All18 v Minister for Home Affairs

[2018] FCCA 3492

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALL18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3492

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), s.425

Cases cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Minister for Immigration v Lay Lat (2006) 151 FCR 214

Saeed v Minister for Immigration (2010) 241 CLR 252

VAS v Minister for Immigration [2002] FCAFC 350

Applicant: ALL18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 241 of 2018

Judgment of: Judge Driver

Hearing date: 29 November 2018

Delivered at: Sydney

Delivered on: 29 November 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms L Sanderson of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 241 of 2018

ALL18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 January 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 22 November 2018. 

2. The applicant, a citizen of Malaysia, arrived in Australia on 20 February 2017 as the holder of an Electronic Travel Authority visa.[1]  On 17 May 2017, the applicant applied for a protection visa on the basis that he had experienced financial difficulty in Malaysia and hoped to earn income in Australia to assist him in supporting his family. On 21 August 2017, the delegate refused to grant the visa.[2]

   [1] Court Book (CB) 55

   [2] CB 62-63

3. On 10 September 2017, the applicant applied to the Tribunal for review of the delegate’s decision.[3]  On 22 January 2018, the applicant appeared before the Tribunal.[4]  On 23 January 2018, the Tribunal affirmed the decision under review.[5]

   [3] CB 64-65

   [4] CB 76-77

   [5] CB  81-85

Applicant’s claims

1. The applicant broadly claimed that he was unable to return to Malaysia because he would have serious financial problems. The particulars of the applicant’s claims were set out in his protection visa application and may be summarised as follows:[6]

   a)he came from a “poor family” and when his parents passed away, he was required to take care of the family as the eldest son;

   b)daily expenses in Malaysia were “quite high” and the price of petrol and food kept rising, which caused him difficulty;

   c)he attempted to relocate elsewhere in Malaysia, but the conditions were no better;

   d)he would like to be granted work rights in Australia to earn an income because his friend suggested to him that he should come here to earn money to support his family and to repay his loan;

   e)if he returned to Malaysia, he would experience serious financial problems because his family was poor and he could not find a suitable job;

   f)the Malaysian authorities would not protect him.[7]

   [6] CB 32-36

   [7] The applicant did not explain from whom he required protection (CB 36)

Tribunal decision

1. The Tribunal was “impressed” by the applicant’s “openness at hearing as well as his desire to help his adult siblings”.[8]  The Tribunal accepted that the applicant came to Australia to find work.[9]  The Tribunal noted that the applicant had previously secured employment in Malaysia[10] and accepted that he came from a poor background and needed to work in order to support himself, repay outstanding debt and because of his desire to help his adult siblings.[11]

   [8] CB 84 at [18]

   [9] CB 84 at [19]

   [10] CB 84 at [19]

   [11] CB 84 at [21]

2. The Tribunal noted that the applicant had worked for a long period in Malaysia prior to coming to Australia, and that there was nothing in the applicant’s past employment that suggested that he had been, or would be, denied employment.[12]

   [12] CB 84 at [21], [25]

3. On the above bases, the Tribunal was not satisfied that the applicant, on return to Malaysia, would face a real chance of serious harm for a Convention reason.[13]  Nor was the Tribunal satisfied on the evidence before it that the applicant would face significant harm in Malaysia.[14] Having so found, the Tribunal affirmed the decision under review.[15]

   [13] CB 84 at [21]- [22]

   [14] CB 84 at [25]

   [15] CB 85 at [27]-[29]

The present proceedings

1. These proceedings began with a show cause application filed on 1 February 2018.  The applicant continues to rely upon that application.  The grounds in it are reproduced at [9] of the Minister’s submissions:

   1.     A Tribunal decision was made without proofs.

   2.     Decision has lawful errors.

   3.     Fair process was not given by Tribunal.

   4.     Without considering real facts decision was made.

   (errors in original)

2. The application is supported by a short affidavit filed with it which I received as a submission. 

3. I have before me as evidence the court book filed on 22 March 2018. 

4. I invited oral submissions from the applicant this morning.  He declined to make any.  I enquired whether he understood that in the absence of any submissions his application could be dismissed.  He said he understood.

5. In his submissions in reply, the applicant said that he had abided by the legal requirements on him and he would continue to do what he was required to do.  He indicated that if he was required to return home to Malaysia, he would do so.  I directed the applicant’s attention to the need for him to do something within the remaining period of his current bridging visa. 

6. The Minister’s submissions deal with the grounds of review advanced.  I agree with those submissions. 

7. Grounds 1 and 4 appear in substance to contend that the Tribunal:

   a)did not, or did not properly, consider the applicant’s claims or the evidence of those claims;

   b)made findings in the absence of evidence.

8. In the absence of particulars, these contentions cannot succeed.

9. In any event, the material before the Court indicates that the Tribunal gave due consideration to the applicant’s claims and evidence. The Tribunal accepted the applicant’s claims about his financial problems and his need to work to support himself and his family. However the Tribunal found there was nothing untoward in his need to work, noting that this was a reality for many, if not most people.[16]  The Tribunal also found that there was nothing in the applicant’s employment history to suggest that he had or would be denied employment commensurate with his experience.[17]  On the basis of the applicant’s own claims and evidence, the Tribunal was not satisfied that the applicant would, on return to Malaysia, face a real chance of serious harm for reason of his race, religion, nationality, membership of a particular social group or political opinion, or that the applicant would face significant harm for any reason.[18] 

   [16] CB 84 at [21]

   [17] CB 84 at [25]

   [18] CB 84 at [21], [25]

10. Insofar as the applicant contends that the Tribunal made findings without any evidence, an argument of “no evidence” can only be successfully made out where the applicant has demonstrated that there was no evidence at all before the Tribunal upon which its finding was based.[19] Accordingly, even in circumstances in which the evidence in support of a finding is “slight”, that will be sufficient to defeat an argument of no evidence.[20]  In the present case, the Tribunal’s findings relied on the applicant’s own evidence and were plainly open.  Grounds 1 and 4 do not raise an arguable case.

    [19] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356 per Mason CJ

    [20] VAS v Minister for Immigration [2002] FCAFC 350 at [18]-[19] per Gray, Moore and Weinberg JJ

11. Ground 2 is, on a generous reading, a bald assertion of legal error.  In its current form and without particulars, it is meaningless.  In any event, the Tribunal correctly set out the test in respect of the Convention and complementary protection criteria, and assessed the applicant’s claims against those criteria. The Tribunal’s reasons reveal no jurisdictional error.  Ground 2 cannot succeed.

12. Ground 3 appears to assert a denial of procedural fairness. Absent any particulars, this ground too lacks any prospect of success. There is no evidence before the Court, nor is there any indication in the Tribunal’s reasons, to suggest that the Tribunal did not comply with its obligations under Division 4 of Part 7 of the Migration Act 1958 (Cth) (Migration Act), which provides an exhaustive statement of the natural justice hearing rule in relation to the matters that it deals with.[21] The applicant was properly invited to attend a hearing pursuant to s.425 of the Migration Act, which he attended and gave evidence in support of his claims with the assistance of an interpreter.[22]  There is nothing to indicate that the applicant was not given a meaningful opportunity to give evidence and arguments before the Tribunal.

    [21] Minister for Immigration v Lay Lat (2006) 151 FCR 214; Saeed v Minister for Immigration (2010) 241 CLR 252

    [22] CB 76

13. The applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.

14. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

15. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court Rules as they applied at the time the application was filed.  The applicant did not wish to be heard on costs.

16. 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 $3,667.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 3 December 2018