Ajn16 v Minister for Immigration and Border Protection
[2018] FCA 176
•27 February 2018
FEDERAL COURT OF AUSTRALIA
AJN16 v Minister for Immigration and Border Protection [2018] FCA 176
Appeal from: AJN16 v Minister for Immigration & Anor [2017] FCCA 2061 File number(s): VID 944 of 2017 Judge(s): DERRINGTON J Date of judgment: 27 February 2018 Catchwords: MIGRATION – Appeal from decision of Federal Circuit Court of Australia dismissing application for judicial review of a decision of the AAT – Whether the AAT misapplied Complimentary Protection criterion provisions of the Migration Act and regulations – no error made Legislation: Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Rawsthorne v Minister for Immigration and Citizenship (2013) 140 ALD 524
Date of hearing: 27 February 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 39 Counsel for the Appellant: The appellant did not appear Solicitor for the Respondents: Mr A Cunynghame of Sparke Helmore Lawyers ORDERS
VID 944 of 2017 BETWEEN: AJN16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DERRINGTON J
DATE OF ORDER:
27 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent fixed in the amount of $4,363 being a lesser sum than that prescribed by Schedule 3, Part XV of the Rules of the Federal Court of Australia.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DERRINGTON J:
Introduction
This is an appeal from a decision of the Federal Circuit Court dated 14 August 2017 wherein that Court dismissed an application to review a decision of the Administrative Appeals Tribunal (the Tribunal) dated 4 February 2016. In its determination the Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) to refuse the appellant a Protection (Class XA) visa (the Visa).
The grounds of appeal to this Court are somewhat confused in that they tend to conflate the decision of the Tribunal with that of the Federal Circuit Court. Doing the best that I can, I apprehend that the grounds are:
(1)That the Tribunal or the Federal Circuit Court erred and fell into jurisdictional error by incorrectly applying s 36(2)(aa) of the Migration Act 1958 (Cth) to the appellant’s situation and risk of harm in Malaysia.
(2)That further errors of law and jurisdictional error occurred by reason of the Tribunal (and/or the Federal Circuit Court) misapplying the Migration Regulations and the Migration Act by:
(a)Failing to consider the evidence in totality and cumulatively;
(b)Failing to properly and/or adequately investigate and assess the claims of the appellant as to his situation in Malaysia;
(c)Failing to give proper consideration and weight to the evidence presented by the appellant;
(d)Displaying signs of bias against the appellant.
Perhaps the best way to approach the matter is to assume that the appellant asserts that the errors of law or jurisdictional errors were made by the Tribunal, and that the Federal Circuit Court erred in failing to detect the errors.
The appellant’s non-appearance at the hearing
On 26 February 2018 my Chambers received an email from the solicitors for the Minister indicating that they had received email correspondence from the appellant and enclosing a copy of that communication. The appellant’s email asserted that he was feeling sick and was suffering from diarrhoea such that he would not be able to attend Court at the hearing today. My Associate wrote back to the Minister’s solicitors and copying the same to the appellant indicating that an adjournment could not be considered in the absence of some medical evidence. On the morning of 27 February 2018 my Associate wrote to the parties advising that the appellant would be able to attend the hearing by telephone if necessary and that he would be contacted by a Registry official to make that arrangement if necessary. He was also advised by the Registry by an email that he might attend at the hearing today by telephone. The staff of the Registry of the Federal Court have attempted to contact the appellant on numerous occasions today on the telephone number which he had provided to the Court. I have been informed that he has not been able to be contacted on that number and has not responded to those attempts.
The matter was called on for hearing at 2.15pm on 27 February 2018 being the time at which it was listed and which had been notified to the parties. The Court Officer also called the matter three times outside the door of the Court but the appellant did not appear.
Whilst I was initially minded to dismiss the matter immediately under r 36.75 of the Federal Court Rules without further consideration, I subsequently determined that it was appropriate that I record in writing the more substantive reasons as to why the appeal could not succeed.
