Als17 v Minister for Home Affairs
[2018] FCA 1858
•16 November 2018
FEDERAL COURT OF AUSTRALIA
ALS17 v Minister for Home Affairs [2018] FCA 1858
Appeal from: ALS17 v The Minister for Immigration and Border Protection & Anor [2018] FCCA 1394 File number: NSD 1159 of 2018 Judge: MURPHY J Date of judgment: 16 November 2018 Date of publication of reasons: 26 November 2018 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court of Australia – leave required to raise fresh grounds of appeal – principles relevant to grant of leave to raise new grounds of appeal – leave to raise fresh ground refused – appeal dismissed Legislation: Migration Act 1958 (Cth) Cases cited: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788
Minister for Immigration and Multicultural Affairs v Jia 2005 CLR 507; [2001] HCA 17
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158
Water Board v Moustakas (1988) 180 CLR 491; [1998] HCA 12
Date of hearing: 16 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Mr L Leerdam of DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 1159 of 2018 BETWEEN: ALS17
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MURPHY J
DATE OF ORDER:
16 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant 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
(Revised from transcript)MURPHY J:
In this matter the appellant, ALS17, appeals from the judgment of the Federal Circuit Court in ALS17 v The Minister for Immigration and Border Protection & Anor [2018] FCCA 1394. The primary judge dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal dated 6 January 2017, which affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse to grant the appellant a protection visa under section 65 of the Migration Act 1958 (Cth).
FACTUAL AND PROCEDURAL BACKGROUND
The appellant is a citizen of Malaysia, who lawfully arrived in Australia on 16 January 2014, holding Electronic Travel Authority. On 14 October 2014, the appellant applied for a protection visa. The appellant provided a written statement of claims in which, in brief summary, he claimed that:
(a)he was a tiler in Malaysia;
(b)he is ethnically Chinese, and Chinese people are discriminated against in Malaysia, and they suffer limitations in business, education and in other ways;
(c)he applied for a bank loan in order to open a company and contract for tiling projects, but was refused;
(d)he was introduced to a private money lender and borrowed 120,000 ringgit with monthly interest of 6%. In March 2012, he obtained a subcontract to do some tiling work and was paid a deposit;
(e)he completed the work over six months, but the person who subcontracted him refused to pay him the balance, which caused him significant financial distress;
(f)some time later, the Malaysian Taxation Office accused him of tax evasion, and advised he had an outstanding tax liability of 20,000 ringgit. The appellant considered this an abuse of power, and complained to the Malaysian Chinese Association (MCA). The MCA however told him the officials were acting according to law;
(g)the appellant could not continue his business because of cash flow difficulties, and he still owed the money lender a lot of money;
(h)the money lender often went to the appellant’s house with others, and threatened and intimidated him, and threatened to kill him if he didn’t repay the loan;
(i)he therefore had to leave Malaysia, and after he left his family, who stayed behind, were constantly harassed; and
(j)he claims to fear for his life if he returned to Malaysia, and seeks to be allowed to stay in Australia.
The appellant gave further evidence in an interview with a delegate of the Minister on 24 February 2015. The appellant said that he was persecuted because of his Chinese ethnicity and his political opinions. The appellant said he did not have a political opinion but that the political atmosphere in Malaysia did not allow him to express his opinions. He also claimed to fear harm from the money lender. The delegate refused to grant the appellant a protection visa.
The appellant then applied to the Refugee Review Tribunal (which was later subsumed into the Administrative Appeals Tribunal) for a review of that decision. The Tribunal conducted a hearing on 15 November 2016. On 16 November 2016 the Tribunal wrote to the appellant inviting him to comment on a range of issues, including apparent inconsistencies in his evidence, by 30 November 2016. The appellant provided a written response on 29 November 2016, but did not make any comments regarding the specific issues raised, and said only that he had been under “extreme stress” before he left Malaysia and it was only human to be unable to recall exact dates. He said he believed that the time given to respond was insufficient.
