Amb16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 966

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMB16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 966

File number(s):

SYG 482 of 2016

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

19 April 2021

Catchwords:

MIGRATION –  Administrative Appeals Tribunal – Class 676 Tourist visa – whether the Tribunal fully understood the compelling circumstances of the applicant’s case – whether jurisdictional error is made out –  no jurisdictional error is made out –  the application is dismissed.

Legislation:

Migration Act 1958 (Cth) s 438(1)(a)

Evidence Act 1995 (Cth) s 170

Cases cited:

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

BQQ v Minister for Home Affairs [2019] FCA 218

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6

Minister for Immigration and Border Protection v SZMTA [2019] 264 CLR 421

Minister for Immigration and Ethnic Affairs v WU Shan Liang [1996] 185 CLR 259

Singh v Minister for Immigration and Border Protection [2016] FCAFC 183

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Number of paragraphs:

30

Date of last submission/s:

19 April 2021

Date of hearing:

19 April 2021

Place:

Parramatta

Solicitor for the Applicant:

The Applicant appeared in person.

Solicitor for the Respondents:

Ms Kelly appeared on behalf of the First Respondent.

ORDERS

SYG 482 of 2016

BETWEEN:

AMB16

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	19 APRIL 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant to pay the First Respondent’s costs fixed in the amount of $5000.00.

REASONS FOR JUDGMENT
(As revised from the transcript)

JUDGE HUMPHREYS

1. This is judgment in the matter of AMB16 versus the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. 

2. Judgment in this matter has been given orally, following the decision of the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6. The reasons for judgment are being contemporaneously translated by an Interpreter in the Indonesian language, and the applicant has been advised that should she wish to have a copy of these reasons in writing, she can email chambers and a written copy will be provided.

3. The applicant is a female citizen of Indonesia.  The applicant first arrived in Australia in March 2010 as the holder of a subclass 676 Tourist visa.  That visa expired in June 2010.  The applicant remained unlawfully in Australia until she had lodged a Protection visa application on 6 February 2014.  On 14 October 2014, the delegate of the Minister for Immigration (“the delegate”) refused the applicant her protection visa.  The applicant sought merits review with the Administrative Appeals Tribunal (“the Tribunal”).  In a decision dated 10 February 2016, the Tribunal affirmed the delegate’s decision to refuse the applicant her protection visa.  The applicant now seeks judicial review of the Tribunal decision. 

4. The Court notes that the hearing of this matter along with a cohort of similar matters was adjourned on 31 January 2017 pending the outcome of a special leave application to the High Court in Singh v Minister for Immigration and Border Protection [2016] FCAFC 183. Following delivery of the judgment by the High Court in Minister for Immigration and Border Protection v SZMTA [2019] 264 CLR 421 (“SZMTA”), the matter has come back into the list and was subsequently listed for a final hearing before this Court. 

   THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

5. After setting up the history of the matter, the Tribunal noted that the applicant is a citizen of Indonesia.  The applicant’s claims are set out in paragraph 3 of the Tribunal decision, being that the applicant engaged a migration consultant in Indonesia to assist her and a third party, X, to travel to Australia using fraudulent information.  The fraudulent nature of the Australian visa application was discovered by Australian authorities.  The applicant fears that the migration consultant in Indonesia may harm her, because his fraudulent conduct has been uncovered in relation to her Tourist visa application. 

6. The applicant also fears prosecution and punishment by Indonesian authorities for engaging in visa fraud in obtaining an Australian visa.  The applicant also claims to fear financial harm and hardship in Indonesia, which is why she left Indonesia in 2010.  While not expressly claiming fear of harm as Chinese Christian, the applicant mentioned during a departmental interview, on 7 October 2014, that there is “pressure” on the Chinese and Christian population of Asia.  Accordingly, the Tribunal considered the applicant’s ethnicity and religion in its consideration. 

7. At paragraph 4 of its decision, the Tribunal noted that the applicant indicated in her Protection visa application that she was a successful businesswoman and was financially established in Indonesia, however, she was “facing many problems which led me to seek travel to Australia for a better life and to be away from the pressure”. The applicant stated that she met a migration consultant in Indonesia who fabricated and organised documents and “made it easy for me to get a visa with X”. The applicant stated that she will be in trouble because the government may prosecute her, and the migration consultant may harm her, as the Australian Embassy in Indonesia will follow up his behaviour through police. 

8. Noting, at paragraph 12 of the Tribunal decision, that the applicant did not think that she was the only person that he provided the fraudulent documents for, and that she had not been in contact with the migration agent since 2013, the Tribunal concluded that the applicant’s claim that she would be specifically blamed for exposing the migration agent’s involvement in migration fraud was entirely speculative and unconvincing.  The Tribunal discussed with the applicant, at paragraph 15 of its decision, evidence that she had willingly paid the migration agent to falsify documents so she could come to Australia to work and take X. 

