AIX15 v Minister for Immigration

[2016] FCCA 2841

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIX15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2841

Catchwords:
MIGRATION – Application for a protection visa – alleged family violence – whether the Tribunal’s failure to obtain oral evidence from a witness was legally unreasonable – principles of legal unreasonableness – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.426

Cases cited:

CZBH v Minister for Immigration and Border Protection [2014] FCA 1023
Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118

NAIS v the Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470

Applicant: AIX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 679 of 2015

Judgment of: Judge McNab

Hearing date: 26 September 2016

Date of Last Submission: 26 September 2016

Delivered at: Melbourne

Delivered on: 2 December 2016

REPRESENTATION

Counsel for the Applicant: Mr Guo of Counsel

Solicitors for the Applicant: Asylum Seeker Resource Centre

Counsel for the Respondents: Ms Lucas of Counsel

Solicitors for the Respondents: The Australian Government Solicitor

ORDERS

1. The applicant’s amended application filed on 13 September 2016 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 679 of 2015

AIX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Nature of the Application

1. By way of an amended application filed 13 September 2016, the applicant is seeking judicial review of a decision of the Refugee Review Tribunal (as it then was). The Tribunal affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Protection (Class XA) Visa (“the visa”). The applicant is seeking an order that the decision of the Tribunal be quashed and an issue of a

   
   

   writ of mandamus.

2. In the application, the applicant set out one ground of review of the Tribunal’s decision as follows (copied exactly):

   1. The Tribunal breached section 426 of the Migration Act by:

   a.    failing to have regard to the Applicant’s request that the Tribunal obtain oral evidence from Naree Lim; or alternatively

   b.    making a legally unreasonable decision not to obtain evidence from Ms Lim.

Background

1. The applicant is a citizen of Cambodia. She arrived in Australia on a tourist visa, lodging further tourist visas on 16 September 2010 and

   
   

   20 July 2011 both of which were refused. She applied for another tourist visa on 1 September 2011 which was granted on

   
   

   20 September 2011. She arrived in Australia on 31 October 2011. On

   
   

   31 January 2012, the applicant lodged a Condition 8503 waiver in order to gain a partner visa, but was refused. Subsequent to the expiry of her tourist visa, the applicant was granted a bridging visa on departure grounds. She subsequently lodged 2 further requests for a Condition 8503 waiver, both of which were refused.

2. On 30 March 2012 the applicant lodged an application for a protection visa which was refused by the delegate on 22 November 2012. On

   
   

   5 December 2012 the applicant applied to the Tribunal for a review of the delegate’s decision. On 14 May 2013, the applicant had a hearing before the Tribunal, at which a number of witnesses gave evidence including Ms Naree Lim (“Ms Lim”). The Tribunal adjourned the first hearing to allow the applicant time to provide a psychological report and invited the applicant to a further hearing on 13 February 2015.

3. Further to the provision of a psychological report, the applicant also submitted to the Tribunal further statutory declarations which included a statutory declaration of Ms Lim, submissions and country information to the Tribunal.

4. On 9 February 2015 the applicant’s representatives provided a further letter to the Tribunal enclosing the contact number for Ms Lim and a further statutory declaration of Ms Lim dated 3 February 2015.  

5. The hearing had been rescheduled by the Tribunal to the 13 February 2015 and the applicant’s representative was advised of this on

   
   

   2 February 2015. At the hearing on 13 February 2015, the Tribunal attempted to contact Ms Lim but was unable to do so.

6. On 3 March 2015, the Tribunal affirmed the decision of the delegate to refuse to grant the applicant the visa.

The Tribunal’s Decision

1. The respondent’s submissions accurately set out a summary of the Tribunal’s decision as follows (footnotes omitted):

   14.In its reasons, the Tribunal noted that, in making its decision, it had reviewed the documentary evidence before it, reviewed its detailed summary of the applicant’s first hearing and that it had held a second hearing with the applicant on 13 February 2015 in which the applicant was given an opportunity to give further evidence and present arguments on the issues arising in her case.

   15.In its reasons, the Tribunal referred to the evidence given by Ms Lim at the first hearing before the Tribunal. It noted that it found her evidence to be ‘vague and generalised’ and her evidence about the applicant’s family were ‘vague and undetailed’ and did not provide any details of her conversations with the applicant’s family on the phone apart from confirming that the applicant’s family had disowned her.

