AAV18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 972
Federal Circuit and Family Court of Australia
(DIVISION 2)
AAV18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 972
File number(s): MLG 16 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 14 November 2022 Catchwords: MIGRATION - weight given to independent country information – whether Tribunal failed to provide its own evidence to applicant – costs where matter initially intended for ‘show cause’ hearing which is no longer available since repeal of r 44.12 of the Federal Circuit Court Rules Legislation: Migration Act 1958 (Cth) ss 5J, 36, 422B, 424A, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.02
Federal Circuit Court Rules 2001 (Cth) r 44.12
Federal Court Rules 2011 (Cth) r 36.03
Cases cited: Minister for Immigration and Multicultural Affairs v Bhardwaj (2000) 99 FCR 251
NAHI v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1169
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of hearing: 14 November 2022 Place: Sydney The Applicant: In person Solicitor for the Respondents: Mr E Taylor of Mills Oakley ORDERS
MLG 16 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AAV18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
14 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application filed on 3 January 2018 is dismissed.
2.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $4,500.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed on 3 January 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 21 December 2017 affirming a decision of the delegate of the first respondent (delegate) to not grant the applicant a Protection (subclass 866) Visa.
The following summary and background to the matter is derived from the submissions of the first respondent, but does not appear to be in dispute.
The applicant is a male citizen of Malaysia who arrived in Australia on 26 February 2016 as the holder of an Electronic Travel Authority (Subclass 601) visa (CB 42).
On 16 May 2016, the applicant applied for a Protection visa (CB 1 to 37). In summary, the applicant claimed (CB 30 to 32):
(a)he felt “unsafe and threatened” in Malaysia because he had become an informant to local authorities about a “drug organisation” and they had discovered he was acting as an informant;
(b)the organisation was looking for him and had threatened him. On one occasion they “hit him by car” and the members of the organisation tried to stop him, but he was able to run away;
(c)he did not seek help in Malaysia as the criminal organisation was powerful and he would be dealing with corrupt police officers;
(d)there was no place for him to hide or seek help because Malaysia is a small country and the police are corrupt and easily bribed; and
(e)he would be found by the criminal organisation and tortured to death if he returned to Malaysia.
On 24 November 2016, the delegate refused to grant the applicant a Protection visa (CB 42 to 55). On the basis of an assessment of country information about law enforcement and the judicial system in Malaysia, the delegate did not accept that the applicant faced a real chance of serious or significant harm from a “drug organisation” in Malaysia because he would be able avail himself of effective protection measures from the Malaysian authorities for any threats made.
The Tribunal’s decision
On 26 November 2016, the applicant applied to the Tribunal for review of the delegate’s decision (CB 56 to 57).
On 8 November 2017, the applicant was invited to attend a hearing before the Tribunal on 12 December 2017 (CB 79 to 80), in which he participated with the assistance of a Malay interpreter (CB 86 to 89).
On 21 December 2017, the Tribunal affirmed the delegate’s decision (CB 93 to 102).
On the basis of country information and the applicant’s “reasonably specific” evidence at the hearing about the People’s Volunteer Corps (RELA) in his home area, the Tribunal accepted that the RELA operated in his community using local volunteers to maintain local security (CB 96 to 97 at [18] to [20]). The Tribunal also accepted that the applicant and other members of the community, including RELA members, sat together in a local coffee shop and discussed issues affecting their village (CB 97 to [21]), but found the applicant’s evidence that he was identified as an informant because he was “more vocal” than other villagers was “vague, limited and unconvincing” (CB 97 to [22]). The Tribunal was not satisfied there was any evidence which indicated the applicant would be singled out as a drug informer when others in the village, such as RELA members, were not and it found the claim lacked credibility (CB 97 to 98 at [22] to [23]).
The Tribunal also found it “difficult to believe” that, despite the claimed openness of discussions the applicant took part in with RELA members about drug related activity, the drug organisation only identified the applicant as an opponent after these discussions had been taking place for over twelve months (CB 98 at [24]).
The Tribunal found the applicant’s claim that he was targeted by “hired killers” from the drug organisation when hit by a car while riding his bike through his village was “very vague and purely speculative” in circumstances where no words or threats were communicated by the people in the car and the applicant’s claim was based purely on him not recognising the car involved. The Tribunal was not satisfied as to the applicant’s credibility in regard to that claim (CB 98 at [25]). The Tribunal also found the applicant’s claim to have not reported the incident, or to seek assistance from the authorities because the police were subject to bribery and were themselves involved in the drug trade, to be inconsistent with DFAT country information which stated that the Royal Malaysian Police were a “professional and effective police force”. On this basis, the Tribunal found that it would have expected the applicant to have sought the assistance of the police or make a report to RELA if he had in fact feared for his life and that his explanation for not having done so was “vague and unconvincing” (CB 98 to [26]).