9. The applicant did not apply for a Protection visa until 2014, despite her Tourist visa ceasing in June 2010.  The applicant stated that she hoped to continue working undetected and return quietly into Indonesia.  Variations in the applicant’s evidence cast doubt as to her reliability of being a truthful witness.  Paragraphs 17 to 20 of the Tribunal decision, deal with its consideration of the claim that the applicant would face prosecution by Indonesian authorities for migration fraud.  At paragraph 19 of its decision, the Tribunal considered the applicant’s claims that she faces imprisonment in Indonesia entirely speculative and unsupported by reliable, independent sources. 

10. Paragraphs 21 through to 29 of the Tribunal decision, deal with the applicant’s claims that prior to her departure she was suffering financial issues.  The applicant stated that at the time she left Indonesia, she had a debt the equivalent of around AUD $20,000.  The applicant told the Tribunal that she had informed her various creditors that she would pay them off in stages.  No action has been taken against the applicant to pursue the payment of the debts.  When asked what the applicant thinks may happen to her if she returns to Indonesia without paying the debts, she said that a debt collector may come to her, and she doesn’t know what would happen as it hasn’t happened before. 

11. The applicant subsequently contradicted her evidence by stating that the debt collector had come to her home in Indonesia before and confiscated the assets in her home.  The Tribunal was not satisfied that in the reasonably foreseeable future the applicant faces economic hardship that threatens her capacity to subsist, or a denial of access to basic services that threatens her capacity to subsist.  The Tribunal was not satisfied that the financial hardship the applicant may face if returned, rose to a level of significant harm as contemplated by law. 

12. Paragraphs 30 and 31 of the Tribunal decision deal with fears in relation to being an ethnic Chinese.  The Tribunal noted country information that indicates ethnic Chinese in Indonesia, experience low level discrimination.  Members of the Chinese population remain very successful businessmen and women in Indonesia.  Christianity is officially recognised in Indonesia, and Christians, in general, are able to practise their faith without interference.  The Tribunal noted, at paragraph 32 of its decision, that in post-hearing submissions, the applicant informed the Tribunal that the situation in Indonesia was terrible.  The applicant referenced the bombing in Jakarta, and reports and commentary about the 14 January 2016 bombing in Jakarta was submitted in support. 

13. The Tribunal noted that the applicant indicated that she lived in Surabaya in East Java, approximately 800 kilometres from Jakarta.  Based on that fact, the Tribunal was not satisfied that the applicant faced anything more than a remote or farfetched possibility of harm in connection to such an incident.  The applicant also gave evidence that she is participating in a medical research trial in Australia.  This relates to a higher level of cholesterol.  The Tribunal was not satisfied that the applicant’s high cholesterol or her inability to participate in the Australian drug trial should she return to Indonesia amounted, or gave rise to a real chance of serious or significant harm. 

14. Based on all of the material the Tribunal was not satisfied that the applicant met the criteria for either refugee protection or complementary protection. 

    GROUNDS OF JUDICIAL REVIEW

15. The applicant relies upon a single ground of judicial review contained within the initiating application filed with the Court on 4 March 2016.  It is as follows: 

    Ground One

    I submit that the Tribunal did not fully understand the compelling circumstances and my case. 

    THE APPLICANT’S SUBMISSIONS

16. The applicant appeared before the Court unrepresented.  The applicant was assisted by an Indonesian Interpreter.  The Court ensured, prior to the hearing, that the applicant was in possession of a copy of the relevant Court Books, and that she also had the first respondent’s written submissions.  Whilst they were not interpreted to her in Court, the applicant indicated that she had read and understood the first respondent’s written submissions.  The Court also ensured that the applicant had access to a pen and paper so that she could take notes during the course of the hearing should she wish to. 

17. At the commencement of the hearing, the Court explained the difference between judicial review, which the Court was undertaking, and merits review.  The Court also explained the relevant procedure by which the hearing would be conducted.  Despite Court orders made on 15 May 2020, no written submissions or other material was filed by the applicant in support of her case.  The applicant told the Court that it knew very well about her journey here and her visa.  The applicant stated that the person she travelled with to Australia, was simply a friend.  The migration agent who organised her travel said it would be too difficult for her to enter Australia initially, as she had not travelled overseas before. 

18. The applicant told the Court that she was fearful to go back to Indonesia not only due to the bombing in Jakarta but, also, in relation to a subsequent bombing that had taken place in Surabaya at a Christian church.  The Court explained that it could not take into account any information that was subsequent to the Tribunal decision.  The applicant stated that she wished to appeal to the Court to be given the opportunity to have the matter reconsidered by the Tribunal.  The applicant stated that she was able to work in Australia and provide support to her mother in Indonesia, which she said she would not be able to do if she was returned. 

19. The applicant stated that she was scared about what would happen to her if she was returned to Indonesia.  Following the first respondent’s oral submissions, the applicant again repeated that the gentleman she travelled with to Australia and her were just friends.  The applicant concluded by saying “please, one more time if you will help me”, and referred to the previous information about what would happen to her in her view, if she returned to Indonesia. 