Background
The appellant, a citizen of Malaysia, arrived in Australia as the holder of an Electronic Travel Authority Visa on 1 March 2014. On 30 April 2014 he applied for the Visa.
Before the delegate the appellant claimed that he feared harm on his return to Malaysia because his brother-in-law had threatened him and demanded that he repay a loan which had been made to the appellant’s brother. He claims that his brother-in-law further says that if he does not repay the loan he must divorce his wife. He further says that his brother-in-law has significant political and “gang” connections and that he fears harm from those persons. He also claims that as a result of his failure to repay the loan to his brother-in-law, his home had been broken into, that people came to his home and assaulted him and took his car and a bike whilst demanding the money he owed. He says he provided a report to the police who did not adequately respond to his complaint. He further asserts that his father-in-law was friendly to him and sought to assist him but that the father-in-law was killed after being hit by a car. He suspected that this was related to the father-in-law’s attempt to assist him. He also said that his father-in-law approached an influential gang member to assist him, in his dispute with his brother-in-law, but that gang leader was later killed. It seems to be suggested that this was somehow related to his dispute with his brother-in-law.
On 18 November 2014, the Minister’s delegate refused to grant the appellant the Visa. As a result he applied to the Tribunal and, when doing so, supplied the Tribunal with a police report and photos which allegedly supported his claim. A written submission was also provided.
The appellant was invited to a hearing before the Tribunal which he attended on 21 January 2016. At that hearing he provided further material to the Tribunal including oral evidence and additional documents.
On 4 February 2016, the Tribunal made its determination and affirmed the decision of the delegate not to grant the appellant the visa.
The Tribunal’s decision
The Tribunal prepared a comprehensive written decision in relation to the appellant’s claims. In the summary, it determined that the appellant was not a credible witness and that much of his story had been concocted and contrived. This was particularly so in relation to any potential threats of harm to him or his property.
The Tribunal concluded that there were no Convention Grounds which would support the appellant’s application for a visa. It put to the appellant that there were no Convention Grounds supporting his application and he did not demur from that proposition. It does not now appear that there is any dispute that the applicant is not entitled to the Visa based on a Convention Ground.
The Notice of Appeal focuses upon whether or not the appellant satisfied the Complementary Protection criteria; namely that as a necessary and foreseeable consequence of him being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm (see s 36(2)(aa) of the Migration Act 1958 (Cth)).
In this respect, before the Tribunal the appellant asserted that his brother-in-law had a business partner who had significant political and gang connections and was capable of causing him harm. This allegation had not been raised by the appellant prior to the Tribunal hearing. The Tribunal considered this claim but disbelieved it on the basis that if such a business partner did in fact exist, their existence would have been raised prior to the hearing before the Tribunal. It found that no such business partner, who might use political influence or friendly gangs to intimidate or harm the appellant, existed. The Tribunal found that the appellant had fabricated this claim and that affected his credibility.
The Tribunal also rejected, as a concoction, the suggestion that the appellant’s father-in-law had approached another significant gang leader to assist the appellant in his dispute with his brother-in-law. In doing so the Tribunal rejected the suggestion that this gang leader’s death had any relevance to the appellant’s circumstances. That was particularly so given that he was killed six months after the appellant left Malaysia and a substantial distance from the appellant’s home. It concluded that there was no political or gang involvement in the matters related to the appellant.
Further, the Tribunal determined that the appellant had contrived the story to the effect that his car and bike had been stolen as a result of him owing money to his brother-in-law. It also found that it was implausible that the police would act in the manner asserted by him if, in fact, the crimes had occurred and they had been reported. Similarly it rejected as being implausible his claim that his house had been broken into as a result of him owing money to his brother-in-law. To the extent the break-in had occurred, the Tribunal concluded that it was a random criminal act.
