ACC16 v Minister for Immigration

[2016] FCCA 1801

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACC16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1801

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – show cause hearing – real risk test – whether the Tribunal misapplied the relevant law – whether the Tribunal denied the applicant procedural fairness – no arguable jurisdictional error identified – application dismissed pursuant to r.44.12.

Legislation:

Migration Act 1958 (Cth), ss.422B, 426A, 441C, 476

Federal Circuit Court Rules, r.44.12

Cases cited:
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118

AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383

Applicant: ACC16

First Respondent: MINISTER FOR IMMIGRATION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 51 of 2016

Judgment of: Judge Street

Hearing date: 15 July 2016

Date of Last Submission: 15 July 2016

Delivered at: Sydney

Delivered on: 15 July 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the First Respondent: Ms C Saunders
DLA Piper

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 51 of 2016

ACC16

Applicant

And

MINISTER FOR IMMIGRATION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 14 December 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a citizen of Malaysia and his claims were assessed against that country.

2. The applicant’s claim to fear harm in summary arises from him being a Buddhist who was persuaded by friends to become a Muslim, and was then converted back to Buddhism either formally or de facto.  The applicant fears harm from Muslims, police or Muslim members of the police, party organisations and also government authorities.

3. On 3 December 2014, the delegate refused to grant the applicant a visa, having found the applicant not to be a credible witness, and was not satisfied that the applicant had a well-founded fear of persecution. The delegate was not satisfied that there were reasonable grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk he will suffer harm.

4. The applicant applied for review on 16 December 2014. By email sent on 18 November 2015 the applicant was invited to attend a hearing on 7 December 2015.  That email was sent to the applicant’s email address as identified on the applicant’s application.  The applicant was also sent a response to hearing invitation.  There was no engagement in that process by the applicant.  The applicant failed to appear on the hearing date and the Tribunal records on two occasions having contacted the applicant on his mobile telephone number to remind him of the hearing.  The mobile telephone number identified is the same mobile telephone number as appears in the applicant’s application for review as well as in the process of this Court and on the original application for a visa. 

5. The Tribunal identified the applicant’s claims and evidence and recorded the communications sent to the applicant, including any SMS messages, and noted that there had been no contact by the applicant with the Tribunal to explain his failure to appear. The Tribunal’s decision was delivered seven days after the hearing date. In those circumstances the Tribunal recorded that pursuant to s.426A of the Act the Tribunal had decided to make a decision on the review without taking any further action to enable the applicant to appear before it. Relevantly, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution, and was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk the applicant will suffer significant harm. It was in those circumstances where the applicant had failed to appear that the Tribunal affirmed the decision of the delegate.

6. On 10 March 2016 a Registrar of the Court provided the applicant with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed. 

7. The grounds of the application are as follows:

   1. There exists Jurisdictional error.

   The Tribunal believes my fear is not well-founded. I was detained and terribly mistreated by Muslim members. My family also was harassed. Is it well-founded fear? I believe the Tribunal wrongly understands the law.

   2. There exists procedural error.

   Tribunal asked me to provide evidence. However, some evidence is unable to provide. How can I provide evidence that I was detained and mistreated by Islamic extremist? How can I ask them to be my witness? Thus, I believe my case is not treated in the fair way.

8. At the commencement of the hearing, the Court explained to the applicant that the matter was fixed for hearing for a show cause hearing under r.44.12 of the Federal Circuit Court Rules 2001. The court explained to the applicant that the Court had to determine whether the application disclosed an arguable case.  The Court explained that an arguable case required the Tribunal’s decision to be the subject of a reasonable argument that it was affected by legal error. The Court explained that the 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 deciding whether the Tribunal’s decision was lawful and whether the Tribunal’s decision was fair. 

9. The Court explained to the applicant that if satisfied that the applicant had an arguable case his matter would be fixed for hearing on another occasion.  The Court explained to the applicant that if not satisfied that the applicant had an arguable case his application would be dismissed.  The applicant confirmed that he understood what had been said by the Court.  The Court explained that it would have identified the evidence and would hear submissions from the applicant and then hear submissions from the first respondent and then hear submissions from the applicant in reply.  The applicant confirmed he understood what had been said by the Court. 

10. From the bar table the applicant said he had not received the correspondence and did not receive the SMS messages. The applicant also complained that he was not in a position to call anyone to prove his claim. 

11. In relation to ground 1 the Tribunal correctly identified the relevant law and identified the applicant’s claims and evidence. It was open to the Tribunal to proceed to determine the matter in accordance with s.426A of the Migration Act 1958 in the circumstances of the present case. The Tribunal’s decision to proceed to decide the matter cannot be said to lack an evident and intelligible justification, and was reasonable. Under s.441C of the Migration Act 1958, the applicant is taken to have received the email communication sent to him notifying him of the hearing date. 

12. I accept the first respondent’s submissions that this case is clearly distinguishable from that dealt with in AZAFB v Minister for Immigration and Border Protection [2015] FCA 1383 given that there was no engagement in response to the communication sent inviting the applicant to appear, the seven days’ delay after the intended hearing date before delivery of the Tribunal’s decision and the sending of the SMS messages to the applicant’s correct telephone number. The adverse finding by the Tribunal on material before it that the applicant’s fear was not well-founded was open. There is nothing on the face of the Tribunal’s decision to support the contention that the Tribunal wrongly understood the law. The bare assertion that a jurisdictional error exists does not make out any arguable case of jurisdictional error. Nothing said by the applicant from the bar table identified any arguable jurisdictional error. Ground 1 fails to make out any arguable jurisdictional error.

13. In relation to ground 2 it was a matter for the applicant to establish his claims. The cavilling by the applicant with the question of how he could prove his claims does not identify any jurisdictional error. 

14. I am satisfied that on the material before the Court the Tribunal complied with the statutory obligations, and that the applicant has not been the subject of any denial of procedural fairness under the statutory regime. In particular, the Court has taken into account s.422B of the Migration Act 1958.  Nothing in ground 2 identifies any arguable jurisdictional error. 

15. I take into account the principles and caution in Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. The existence of an arguable case is a low threshold. I am clearly satisfied that the application fails to disclose any arguable case. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules 2001. 

16. The application fails to disclose any arguable case of jurisdictional error. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 July 2016