    THE FIRST RESPONDENT’S SUBMISSIONS

20. In relation to the sole ground of judicial review, it was submitted that the applicant had not provided any particulars to explain what the “compelling circumstances” that the applicant asserts the Tribunal failed to understand were.  It was submitted that contrary to the applicant’s contention, the Tribunal considered and properly understood her claims and evidence which were plainly discussed and explored with her, at the Tribunal hearing.  It was submitted that the Tribunal’s findings, including its adverse credibility findings, were open to it, on the material before it, and for the reasons it gave; (see: BQQ v Minister for Home Affairs [2019] FCA 218).

21. At its highest, the sole ground seeks impermissible merits review by the Court and reveals no jurisdictional error in the Tribunal decision; (see: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 [272]). Whilst not a pleaded ground by the applicant, the departmental file for this matter contained a non-disclosure certificate issued pursuant to

    
    

    s 438(1)(a) of the Migration Act 1958 (Cth) (“the Act”).  The documents in a redacted form, are contained in an Affidavit of Madeleine Kelly, solicitor, affirmed 25 May 2020.  A copy of this Affidavit has been provided to the applicant. 

22. The documents, the subject of the certificate are the departmental case notes and a copy of the delegate’s decision to refuse the grant of a visa to the man that the applicant claimed to have travelled with to Australia. Although the identity of the man is known to the applicant, he has not consented to the use or disclosure of the information collected about him for a purpose other than his own visa application. The Minister quite properly concedes that the certificate is invalid in circumstances where the basis upon which it was issued, does not provide a reason capable of grounding a claim for public interest immunity from disclosure, under either common law, or under s 170 of the Evidence Act 1995 (Cth).

23. The legal representative for the first respondent also accepts that the applicant was not informed about the existence of the certificate and that failure without more, constitutes a breach of the Tribunal’s implied obligation of procedural fairness; (see: SZMTA at [38]). It was submitted that the issue then becomes, how the Tribunal acted on the certificate and, if it relied on the certificate, whether the reliance was material to the outcome. Put another way, whether compliance with the Tribunal’s procedural fairness obligations could realistically have resulted in a different outcome; (see: SZMTA at [45]).

24. The legal representative for the first respondent submitted that the existence of an invalid certificate and the failure to disclose it to the applicant does not lead to a finding of jurisdictional error in the circumstances of this case.  Whilst the Tribunal referred to the man who the applicant travelled with to Australia throughout the decision record, it does not make reference to the documents and information contained in the folios reportedly covered by the certificate.  Further, it does not make any findings in relation to the applicant’s credibility on the basis of any matter or information set out in the material covered by the certificate. 

25. As a result, any opportunity to give the applicant the opportunity to comment on the certificate and the documents covered, could not realistically have made a difference to the outcome of the Tribunal’s determination.  Accordingly, no jurisdictional error arises. 

    CONSIDERATION

26. The applicant’s sole ground of judicial review consists of a bland assertion without particulars of jurisdictional error.  Such an assertion without particulars will not constitute jurisdictional error; (see: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]). A fair reading of the Tribunal’s reasons, indicates that its findings were open to it, on the evidence and materials before it and for the reasons it gave, including adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness or reaching a finding without a logical or probative basis or unreasonableness; (see: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83]).

27. If anything, to sole ground of jurisdictional review advanced by the applicant seeks to engage the Court in impermissible merits review. The ground of judicial review has no merit. As a matter of fairness, the respondent properly raised the issue relating to the non-disclosure certificate, issued pursuant to s 438(1)(a) of the Act.  The legal representative of the first respondent properly concedes that the certificate is invalid, as the basis upon which it was issued, does not provide a reason capable of grounding a claim for public interest immunity. 

28. The legal representative of the first respondent also properly accepts that the applicant was not made aware of the existence of the certificate and this failure constitutes a breach of the Tribunal’s implied obligation of procedural fairness.  The Court is satisfied that the non-disclosure of the certificate did not result in any practical injustice to the applicant.  The Tribunal decision referred to the man that the applicant travelled with, but made no reference to the documents or information contained in the material covered by the certificate.  Further, the applicant was already aware of the identity of the man and his involvement in travelling to Australia with her on a fraudulent visa.  

29. There is nothing new to the applicant in the documents covered by the certificate.  The Court is satisfied in these circumstances that the error conceded by the first respondent, by the Tribunal, was not material to the outcome reached by it.  The disclosure of that material would have made no difference to the end result reached by the Tribunal.  Accordingly, no jurisdictional error arises as a result of the non-disclosure and the invalid certificate.  As the applicant is unrepresented, the Court has perused the decision record of the Tribunal but is unable to ascertain any jurisdictional error which was not articulated by the applicant. 

    CONCLUSION

30. Accordingly, the application is dismissed.

    Written reasons requested on 6 May 2021, and published on 7 May 2021.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       7 May 2021