ALL18 v Minister for Home Affairs
[2019] FCA 755
•21 May 2019
FEDERAL COURT OF AUSTRALIA
ALL18 v Minister for Home Affairs [2019] FCA 755
Appeal from: ALL18 v Minister for Immigration & Anor [2018] FCCA 3492 File number: NSD 2309 of 2018 Judge: YATES J Date of judgment: 21 May 2019 Date of publication of reasons: 27 May 2019 Catchwords: MIGRATION – application for leave to appeal – refusal to grant protection visa – grounds of appeal assert jurisdictional error and bias without particulars – no error or bias identified – application dismissed Legislation: Federal Circuit Court Rules 2001, r 44.12(1)(a)
Federal Court of Australia Act 1976 (Cth), s 24(1A)
Migration Act 1958 (Cth), Pt 7 Div 4, ss 36(2)(a), 36(2)(aa)
Date of hearing: 21 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter Solicitor for the Respondents: Ms K Evans of Sparke Helmore ORDERS
NSD 2309 of 2018 BETWEEN: ALL18
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
YATES J
DATE OF ORDER:
21 MAY 2019
THE COURT ORDERS THAT:
1.The application for leave to appeal filed on 11 December 2018 be dismissed.
2.The applicant pay the first respondent's costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
YATES J:
On 29 November 2018, the Federal Circuit Court of Australia (the Federal Circuit Court) dismissed the applicant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001. The Tribunal’s decision affirmed a decision of a delegate of the first respondent (then the Minister for Immigration, now the Minister for Home Affairs) (the Minister) to refuse the applicant a protection visa.
The applicant wishes to appeal from the Federal Circuit Court’s judgment. However, as the judgment is interlocutory in character, leave to appeal is required: s 24(1A) of the Federal Court of Australia Act 1976 (Cth).
The application is supported by an affidavit made by the applicant on 5 December 2018. This affidavit simply annexes the reasons for judgment of the primary judge and the order of the Federal Circuit Court of 29 November 2018, the Tribunal’s Decision Record of 23 January 2018, and the applicant’s draft notice of appeal.
The draft notice of appeal contains two grounds, expressed as follows:
1. The decision has a judicial error
2.The decision was incorrect because the Administrative Appeals Tribunal member was biased against me.
The grounds are not supported by particulars. The error alleged in the first ground is not apparent. The allegation that the Tribunal member was biased was not raised in the application for judicial review.
The applicant is a citizen of Malaysia. He arrived in Australia on 20 February 2017 as the holder of an Electronic Travel Authority visa. On 17 May 2017, he 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 in supporting his family. On 21 August 2017, the delegate refused to grant the visa.
In his application for a protection visa, the applicant stated:
If I returned my country I will have serious financial problems because my family are poor and I can’t find a suitable job to earn money to pay my loan.
I came from a very poor family. My parents already passed away. And I as the older son of my family has to take care of my family. Daily expenses in my country is quite high. Prices of petrol, food and so many things keep on rising causing us to live in difficulty. I have tried to go to other part of the country but the condition is no better. Maybe this is due to political disorder in my country that causing the economy situation is not good. A friend has suggested me to go to this country Australia to try find some money to help me support my family and pay my loan. So I decided to leave my country and wish to find some ways to get some income here in Australia if I am granted a work right. I struggled to save some money so that I can come to Australia. I hope the authority of Australia can give me permission to stay in Australia and be able to find work to support my family and pay my loan in my country. I promise that I will not cause any trouble here.
On 10 September 2017, the applicant applied to the Tribunal to review the delegate’s decision. A hearing was conducted on 22 January 2018. On 23 January 2018, the Tribunal affirmed the decision under review.
In its Decision Record, the Tribunal recorded the following information provided by the applicant in respect of his work history in Malaysia:
7.In Malaysia he did many things, but his last job was in a hotel as a steward supervisor. He had worked in Sabah for three years and in another hotel for 2 and a half years.
8.The applicant stated he came to Australia because it was hard in Malaysia to find a job and even if you had one, it was hard to make money. He stated that his parents passed always [sic] in 2014 and he was their first child. He stated that he had other adult siblings, some of whom worked and some of them who did not. He stated that when his mother was sick, his father’s friend gave them money to cover her hospital expenses which the applicant was continuing to repay. He stated he thought he owed about $30 000 Malay or $10 000 AUD and his last payment was last week.
In its consideration of the applicant’s claims, the Tribunal said:
21.The Tribunal accepts the applicant comes from a poor background and needs to work in order to support himself, repay an outstanding debt and he desires to also help his adult siblings. However there is nothing untoward in his need to work and for many if not most people, this is also their reality. The Tribunal also notes that the applicant has previously worked for a long period in Malaysia and there is nothing in the applicant's past employment that suggests that he has or will be denied employment commensurate with his experience. The Tribunal is therefore not satisfied that the applicant on return to Malaysia now, or in the foreseeable future, faces a real chance of serious harm for reasons of his race, religion, nationality, membership of a particular social group or his political opinion.
On the basis of these findings, the Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) (the Act). Further, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act. The Tribunal said that it had some sympathy for the applicant, who it described as “a genuine young man eager to make his way in the world”.
The applicant’s application for judicial review in the Federal Circuit Court contained four grounds, expressed as follows:
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.
These grounds were not supported by particulars. The primary judge reasoned that, without particulars, these grounds could not succeed. In this connection, it is important to note the following matters recorded by the primary judge:
11.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.
12.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.
The primary judge found that, on the material before the Federal Circuit Court, the Tribunal gave due consideration to the applicant’s claims and evidence ([16]); the Tribunal had correctly set out the test in respect of the Convention and complementary protection criteria ([18]); and that there was no evidence that the Tribunal did not comply with its obligations under Pt 7 Div 4 of the Act to give the applicant a meaningful opportunity to give evidence and present arguments before the Tribunal ([19]). The primary judge concluded that the applicant was unable to demonstrate an arguable case of jurisdictional error by the Tribunal, and dismissed the application for judicial review accordingly.
At the hearing of the application for leave to appeal, I asked the applicant to identify the error referred to in Ground 1 of his draft notice of appeal. He responded: “I don’t know what to say”. I then asked him whether he was able to identify any error in the Federal Circuit Court judgment. Once again he said: “I don’t know what to say”. I also asked the applicant to explain how, he said, the Tribunal member had been biased against him. He gave the same answer that he had given to the previous two questions.
Ground 1 of the draft notice of appeal plainly refers to judicial error but, as I have said, does not identify that error. As the applicant is unable to identify any error, this ground has no prospects of success. Ground 2 does not suggest any error on the part of the Federal Circuit Court. It stands as a bald assertion of bias on the part of the Tribunal. However, the applicant could not elucidate why he says the Tribunal was biased. Having read and considered the Tribunal’s reasons, I am unable to detect any matter that would indicate bias. I am satisfied that Ground 2 is unfounded.
In light of those findings, I am satisfied that the proposed appeal is without merit and that, for this reason, the application for leave to appeal should be dismissed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate:
Dated: 27 May 2019
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