The Tribunal also expressed misgivings as to the inability of the appellant to provide any record or documents relating to the alleged loan provided by his brother-in-law and considered implausible his explanations as to his inability to obtain such material. It further found that the appellant’s claims about the actions of his brother-in-law were difficult to accept. There were numerous inconsistencies in the scenario described by the appellant.
Overall, the Tribunal did not accept that any financial dispute between the appellant and his brother-in-law had led to threats of harm against him. It also did not accept that there was a demand by his brother-in-law for him to separate from his wife. It concluded that the appellant did not have a real risk of significant harm from his brother-in-law or his brother-in-law’s friends or gang members associated with the brother-in-law.
Consequently, the Tribunal found that the appellant did not meet the criteria for the Visa under s 36(2)(a) and (aa) of the Act. It affirmed the decision of the delegate.
The decision of the Federal Circuit Court
The application for review of the Tribunal’s decision was heard by the Federal Circuit Court on 14 August 2017. It was dismissed and the learned judge gave ex tempore reasons.
The grounds of the application before the Federal Circuit Court were somewhat difficult to follow and, save for the first ground, they seemed to seek merits review.
Ground one appeared to be an allegation that the Tribunal had failed to take into consideration certain material which the appellant had put before it. That included a police report provided in support of the claim of a break-in at the family’s home and reports that a gang member had been killed. The learned judge dealt with this application by noting that the Tribunal, on the face of its reasons, considered all of the material put before it by the appellant and that its findings in relation to that material were reasonably open. Indeed, the Tribunal dealt with the material advanced by the appellant including the various reports at some length.
The second ground before the Federal Circuit Court seemed to suggest that the Tribunal had wrongly decided against the appellant and the evidence he gave. As the primary judge said, this complaint did no more than raise a ground of merits review. Moreover the Tribunal was entitled to test the veracity of the appellant’s claim for protection by questioning him and it was not required to accept his claims or the evidence which he gave. The Tribunal ultimately was not satisfied of the appellant’s claims or that he faced the risk of significant harm based on any identified and credible concerns. This second ground was also rejected by the primary judge.
The third ground similarly appeared to be one of merits review. It seemingly involved an assertion that the Tribunal did not take seriously the appellant’s claim that he could not return to Malaysia to attend his father-in-law’s funeral. As the judge below identified, the Tribunal comprehensively dealt with the appellant’s claim to a fear of harm upon his returning to Malaysia and it did not accept the underlying premises of that claim. The Tribunal did take into account, contrary to the appellant’s claim, that the appellant’s wife would not return to Malaysia because her brother would be at the funeral.
The learned Federal Circuit Court judge found that the Tribunal had dealt comprehensively with the appellant’s claims and put all matters to the appellant with which it had difficulty and considered his response. Her Honour noted that all of the findings were open to the Tribunal.
The appeal to this Court
The grounds of appeal to this Court have been identified above. Unfortunately, despite having the opportunity to do so, the appellant has not provided any written submissions in support of the grounds of appeal.
As has been pointed out by the respondent in its written submissions, although an appeal to the Federal Court from the Federal Circuit Court is an appeal by way of rehearing, it is necessary for the appellant to demonstrate some error in the judgment at first-instance. In Rawsthorne v Minister for Immigration and Citizenship (2013) 140 ALD 524, 529 [27] this Court recognised that “an appeal by way of rehearing… does not mean that it is an opportunity to revisit the decision of the tribunal. Save for exceptional cases, the task of the court on an appeal by way of rehearing is to correct error on the part of the primary judge”. The Minister submits, and not without some force, that the appellant has not demonstrated any error in the decision of the Federal Circuit Court.
The Minister also submits that the grounds raised on appeal were not raised before the Court below and as such, leave is required. In the circumstances of the case, it is not necessary to determine on this appeal whether that requirement is necessary.
