ALP17 v Minister for Immigration

[2017] FCCA 1803

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALP17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1803

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Constitutional writ – adjournment application refused – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 476

Applicant: ALP17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 322 of 2017

Judgment of: Judge Street

Hearing date: 2 August 2017

Date of Last Submission: 2 August 2017

Delivered at: Sydney

Delivered on: 2 August 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms E Warner Knight
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 322 of 2017

ALP17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 6 January 2017, affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Malaysia, and his claims were assessed against that country. The applicant arrived in Australia on 16 June 2015, on a Subclass 601 Electronic Travel Authority visa. That visa ceased on 15 September 2015. It was on 15 September 2015 that the applicant applied for protection. On 21 January 2016, the delegate refused to grant the applicant a protection visa, and found the applicant failed to meet the criteria under the Act for the grant of a visa.

Review by Tribunal

1. The applicant applied for review on 20 February 2016. By letter dated 12 August 2016, the applicant was invited to attend a hearing before the Tribunal on 7 September 2016. The applicant attended on that date, to give evidence and present arguments.

2. The applicant claimed to have had a dispute with a contractor and to have gone to the police and had the police side with the contractor, and to have been detained by the police. The applicant also asserted that he obtained money from loan sharks and was deeply in debt. The applicant feared to return to Malaysia because of the loan sharks and because of discrimination against Chinese in Malaysia.

3. The Tribunal identified the background to the application and set out the relevant law. The Tribunal set out the applicant’s claims and evidence. The Tribunal found the applicant to be an unsatisfactory witness at the hearing. The Tribunal identified reasons in support of its adverse credibility findings that there is nothing to indicate that the applicant would be at risk of harm if he were to return to Malaysia. The Tribunal was not satisfied as to the credibility of the applicant’s account of his experiences in Malaysia. The Tribunal was not satisfied that because of his Chinese ethnicity, the applicant was forced to deal with a Malay contractor in order to obtain work, that this person underpaid him for work he performed on a construction project in 2015, or that he suffered physical harm when he tried to recover the amount owing to him.

4. The Tribunal was not satisfied that the applicant sought the assistance of police to recover this amount, or to take action against the contractor for the assault. The Tribunal was not satisfied that the police refused to help the applicant or that the police beat and detained him. The Tribunal was not satisfied the applicant borrowed money from loan sharks to pay for his costs on such a project, or that he was ever harassed, threatened or otherwise harmed by such people.

5. The Tribunal was not satisfied the applicant went into hiding in the months before he left Malaysia, or that he came to Australia in fear of harm. The Tribunal did not accept that the applicant was ever discriminated by police on account of his Chinese ethnicity, or that the only way he could obtain work was subcontracting to a Malay contractor. The Tribunal was not satisfied that the applicant will be at risk of harm on return for reasons of his race or ethnicity. The Tribunal did not accept that the applicant would be at risk of harm on return to Malaysia, at the hands of Malay contractors or loan sharks. The Tribunal noted that the applicant did not claim to fear harm in Malaysia for any other reason, and that no other reason is apparent on the face of the information before the Tribunal.

6. The Tribunal was not satisfied there is a real chance the applicant would suffer serious harm on return to Malaysia for one or more of the reasons, in terms of s 5J(1) of the Act now or in the reasonably foreseeable future. The Tribunal was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

7. The Tribunal was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he would suffer harm, which would amount to significant harm under s 36(2)(aa) of the Act. The Tribunal found that the applicant was not a person in respect of whom Australia had protection obligations, and affirmed the decision under review.

Application to this Court

1. On 6 April 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant was present at Court at the time of the making of those orders. No such documents have been filed.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power, or a denial of procedural fairness to the applicant.

3. The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that, if satisfied the Tribunal’s decision was unlawful or unfair, the Court would set aside the decision and send it back for further hearing. The Court explained to the applicant that if not satisfied the Tribunal’s decision was unlawful or unfair, the applicant’s application would be dismissed.

4. The Court explained that it would have identified the evidence, and then give the applicant an opportunity to put submissions to the Court. The Court explained that if the applicant put submissions, the Court would call upon the solicitor for the first respondent and then give the applicant an opportunity to put submissions in reply. The Court explained that if the applicant did not put submissions, in light of the submissions that had already been filed by the first respondent and read to the applicant, the Court would not call on the solicitor for the first respondent. The applicant confirmed that he understood the nature of the hearing, as explained by the Court.

Application for adjournment

1. From the bar table, the applicant asserted that he had found a lawyer last week and wanted an adjournment. The applicant was unable to identify the lawyer that he had just seen by name. The applicant said he had been to a lawyer at Kempsey, and then that he had found a new lawyer approximately two weeks ago. The applicant was not able to identify the lawyer, or explain why the lawyer was not present.

2. The Court sought to explore with the applicant why he had not sought to obtain legal advice and the assistance of a lawyer at the time he filed his application. The applicant asserted that he did not understand the procedure. The applicant was also asked why he did not take steps to obtain a lawyer as a result of the orders made by the Registrar on 6 April 2017, and the applicant gave no satisfactory answer in that regard. The adjournment application was opposed by the first respondent. I am satisfied that the applicant has had reasonable opportunity to obtain a lawyer if he was able to do so. I am not satisfied that granting an adjournment would be of any utility. I am not satisfied that an adjournment is warranted in the interests of the administration of justice. For these reasons, an adjournment was refused.

No submissions from the bar table

1. The applicant was then invited to put submissions as to why the Tribunal’s decision was unlawful or unfair, and the applicant indicated that he had nothing to say. The Court repeated to the applicant that it would not call upon the solicitor for the first respondent if he did not put submissions as to why the Tribunal’s decision was unlawful or unfair. The applicant, again, indicated that he wanted an adjournment and the Court indicated to the applicant that his adjournment application had been refused. The Court, again, invited the applicant to address the Court as to why the Tribunal’s decision was unlawful or unfair, or to put submissions in answer to the submissions of the first respondent that have been read to the applicant. No submissions were put by the applicant.

Grounds of Application

1. The grounds of the application are as follows:

   1. The Tribunal did not properly consider discrimination ethnic Chinese face.

   2. There is wrong understanding of foreseeable harm. Thus, the law is not properly applied.

   3. The Tribunal needs to disclose more information to prove why I can be protected by the Malaysia authority.

Ground 1

1. In relation to ground 1, it is apparent that the Tribunal did consider and address the issue of whether or not the applicant would face harm on account of his race or ethnicity. The adverse findings on these claims were open on the material before the Tribunal, and cannot be said to lack an evident and intelligible justification. There was no failure to properly consider the applicant’s claims, as alleged in ground 1. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the Tribunal correctly identified the relevant law. On the face of the material before the Court, the Tribunal properly understood the applicant’s claims and the applicant had a real and meaningful hearing before the Tribunal. There is no basis on the material before the Court to find that the Tribunal had erred its application of the law. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the Tribunal was not under a duty to disclose any information to the applicant. No information has been identified enlivening any obligation under s 424A of the Act, nor did the Tribunal carry an onus to prove why the applicant can be protected by the Malaysian authorities. It was for the applicant to establish the applicant’s claims and fears in relation to the criteria under the Act. Ground 3, in substance, reflects a disagreement with the adverse findings made by the Tribunal, and does not identify any jurisdictional error.

Conclusion

1. No jurisdictional error is disclosed by the application and accordingly, the application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 26 October 2017