Aik17 v Minister for Immigration
[2017] FCCA 2760
•13 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AIK17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2760 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 437, 438 |
| Cases cited: AVO15 v Minister for Immigration [2017] FCA 566 BXD15 v Minister for Immigration [2017] FCA 1209 CKG15 v Minister for Immigration & Anor [2017] FCCA 938 CQG15 v Minister for Immigration [2016] FCAFC 146 Minister for Immigration v Le [2007] FCA 1318 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 MZAFZ v Minister for Immigration [2016] FCA 1081 |
| Applicant: | AIK17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 233 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 13 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 13 November 2017 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms G Doyle of Sparke Helmore |
INTERLOCUTORY ORDERS
Order 10 made by Registrar Morgan on 1 June 2017 is amended by deleting “2019” and substituting “2017”.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 233 of 2017
| AIK17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 January 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 3 November 2017.
The applicant, a citizen of Malaysia and of Chinese ethnicity, arrived in Australia in April 2015, as the holder of a visitor visa. On 15 July 2015, the applicant lodged an application for a protection visa[1].
[1] Court Book (CB) 1
In a “personal statement” attached to his visa application[2], the applicant claimed to fear harm on the basis of his and his uncle’s involvement in protests in Tawau, where his uncle lived. The applicant claimed that whilst visiting his uncle in Tawau, on 14 February 2015, he and his uncle protested against the government in relation to environmental problems in the area relating to logging and the “Tawau Green Energy Project”. The applicant claimed that on 16 February 2015, the police arrested and detained the applicant’s uncle, who was tortured. The applicant was not caught at that time, but following the arrest of the protesters in March 2015, he fled Malaysia in April 2015.
[2] CB 36
On 22 March 2016, the delegate refused to grant the visa[3]. On 19 April 2016, the applicant applied to the Tribunal for review of the delegate’s decision[4]. The applicant attended a hearing before the Tribunal on 14 November 2016, and on 4 January 2017, the Tribunal affirmed the decision under review[5].
[3] CB 55
[4] CB 69
[5] CB 103
Tribunal decision
The Tribunal did not accept any of the applicant’s claims of past harm[6]. In reaching that conclusion, it identified various concerns with the applicant’s evidence. In particular, the Tribunal noted the following:
a)when asked why he feared harm in Malaysia, the applicant said that things were not fair, which the Tribunal considered to be so broad as to be fanciful[7];
b)the applicant gave evidence that neither he nor any members of his extended family were of interest to the Malaysian authorities[8]. The Tribunal also considered that the applicant’s having departed Malaysia on his own passport using legal means indicated that he was of no interest to the authorities[9];
c)the applicant demonstrated extremely limited knowledge in relation to his claimed participation in protests[10]. Nor did he know what the Tawau Green Energy Project was[11]. The Tribunal considered that this undermined the applicant’s evidence in his “personal statement” and his credibility generally[12]. The Tribunal was not satisfied that either the applicant or any family members had ever participated in protests[13];
d)the three month delay between the applicant’s arrival in Australia and the lodging of his protection visa was relevant to assessing the genuineness of his claims[14];
e)country information did not support the applicant’s claims regarding logging[15].
[6] At [28]
[7] At [29]
[8] At [10], [29] and [34]
[9] At [17]
[10] At [11] and [30]-[31]
[11] At [15] and [32]
[12] At [32]
[13] At [28] and [34]
[14] At [18] and [33]
[15] At [14]
Given the limited evidence, and the applicant’s lack of knowledge as to information contained in his personal statement, the Tribunal found the applicant not to be a credible witness[16]. For the reasons set out above, the Tribunal found that the applicant did not meet the criteria for the grant of the visa under s.36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Migration Act)[17].
[16] At [25]
[17] At [36] and [37]
The present proceedings
These proceedings began with a show cause hearing filed on 24 January 2017. The applicant continues to rely upon that application. There are four grounds in the application:
1.AAT officer asked me that was I working at the moment, and I answered that I was working in the factory. Later they asked me did I work when I just arrived in Australia, and I answered yes. I would like to explain further that I knew I did not have work permission when I arrived in Australia, so I just helped my friend and earned some pocket money. However, AAT officer did not give me any opportunity to explain. They thought I was not honest just because of my working for my friend to earn some pocket money. Although I told the truth, yet AAT officer doubted what I said, which was not reasonable seriously.