On 6 January 2017 the Tribunal affirmed the delegate’s decision to refuse the protection visa. In broad terms, based on various inconsistencies in his account and his failure to answer the specific queries from the Tribunal in his letter of 29 November 2016, the Tribunal did not find the appellant to be a truthful or credible witness. The Tribunal did not accept that he left Malaysia because he was threatened by a money lender to whom he owed a large amount of money, or that he feared that he would be harmed by a money lender if he returned to Malaysia. The Tribunal found that the appellant’s fears related solely to the fact that he was unable to repay a debt to the money lender and not that he feared persecution in Malaysia because of his Chinese ethnicity and his political opinion.
On 6 February 2017, the appellant sought judicial review of the Tribunal’s decision. That application contained four grounds which may be summarised as follows:
(a)the Tribunal, on unsubstantiated evidence, believed the appellant would not suffer any significant harm if he returns to Malaysia;
(b)the Tribunal put little weight on the statements supporting the appellant’s claim;
(c)the Tribunal did not consider the appellant would be harmed because of his Chinese ethnicity if he returns to Malaysia; and
(d)the Tribunal put irrelevant questions to the appellant.
Following a hearing on 4 May 2018, the primary judge delivered judgment on 8 June 2018 dismissing the application for judicial review. On 29 June 2018, the appellant filed a notice of appeal to this Court.
THE APPEAL TO THIS COURT
The notice of appeal raises the following three grounds of appeal:
Grounds of appeal
1.My case was considered with bias.
2.The Tribunal refused my claims without substantiated evidence.
3.Some questions put to me are not relevant to my case.
The appellant sought leave to file written submissions on the morning of the hearing, and I have granted such leave. Those submissions are in parts curious. Paragraph 12 of the submissions refers to an amended application in this matter when there was not such an amended application. It refers to five grounds of judicial review when the application below had four grounds. It refers to written submissions filed on 23 March 2017, and the Minister’s representative says there were no such submissions. Further, the grounds set out in the written submissions do not appear to closely relate to the three grounds of appeal alleged in the notice of appeal filed in the matter. Even so, I asked the Minister’s representative to address the grounds, construing them broadly and construing them insofar as they could be, to relate to the grounds of appeal.
Ground 1
This ground of appeal alleges that the appellant’s case was considered with bias. No such ground was advanced before the primary judge and, as the respondent argues, the appellant requires leave to pursue this ground. The first respondent submits that leave should be refused on the basis that the ground lacks merit.
The appellant’s written submissions do not address the requirement for leave, and the proposed ground of appeal does not contain any particulars. In oral submissions, the appellant said the alleged bias was on the part of the Tribunal and not on the part of the primary judge, and that the Tribunal was biased because it was unfair to him, both in the way his case was heard and the result in the case. When pressed for more detail, the appellant said only that he felt there was bias because the Tribunal did not believe him, and no more than that.
For an allegation of bias to be made out, it must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17 at [69]. The appellant has not particularised the alleged bias, or pointed to any evidence in support of it.
Although this ground of appeal was not raised below, it is settled that where it is expedient and in the interests of justice, an appellate court may allow a point to be raised for the first time on appeal: Water Board v Moustakas (1988) 180 CLR 491; [1998] HCA 12. In deciding whether it is expedient and in the interests of justice to grant leave to raise a fresh ground of appeal, it is relevant to consider the merits of the proposed ground: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158.
In that case, the Full Court said at [48]:
Where there is no adequate explanation for the failure to take a point, and it seems to be of doubtful merit, leave should generally be refused.
Even so, the question of whether to grant leave is particularly sensitive in refugee cases, because an adverse decision may have a serious consequences: Iyer v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1788 at [22]. The appellant need only mount a reasonable argument in relation to the proposed grounds; a full consideration of the proposed appeal ground should not be undertaken. Other relevant considerations were set out by Madgwick J (with whom Conti J agreed) in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [166].