Having considered the applicant’s claims cumulatively, the Tribunal was not satisfied as to the applicant’s general credibility (CB 98 at [27]). As a consequence, the Tribunal did not accept that:
(a)the applicant gained a profile as RELA informant against drug activities;
(b)the applicant was singled out in the community by anyone or any group as an informer;
(c)hired killers associated with a drug group tried to hit the applicant with their car when he was riding his bike in the village;
(d)the applicant did not seek help from authorities in Malaysia because crime organisations controlled everything, or because there were corruption issues in Malaysia and that the applicant would be dealing with corrupt police officers; or
(e)that the applicant came to Australia to escape harm from a drug group (CB 98 to 99 at [27]).
The Tribunal did not accept that the applicant would be tortured, killed or harmed in any other way by people connected to the drug trade if he returned to Malaysia (CB 99 to [28]). Nor did it accept that he had a well-founded fear of persecution for a reason prescribed by s 5J(1) of the Act, or for any other reason (CB 99 at [28]). The Tribunal also did not accept the applicant would face a real risk of significant harm in Malaysia (CB 99 at [29]). Accordingly, the Tribunal found that the applicant did not meet the s 36(2)(a) or s 36(2)(aa) criteria, and affirmed the decision under review (CB 99 at [31] to [34]).
Application for judicial review
By his application to this Court the applicant seeks judicial review of the decision made under s 476 of the Migration Act 1958 (Cth) (Act) and raises the following two grounds of review:
1.The Tribunal afforded too much weight to the Country information failing to take into consideration the applicant’s circumstances, resulting in a decision affected by jurisdictional error.
2.The tribunal failed to provide me time to provide her with evidence of my position in the force as a result denying me natural justice and opportunity to prove my claims.
In addition, paragraph [4] of the applicant’s Affidavit made on 29 December 2017, is a statement I have taken to constitute a third ground of review:
I believe that the Administrative Appeals Tribunal in their decision made errors in law in their capacity to review. I was refused based on credibility however the tribunal member did not allow me time to provide proof of my employment in the force and dismissed all of my claims.
On 3 October 2018, a Registrar of this Court made orders which included that the applicant file and serve any amended application 28 days before the hearing, which was initially listed before another Judge of this Court for a “show cause” hearing in August 2021 pursuant, to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Former Rules).
The matter was later transferred to the central migration docket before being brought into my docket in May 2022. On 11 August 2022, I made orders, inter alia, listing the matter for hearing before me on 14 November 2022, together with an additional grant of leave to the applicant to file an amended application and any evidence by 25 August 2022. The applicant did not avail himself of this opportunity, nor did he file any written submissions as ordered. The applicant appeared before me today, using the Microsoft Teams platform, because he is in Melbourne and the Court is sitting in Sydney. The connection at all times, appeared clear. The applicant was assisted by an interpreter in the Malay language who was present in the Courtroom in Sydney, and the Minister was represented by a solicitor. The parties and the Court did not have any difficulty understanding one another by virtue of any connection issue or for any other reason.
Given that the applicant has not availed himself of the opportunity to amend his application at any time, the grounds which fall for consideration are those in the originating application, together with the applicant’s Affidavit (see [15] above). In the absence of the applicant having filed written submissions, I had the grounds interpreted to him and he was given the opportunity to speak to each of them in turn.
By ground 1, it is alleged that the Tribunal erred by giving too much weight to country information and failing to consider the applicant’s circumstances. When asked what he wished to say about this ground, the applicant replied “nothing”. I sought to explore the ground with him further, and prompted him to explain whether there was any particular country information or a particular finding relevant to this ground. The applicant said he still had nothing to say.
The choice of country information is a matter for the Tribunal to determine. In particular, the weight to which the Tribunal gives that material, when balanced against other factors in evidence, is also a decision exclusively for the Tribunal: see NAHI v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1169.
It is also well-established that the Tribunal is not required to uncritically accept the evidence of the applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J. Given that the applicant did not particularise any country information or finding to give context and meaning to the ground, it is not made out. There was nothing to suggest that the Tribunal approached its use of country information in any way that gives rise to a jurisdictional error.
By ground 2, the applicant alleges that the Tribunal failed to provide him with “her evidence” of his position in the force, which I take to be a reference to RELA, and therefore denied him natural justice and an opportunity to prove his claims.
The second ground is somewhat difficult to understand. I gave the applicant an opportunity to make submissions in respect of it. The applicant said that he was just asking for protection from the Tribunal, and after that he appealed to this Court. Again, I sought to focus the applicant’s attention on what error it was that he was alleging the Tribunal made. The applicant said that there was “nothing”, but that he would like to be able to stay in Australia for his own protection.