The first ground
This first ground advanced by the appellant raises what is alleged to be the incorrect application of s 36(2)(aa) of the Migration Act to the appellant’s situation of harm in Malaysia. In the absence of any coherent submissions from the appellant it is difficult to identify the foundations of this ground. However it can be noted that the Tribunal correctly set out the statutory test for the Complementary Protection criterion as provided for in s 36(2)(aa) and identified that it was appropriate to consider its application given that the appellant was not able to identify a Convention Ground to support his application. The Tribunal carefully considered the application of s 36(2)(aa) and, indeed, the bulk of its reasons concerned whether or not the appellant faced a risk of significant harm from his brother-in-law arising out of money which he owed. Relevantly, the Tribunal made findings in relation to the application of the statutory test contained in s 36(2)(aa) at [44], [55], [57]-[58] and [63]-[64] of the its reasons.
There is no foundation for the suggestion that the Tribunal did not correctly apply s 36(2)(aa) of the Act.
Further, the appellant does not raise any identifiable error in the reasons of the primary judge in this respect. To the extent to which this ground was applicable to the grounds considered by the primary judge, his Honour found that the Tribunal’s findings were open to it on the evidence before it.
It follows that the first ground does not involve any jurisdictional error by the Tribunal or error by the primary judge.
The second ground
In relation to the second ground of appeal, the appellant has not particularised any purported legal or factual errors which were allegedly committed by the Tribunal in its consideration of the matter. Nor has he identified any error in the primary judge’s dealings with the Tribunal’s reasons. Importantly, it was not contended before the primary judge that the Tribunal had failed in any way to consider the evidence, assess the appellant’s claims or give proper consideration and weight to the appellant’s evidence. Indeed, the contrary is true. The Tribunal considered at length the evidence of the appellant’s claims and the materials which he provided. Ultimately, it concluded that his claims were concocted or contrived and that he was not credible. There is nothing in the Tribunal’s reasons which suggest that any failure on its part to deal with the case before it in a proper manner. The findings which the Tribunal made were open to it and, to the extent to which the complaint relates to the weight given to the evidence, it is well established that that issue is the province of the Tribunal alone.
The primary judge properly considered whether or not the Tribunal had performed its statutory task and she accepted that it did so. Her Honour noted that the Tribunal was ultimately not satisfied that the appellant’s claims were made out. To the extent to which this issue was raised before the primary judge no error has been shown to exist in her Honour’s reasons.
The allegation of bias by the learned primary judge is a serious one. It is an allegation which must be distinctly and firmly made and, more importantly, clearly proven (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531). In this case, the appellant has been unable to articulate any basis on which the learned primary judge exhibited the slightest hint of bias towards him. As the Minister submits, the transcript of the hearing before the learned primary judge was not put in evidence. No affidavit was filed which might support the allegation either. Moreover the learned primary judge’s reasons are comprehensive and clear. They articulate the claims made by the appellant and show that her Honour undertook a careful consideration of the Tribunal’s decision. There is nothing in the decision of the primary judge to indicate that a fair minded and informed person might reasonably apprehend that she did not bring an impartial mind to bear on her decision. To the extent to which the allegation of bias also relates to the Tribunal, the same conclusion can be reached. Its consideration of the matter was full and complete. No clearly articulated ground has been advanced as to why it ought to be concluded that the Tribunal was bias.
Conclusion
From the above it is apparent that none of the grounds advanced by the appellant can be made out. That being so and, given that he has not appeared when the matter was called on for hearing, the appeal ought to be dismissed.
The Minister seeks the costs of the appeal. There is no reason why costs should not follow the event. The Minister seeks an order for costs in the fixed amount of $4,363 being a lesser sum than that prescribed by Schedule 3, Part XV of the Rules of the Federal Court of Australia. No reason arises as to why an order for costs in that amount should not be made.
For these reasons the appeal ought to be dismissed with costs in the amount of $4,363.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington. Associate:
Dated: 27 February 2018
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