In my view, leave to advance this ground of appeal should be refused. It is of doubtful merit. There is no explanation for the failure to take the point below, and it appears to be little more than a complaint that the appellant’s claims were not believed. I asked the appellant on several occasions whether there was any more to the allegation of bias than the fact he was not believed, and he said there was not. In reality it goes no further than Ground 2 of the appeal, which is that the Tribunal refused the claims made without substantiated evidence.
Ground 2
By Ground 2, which follows the first ground of the application below, the appellant contends the Tribunal refused his claims without substantiated evidence. Again, the appellant does not identify which of the Tribunal’s findings he is referring to, or what the unsubstantiated evidence is. In my view, there is no merit in this ground of appeal. After recounting all of the relevant evidence, the primary judge found that the appellant’s contentions in relation to these grounds do not rise above a strong disagreement with the Tribunal’s reasoning and decision: at [16] to [19]. In essence, the appellant complains the Tribunal did not believe him, and the appellant did not, at the hearing before the Federal Circuit Court, identify which particular matters the Tribunal failed to consider, but which the appellant asserted were relevant.
The Federal Circuit Court found that the Tribunal’s conclusion that the appellant was not a credible witness was open to it on the materials for the reasons it gave. Those reasons largely centred on the inconsistencies in his evidence, on which he was invited to comment by the Tribunal, and did not. The Tribunal’s reasons disclose a logical chain of reasoning between the established facts and the conclusions drawn. The Tribunal analysed the appellant’s evidence in support of his claims, and found it wanting.
In paragraph 14 of his written submissions the appellant developed Ground 2 into an assertion that the Tribunal constructively failed to exercise its jurisdiction, and/or gave reasons that were irrational or illogical in affirming the decision. I do not accept that. On no view is it irrational or illogical for the Tribunal to set out the evidence, to point out the inconsistencies in the evidence, and on the basis of those inconsistencies decide it did not accept that the appellant faced a real risk of harm because it did not accept he borrowed a large amount of money from illegal money lenders, or that the appellant or anyone else in his family had been threatened, harmed or harassed by money lenders. There is nothing to indicate constructive failure to exercise jurisdiction.
Reasonable minds might differ as to whether the Tribunal reached the correct conclusion, but it is not the Court’s task to engage in a merits review of the Tribunal’s view of the evidence. There can be no question that that decision was open. I respectfully concur with the primary judge’s conclusion.
Ground 3
Under Ground 3, the appellant asserts that the questions put to him were not relevant to his case. Ground 3 follows the fourth ground of the application for judicial review below. Again, the appellant provided no particulars identifying what the irrelevant questions were said to be. At [24] of the primary judgment, her Honour states that when the Court pressed the appellant to give a specific example of a question which he asserted was irrelevant, the appellant’s only examples were that he was asked questions relating to why he had borrowed money and what would happen to him if he returned to Malaysia. He said that he was asked these questions, provided an answer, and then was asked the question again.
The primary judge concluded on the basis of this that the appellant’s complaint was not really about being asked irrelevant questions, but being asked the same questions more than once and not being believed in the answers he gave: at [25]. The position is no clearer before me, but having regard to the Tribunal’s decision, I can see nothing in the record to indicate irrelevant questions. The Tribunal asked a series of detailed questions of the appellant in a letter dated 16 November 2016. Those questions were directed to what the Tribunal said were inconsistencies in his evidence, inviting him to provide comments or responses. In his response on 29 November 2016, he did not address the substance of the asserted inconsistencies.
Those questions, directed as they are to asserted inconsistencies, cannot properly be seen as irrelevant. There is no evidence to show irrelevant questions were put to the appellant, or more importantly, that the Tribunal took into account irrelevant considerations. This ground of appeal must also be dismissed.
CONCLUSION
I can discern no jurisdictional error in the decision of the Tribunal and no appealable error in the decision of the Federal Circuit Court. On that basis, the appeal must be dismissed, and the appellant is ordered to pay the first respondent’s costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy. Associate:
Dated: 26 November 2018
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