   16.The Tribunal stated that it had attempted to contact Ms Lim during the second hearing but was unable to and was therefore not in a position to verify her claims. It gave little weight to her evidence.

   17.Ultimately, based on serious credibility concerns that the Tribunal had with respect to the applicant’s evidence, it did not accept that the applicant was ever in a relationship with her claimed de facto, Sovann Leang, or that she left her family home in January 2010 to live with Mr Leang in a de facto relationship until July 2011. Given this finding and its concerns, the Tribunal did not accept that the applicant had ever faced violence at the hands of Mr Leang. Further, given that the applicant’s claims that her family had disowned her and wanted to harm her were directly linked to her alleged de facto relationship with Mr Leang, it did not accept her claims that her family had disowned and/or threatened to kill or harm her.

   18.The Tribunal further noted that the applicant’s conduct in Australia after her arrival, including her delay in lodging a protection visa application, also added to the Tribunal’s concerns. The Tribunal found that the applicant’s failure to raise her fears of harm on return to Cambodia during her previous dealings with the Department undermined her claims.

   19.The Tribunal wholly rejected the applicant’s claims to fear harm. It did not accept that she faced a real chance of serious harm at the hands of her former partner, her family, society or authorities in general due to having been in an abusive de facto relationship, her status as a separated/unmarried woman, due to her mental health, the general situation in Cambodia or for any other Convention ground. The Tribunal therefore found the applicant’s fear of persecution was not well-founded. The Tribunal did not accept that there was a real risk that the applicant would face significant harm for the same reasons.

Consideration

1. The applicant submits the Tribunal elected not to obtain evidence in the second Tribunal hearing from Ms Lim and thereby breached s.426 of the Migration Act 1958 (Cth)(“the Act”).

2. Section 426 of the Act provides:

   Applicant may request Tribunal to call witnesses

   (1)In the notice under section 425A, the Tribunal must notify the applicant:

   (a)that he or she is invited to appear before the Tribunal to give evidence; and

   (b)of the effect of subsection (2) of this section.

   (2)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

   (3)If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice.

3. It is submitted on behalf of the applicant that the applicant had made a request by the applicant’s migration agent to obtain evidence from

   
   

   Ms Lim at the second Tribunal hearing. That request having been made, the Tribunal was obliged to consider its discretion under s.426(3) as to whether or not to do so. The applicant points to correspondence from the applicant’s migration agent to the Tribunal dated 6 February 2016, where in response to a hearing invitation dated 2 February 2015 to the second hearing, the agent refers to various people “who may be able to assist the Tribunal”. Included in that list is Ms Lim with the following comment:

   1.6Naree Lim: Mrs Lim previously gave evidence at the hearing. The Review Applicant’s family friend – the review applicant calls her “aunty” who was from her birth village and knew of her family. Mrs Lim is a well-established family in Cambodian community. She and her husband have been involved in the local Cambodian communities in Melbourne…

   She will assist the Tribunal to confirm Mrs Champ’s situations including family relationship and Cambodian culture in the village.

4. The migration agent provided to the Tribunal evidence of Mrs Lim in the form of a statutory declaration sworn 3 February 2015.[1]

   [1] Court Book 178

5. Central to the applicant’s grounds before the court were claims that:

   a)the Tribunal had not received further evidence of Ms Lim; and

   b)that the attempt by the Tribunal to contact Ms Lim for the purposes of the second hearing were simply “going through the motions and therefore not a true exercise of the discretion as to whether or not to receive her evidence.”

6. At [177] – [178] the Tribunal made reference to the evidence of Ms Lim before the second hearing as follows:

   177.The Tribunal further notes that some of the above witnesses, namely Naree Lim and Phalla Torng, provided further evidence about the aggressive attitude of the applicant’s father…

   178.The Tribunal has considered the evidence of Ms Lim including her recent statutory declaration which states that she visited the applicant’s parents twice since the first hearing, confirming her previous evidence at the first Tribunal hearing that the applicant’s family have disowned her. Ms Lim’s evidence at the first hearing was, however, vague and generalised. As noted above, she claimed to be unaware of the applicant’s defacto relationship, until after the applicant’s most recent arrival in Australia. Her evidence about the applicant’s family was vague and undetailed; although she claimed that she travelled back to Cambodia, she only spoke to the applicant’s family on the phone and did not provide any details of that conversation apart from confirming that the applicant’s family had disowned her. The Tribunal attempted to contact Ms Lim during the second hearing but was unable to and therefore could not verify her claims of having spoken to the applicant’s parents during her return trips to Cambodia, or the details of what was said. While the Tribunal accepts that Ms Lim may wish to help the applicant out of her goodwill, in light of these factors as well as other serious concerns it has with other aspects of the applicant’s evidence, the Tribunal gives little weight to Ms Lim’s evidence.