2.I have told AAT officer that I was not interested in the Malaysian authorities. What I meant was that I saw the serious corruption of Malaysian government, and I did not believe it would change its current situation, so I attended the anti-government activity. However, AAT officer thought although I was not interested in the Malaysian authorities, why I had to attend the anti-government activity. I have explained the reason that I was so disappointed with the Malaysian government. In addition, my friends and families were involved in it actually. However, AAT officer doubted what I said, and could not provide any evidence, so AAT did not understand and distorted the truth seriously.
3.AAT though if I came back to Malaysia, I could not be persecuted, but they could not give me any compelling reason. Malaysia is an unlawful government, and they discriminated Chinese Malaysians very much. We could not live in that country. Once I come back, I must be persecuted, and even to die. However, AAT officer doubted me very much, but they could not give me any reason.
4.AAT made refusal decision within 2 months, so I doubted that have they investigated the corruption of Malaysian government. AAT made the decision to my case so quick, so I doubted how they judged my case so rush and their work attitude without any carefulness, so their behavior is irresponsible.
(errors in original)
In addition to the applicant’s short affidavit filed with his application I have before me as evidence the court book filed on 26 June 2017. The applicant denied receipt of the court book, but I provided him with a copy for the purposes of today’s hearing and explained its contents to him. I do not think the documents in the court book would come as a surprise to the applicant, and I am satisfied that he has not been prejudiced by any late provision of it.
The Minister tendered a letter[18], being a letter dated 26 June 2017, in which the applicant was served with a copy of the court book. The letter went on to state:
This matter is listed for show cause before the Honourable Judge Driver on 13 November 2017 at 11am at the Federal Circuit Court of Australia, Terrace Tower, 80 William Street, Sydney. You are required to attend Court on this occasion.
[18] Exhibit R1
The letter went on to warn the applicant that non-attendance might lead to a dismissal of the application. While denying receipt of the letter, the applicant conceded that the address to which it was sent was his. I note that the letter was sent by express post.
I also received the affidavit of Ms Gabrielle Doyle, the Minister’s solicitor, made on 2 November 2017 and filed the following day. The letter annexes a certificate purportedly issued under s.438 of the Migration Act. The Minister’s solicitor handed up in court an envelope containing the documents purportedly covered by the certificate.
At the outset of the hearing the applicant raised an issue concerning the listing. The applicant drew to my attention the procedural orders made by a Registrar on 1 June 2017. Order 10 listed the matter for a show cause hearing on 13 November 2019 at 11.00am. I was not at that time and, indeed, am still not listing show cause hearings in 2019. The year referred to in the order was plainly an error, and I note that the applicant was reminded by letter recently by the Minister’s solicitors that the hearing was today. That letter was sent when the applicant was served with the Minister’s submissions. The applicant’s attendance today was in response to that letter.
The applicant told me from the bar table that he made no response to the letter other than to attend, but he objected to the hearing taking place today. I enquired of the applicant what prejudice he would suffer by having the hearing today rather than in 2019. He was initially nonplussed by the question, but when pressed by me agreed that he was concerned about being potentially deprived of two years stay in Australia. I noted that orders 2 and 3 made by the Registrar provided the applicant with the opportunity to file an amended application and additional evidence by 27 July 2017. He did not take up those opportunities and confirmed that he continues to rely on his show cause application as filed.
It is not apparent to me that the applicant has been prejudiced by the conduct of the hearing today, and I proceeded with the hearing.
I invited oral submissions from the applicant today, he having not provided any written submissions, but he declined to make any. I made a second invitation to the applicant following the presentation of the Minister’s submissions, but he again declined to make any submissions.
The applicant’s grounds of review do not point to any arguable case of jurisdictional error. They go to the merits of the Tribunal decision. The Minister’s submissions deal with those grounds. I agree with those submissions.
Grounds 1 to 3, in essence, attack the merits of the Tribunal’s decision. The applicant takes issue with the Tribunal’s questioning and disbelief of his claims, and seeks to further elaborate on his oral evidence to the Tribunal. These grounds invite impermissible merits review[19].The Tribunal was not obliged to uncritically accept the applicant’s claims and the weight to be given to those claims and evidence was a matter for the Tribunal as part of its fact-finding function[20]. The Tribunal made adverse credibility findings in this case, which were open to it on the material before it and for the reasons it gave (see above at [6]) [21].