To the extent that the applicant says that the Tribunal member was required to put to him “her evidence”, on the contrary, the Tribunal is not required to have rebutting evidence before it can decide not to accept an applicant’s claims: see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J. Much less was the Tribunal member required, beyond the obligations which exist in s 424A of the Act (read together with s 422B), to put any information to the applicant for comment. The s 424A obligation did not arise in the present case.
Further, if by this ground the applicant is seeking to suggest the Tribunal was under an obligation to put to him its findings, again, this is not required (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [48]). I am not satisfied that the second ground gives rise to a jurisdictional error, nor that the applicant was denied procedural fairness, as alleged, or at all.
The final ground which I had interpreted to the applicant is paragraph [4] of his Affidavit. I received that Affidavit as a submission, or, more technically, as raising an additional ground of review, and asked the first respondent’s solicitor to address it in his oral submissions.
The ground is, in a sense, a variation of ground 2 but makes specific reference to the Tribunal’s credibility findings, and also suggests that the applicant was not granted more time to provide proof of his employment. When asked to speak to this ground, the applicant said he did not have anything to say. I asked the applicant whether he had asked the Tribunal for extra time in which to provide material, or whether his Affidavit meant that he said that he simply wished the Tribunal had given him more time.
After some clarification and because the applicant said that he wanted “extra time”, it became clear this meant he wanted extra time to stay in Australia. The applicant also confirmed from the (virtual) Bar table that he had not asked the Tribunal for extra time to take any steps or provide any information.
In relation to this assertion which has been treated as an extra ground, the Minister made submissions to the effect that the suggestion that the applicant wished to provide more information proving his employment was factually at odds with the applicant’s evidence to the Tribunal that he was never a member of the RELA.
The applicant was said to have been on notice that credibility was an issue in the review before the Tribunal, by reason of the delegate’s decision which had also referred to what was said to be extremely limited information regarding his association with the RELA. The first respondent said that there was no material before the Court to indicate that the applicant had sought an opportunity to provide further information and that, to the contrary, the applicant had now confirmed that he expressly had not done so. In addition, the first respondent says that the applicant has not identified what additional material he would have provided, or, more specifically, how such specific information could have resulted in the Tribunal reaching a different decision.
I accept those submissions and, in particular, the latter submission regarding materiality, especially given the earlier observation that the applicant had not, in fact, claimed to have been an RELA member.
The Tribunal’s credibility findings demonstrate that it grappled thoroughly with the applicant’s claims and his evidence, and clearly gave reasons for why it was not satisfied. In this regard, I find that the Tribunal’s conclusions on credibility were open to it for the reasons that it gave, and that there is no suggestion the applicant was denied any opportunity to engage with the review in the sense identified in Minister for Immigration and Multicultural Affairs v Bhardwaj (2000) 99 FCR 251, or any suggestion that the Tribunal was asked to exercise its discretion to adjourn or enable the applicant further time to provide material, or that the factual circumstances of the case required that the Tribunal consider for itself whether or not it ought to exercise that discretion.
Accordingly, to the extent that [4] of the applicant’s Affidavit constitutes an additional ground, it does not give rise to a jurisdictional error. In all of those circumstances none of the grounds are made out and the decision of the Tribunal is free from jurisdictional error. That being so, the decision is a privative clause decision and must be dismissed.
Costs
Consequent upon my dismissal of the application, the Minister sought an order that the applicant pay costs in the amount of $4,500. When asked to address the issue of costs and quantum, the applicant asked when it was he was required to pay the amount by. I explained to the applicant that he would soon receive correspondence from the first respondent’s solicitors in relation to that issue, as well as options for time to pay in instalments and also as to the amount.
I am satisfied in this matter that an order for costs should be made, pursuant to the principle that costs follow the event.
I am further satisfied that the amount sought is reasonable, in particular, having regard to the fact that the matter was initially listed for the former show cause mechanism under the Court’s former rules which speaks, in part, to the complexity or otherwise of the matter and that such a hearing under r 44.12 of the Court’s Former Rules was treated as an interlocutory hearing for the purposes, inter alia, of the Court’s costs scale. With the advent of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) in September of 2021, r 44.12 of the Former Rules was repealed, such that this hearing was listed for a final hearing, the scale costs for which are in the vicinity of almost $8,000.
Accordingly, while the amount sought by the first respondent is slightly higher than the interlocutory scale amount, it is also considerably less than the amount to which the Minister would be entitled under the Court’s costs scale for a proceeding concluded at a final hearing. Accordingly, I am satisfied that costs should follow the event and that the amount sought is reasonable.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 18 November 2022
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