talking about events that have occurred, but had been making up claims.
The Tribunal referred to the applicant’s claims in relation to an alleged kidnapping. The Tribunal found the applicant’s accounts inconsistent with the applicant’s statement at the hearing, which was that the husband had been abducted between particular hours. The Tribunal noted when this was put to the applicant at the hearing, she stated she was not directly involved and just heard what he said to her. However, the Tribunal rejects this on the basis that her evidence at the hearing suggests that she was very much involved since she was allegedly called by her husband at 11:00pm and the vehicle that he was kept hostage in came to her place. The Tribunal found the changing of the nature of the evidence regarding the husband’s alleged kidnapping is such that the Tribunal concluded that it did not take place.
The Tribunal also took into account the applicant’s delay in seeking a protection visa for many years and rejected the applicant’s explanation for that delay. The Tribunal was of the view that the applicant had fabricated her claims in order to achieve a claim for protection. The Tribunal found the applicant was not a credible witness and did not accept that the applicant or her husband owned a company or that they attempted to borrow money from banks and failed and then borrowed money from a finance company or that the government officials revoked the licence after receiving customer complaints. The Tribunal did not accept that the financial company threatened to beat or kill the applicant’s husband or took the car that he bought.
Given the applicant’s lack of credibility, the Tribunal gave no weight to the police reports. The Tribunal did not accept the applicant has suffered any previous harm in Malaysia, nor that there is a real chance that she will suffer serious harm from loan sharks or gangsters or anyone else in the reasonably foreseeable future. The Tribunal did not accept that the applicant has a well-founded fear of being persecuted for one or more of the five refugee definition reasons if she returns to Malaysia now or in the reasonably foreseeable future. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Migration Act.
The Tribunal was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant be removed from Australia to Malaysia, there is a real risk the applicant would suffer significant harm. The Tribunal was not satisfied the applicant is a person in respect to whom Australia has protection obligations under s.36(2)(aa) of the Migration Act and affirmed the decision under review.
Before this Court
On 18 May 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions.
An amended application was filed identifying the following grounds:
1. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon her returns to Malaysia
2. The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.
Particular:
The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.
3.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.
4. The Tribunal has failed to investigate applicant's claim, specially the grounds of persecution in Malaysia. Therefore the Tribunal decision dated 9 December 2016 was effected by actual bias constituting judicial error.
At the commencement of the hearing, the Court explained to the applicant this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the amended application would be dismissed with costs.
The Court explained it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that she understood the nature of the hearing as explained by the Court.
The applicant’s submissions from the bar table
From the bar table, the applicant maintained that she was not satisfied with the decision, that she was fearful for her safety. The submissions of the applicant from the bar table do nothing more than invite this Court to engage in an impermissible merits review. This Court does not have power to revisit the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.
Consideration
Ground 1
In relation to ground 1, this seeks to cavil with the Tribunal’s adverse credibility findings. Those adverse credibility findings were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. The Tribunal correctly identified the relevant law and on the face of the Tribunal’s reasons, correctly applied the relevant law in relation to the applicant’s claims and evidence. It was a proper and relevant matter for the Tribunal to determine the applicant’s credit. No jurisdictional error is made out in ground 1.
Ground 2
In relation to ground 2, no information is identified enlivening the obligation under s.424A of the Migration Act. The documents the subject of the s.438 certificates, have no relevance to the applicant’s claim and were of no significance to the review being conducted by the Tribunal. No information was pointed to enlivening any obligation under s.424A of the Migration Act and accordingly, no jurisdictional error is made out by ground 2.
Ground 3
In relation to ground 3, the applicant in substance identified a disagreement with the adverse findings by the Tribunal and the ground does not identify any jurisdictional error. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. No jurisdictional error is made out by ground 3.
Ground 4
In relation to ground 4, the Tribunal was not the subject of any duty to investigate and on the face of the Tribunal’s reasons, the Tribunal correctly understood the applicant’s claims. The allegation of bias is an allegation unparticularised and unsupported. The adverse findings by the Tribunal are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. On the material before the Court, the Tribunal approached the review with an open mind reasonably capable of persuasion. No case of bias is made out. Ground 4 fails to make out any jurisdictional error.
Section 438 certificate
The first respondent, in accordance with its duty as a model litigant, has drawn the Court’s attention to the issue of a certificate under s.438 by the Department on 11 August 2016 and identified the material the subject of that certificate which has been tendered into evidence. The information the subject of the certificate is an Onshore Protection 866 processing checklist and does not identify any information that could be said to be credible, relevant or significant in relation to the review by the Tribunal of the applicant’s claims. There is nothing on the face of the material before the Court to identify that the Tribunal acted upon or took into account the certificate.
I am satisfied in the circumstances of the present case that the failure to disclose the documents the subject of the certificate, and to the extent that there was a failure to disclose the existence of the certificate do not give rise to any practical injustice. No jurisdictional error is made out by reason of the failure to disclose the certificate or the documents the subject of the certificate. The Tribunal’s reasons also support the conclusion that the documents the subject of the certificate were not credible, relevant or significant in the determination of the application for review.
Further, in the circumstances of the present case, I am satisfied that the disclosure of the certificate and the documents the subject of the certificate could not possibly have impacted on the outcome of the review. In these circumstances, if there was any error, relief would be refused on discretionary grounds.
For these reasons, the amended application is dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 6 October 2017
2
0
2