[19] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
[20] Randhawa v Minister for Immigration (1994) 124 ALR 265 at 278; Wu Shan Liang (supra) at 281–282
[21] CQG15 v Minister for Immigration [2016] FCAFC 146 at [36]-[38]
In Ground 4, the applicant expresses disagreement with the two month timeframe in which the Tribunal made its decision. There is no substance to this complaint. The speed with which the Tribunal makes its decision is not, by itself, sufficient to support an inference that the Tribunal did not properly consider the applicant’s circumstances[22]. In any event, two months cannot be said to be an insufficient timeframe to enable the Tribunal to duly consider and determine the review application. The Tribunal’s decision reveals detailed consideration of the applicant’s claims and evidence, and provides cogent reasons for the Tribunal’s rejection of the applicant’s claims. Insofar as the applicant cavils with the Tribunal’s omission to “investigate” the Malaysian government, it was for the applicant to make out his case. The Tribunal was under no duty to make further inquiries beyond the material placed before it by the applicant[23].
[22] SZRNI v Minister for Immigration & Anor [2012] FMCA 965 at [28]; SZUZF v Minister for Immigration & Anor [2016] FCCA 2831 at [44]; see also SZORJ v Minister for Immigration [2011] FCA 251 at [51]
[23] Minister for Immigration v SGLB (2004) 207 ALR 12; cf Minister for Immigration v Le [2007] FCA 1318, SZJBA v Minister for Immigration [2007] FCA 1592
The only legal issue of potential substance in this case concerns a purported s.438 certificate. The Minister concedes that the certificate is invalid in that it is based on a claim that documents purportedly covered by it are internal working documents and “business affairs”. That assertion would not support a claim for public interest immunity in legal proceedings. I agree, however, with the Minister’s submissions that the documents purportedly covered by the certificate were of no consequence in the review by the Tribunal. There are two documents. The first is described as a disclosure decision checklist which, ironically, asserts on its face that there are no documents covered by either s.437 or s.438(1)(a) or s.438(1)(b). The second document is an identification test summary which confirms the applicant’s identity. The applicant’s identity was not in issue before the Tribunal.
I agree with the Minister’s submissions in relation to the certificate and the documents purportedly covered by it.
The certificate was issued by a delegate of the Minister purportedly under s.438 of the Migration Act on 26 April 2016[24]. The certificate relates to two documents, respectively entitled “Identification Test: Protection Visa Applicants” and “Disclosure Decision Checklist”.
[24] See CB 68 and the affidavit of Lauren Ashworth affirmed on 2 November 2017
Whilst there is no evidence to suggest that the Tribunal invited the applicant to comment on the certificate, the present case is distinguishable from Minister for Immigration v Singh[25] (Singh)[26] and MZAFZ v Minister for Immigration[27] (MZAFZ).
[25] (2016) 244 FCR 305
[26] The Minister unsuccessfully sought special leave to appeal from the Full Court’s decision: Minister for Immigration v Singh & Anor [2017] HCATrans 107
[27] [2016] FCA 1081
First, Singh does not stand for the proposition that every certificate issued pursuant to s.438 must be disclosed to the applicant[28].
[28] CKG15 v Minister for Immigration & Anor [2017] FCCA 938 (CKG15) at [99])
Secondly, the documents purportedly covered by the certificate lack any connection to the applicant’s claims and were, in that sense, of “no, or only passing contextual relevance to the review.”[29] In this light, and in the absence of any reference to the documents by the Tribunal in its decision record, it should be inferred that the documents were not considered by the Tribunal to be relevant to its consideration of the applicant’s claims[30]. Accordingly, as in CKG15, the Tribunal’s decision record in the present matter does not suggest that the Tribunal “acted on” the certificates[31]. It follows that the Tribunal did not fall into the error identified by Beach J in MZAFZ.
[29] AVO15 v Minister for Immigration [2017] FCA 566 at [87] - [89]
[30] BEG15 v Minister for Immigration & Anor [2016] FCCA 2778 at [65]
[31] See also BEG15 v Minister for Immigration & Anor [2016] FCCA 2778 at [65]; BIE15 v Minister for Immigration & Anor [2016] FCCA 2978 at [52]
Thirdly, unlike Singh, the Court in this case has before it the documents which were the subject of the non-disclosure certificate. This enables the Court to consider the documents and determine whether any practical injustice resulted from the certificates not having been disclosed, such that a denial of procedural fairness can be made out. It is apparent that the documents covered by the certificates could not have had any material impact on the Tribunal’s consideration of the issues on the review. Thus, no denial of procedural fairness resulted from any omission to disclose the existence of the certificates[32].
[32] BXD15 v Minister for Immigration [2017] FCA 1209 at [37]
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, therefore, order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth).
In consequence of the dismissal of the application the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed. The applicant claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 15 November 2017
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