7. In this matter, the Minister accepted that the discretion under s.426(3) had been enlivened following a request made by the applicant’s representatives pursuant to s.476(2) for the Tribunal to call Ms Lim as a witness.

8. The power to be exercised by the Tribunal under s.426(3) is to decide whether or not to obtain oral evidence or other evidence from the persons named in the applicant’s notice. The Tribunal is not required to obtain evidence from that person. The refusal to obtain the evidence from the nominated person must not be exercised capriciously, but must take into account matters such as the relevance and potential importance to the outcome of the review of the evidence that could be given by the nominated witness, the sufficiency of any written material that has already been given by a witness; and the length of time that would afford the applicant fair opportunity put his or her case before the Tribunal.[2]

   [2] Minister for Immigration & Multicultural & Indigenous Affairs v Maltsin [2005] FCAFC 118 at [38] where Kenny and Lander JJ. considered analogues of s.426(2) and (3)

9. The decision of the Tribunal indicates that the Tribunal did in fact have regard to the further evidence of the witness Ms Lim and specifically referred to the statutory declaration that had been filed for the purpose of the second hearing. Further, it sought to obtain the evidence from Ms Lim but was unable to contact her. In my view, the submission that the Tribunal was “going through the motions” is unsupported by the material referred to by the applicant before this court. For these reasons ground 1(a) of the applicant’s grounds of the application must be dismissed.

10. In relation to a submission to the effect that the Tribunal ought to have adjourned the hearing before it as a result of being unable to make contact with Ms Lim, I note that there is no evidence that the applicant requested that the Tribunal adjourn the hearing in order to make contact with Ms Lim, either at the hearing or following the second hearing.

11. The circumstances in the present case can be contrasted to that of CZBH v Minister for Immigration and Border Protection[3] per Rangiah J, where in that matter, the appellants’ solicitors gave notice to the Tribunal that the appellants wanted the Tribunal to obtain oral evidence from each of the fathers of the appellants. In that case, following the hearing, the appellants’ solicitors wrote to the principal member of the Tribunal enclosing a letter of complaint from the appellants about the conduct of the hearing and the failure on the part of the Tribunal to receive evidence from the fathers.[4] No such communications occurred following the hearing in this matter, and no request for an adjournment was made at the hearing.

    [3] [2014] FCA 1023

    [4] Ibid at [18]

12. In its outline of written submissions, the applicant referred to the delay before the first hearing in May 2013 and the second hearing in February 2015 and the subsequent decision delivered in March 2015. It was said that because of the “inordinate delay” between the hearings there was a risk that the decision maker was not able to properly assess and weigh Ms Lim’s evidence and this may give rise to jurisdictional error as the decision maker cannot properly assess the evidence.[5]

    [5] NAIS v the Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at [10] Gleeson CJ [106] Kirby J, [169] – [172] Callinan and Heydon JJ

13. It was submitted by the applicant that the Tribunal makes no reference in its reasons to contemporaneous notes and tape recordings of the earlier evidence given by Ms Lim. It was also submitted that any difficulties in assessing Ms Lim’s evidence caused by the 13 month delay could have been cured by taking further evidence from her as the applicant had requested. Whilst not expressly stated as such, I assume that this is said to form the basis of a jurisdictional error on the part of the Tribunal.

14. In my view, this ground cannot succeed on the basis that the Tribunal noted that it reviewed the documentary evidence before it, had reviewed its detailed summary of the first hearing before reaching its decision.[6] Further, the transcript of the hearing annexed to the affidavit of Ms Jackson sworn 16 September 2016, shows the Tribunal listened to the evidence that Ms Lim gave at the first hearing prior to the commencement of the second hearing.

    [6] Tribunal’s Reasons at [137].

15. In those circumstances, the fact of the delay between the two hearings does not establish any particular flaw in the process of arriving at the decision made by the Tribunal, in particular, its decision in relation to how it treated the evidence of Ms Lim. In my view, the grounds which are relied on by the applicant must fail.

16. In these circumstances, I order that the applicant’s amended application filed on 13 September 2016 be dismissed and the applicant pay the first respondents costs fixed in the sum of $7,206.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 2 December 2016