AMG17 v Minister for Immigration

[2017] FCCA 1746

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMG17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1746

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

Applicant: AMG17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 330 of 2017

Judgment of: Judge Driver

Hearing date: 27 July 2017

Delivered at: Sydney

Delivered on: 27 July 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Hooper of HWL Ebsworth

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 in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 330 of 2017

AMG17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

As Corrected

1. The applicant seeks judicial review that a decision of the Administrative Appeals Tribunal (Tribunal) made on 17 January 2017.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.  Background facts concerning the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 19 July 2017. 

2. The applicant is a male citizen of Malaysia.  He lodged an application for a protection visa on 3 December 2015[1].

   [1] Court Book (CB) 1 to 39

3. The applicant claimed to fear harm because of his involvement in protests with respect to water supply issues[2].  The applicant claimed that the police searched his home and threatened his family[3].

   [2] CB 39

   [3] CB 39

4. On 19 February 2016 a delegate of the Minister refused the visa application[4].  On 17 March 2016, the applicant sought review by the Tribunal[5].

   [4] CB 48 to 63

   [5] CB 64 to 82

5. The applicant appeared before the Tribunal on 11 November 2016[6].

   [6] CB 94 to 96

6. The Tribunal affirmed the decision of a delegate of the Minister, refusing to grant the applicant a protection visa.  The Tribunal rejected the applicant's credibility as a witness and his material factual claims[7].

   [7] CB 110 at [27]

The present proceedings

1. These proceedings began with a show cause application filed on 6 February 2017.  The applicant continues to rely upon that application.  The grounds in it are:

   1. I told read the refusal letter from AAT. They just repeated over and over that I did not conform to the refugees definition, what I said was not the truth and the material I have submitted was not the real one. The AAT officer doubted what I said from head to toe. However, they could not provide any evidence to prove that. AAT could not judge that I was not a real refugee. I could not recognize this unfair judgment. Although I told the truth, yet AAT officer doubted what I said, which was not reasonable seriously.

   2. My statement has stated that I helped SONG to protest the Malaysian government, and during the hearing I provided some details about protesting the Malaysian government and SONG and how serious was SONG hurt. Thus, if I come back to Malaysia, I will be harmed as SONG even to die. However, AAT officer doubted what I said, even to doubt the issue that SONG was harmed but could not provided any evidence, so AAT did not understand and distorted the truth seriously.

   3. I have told AAT officer about the issue of supplying water in Malaysia. Water is the most basic necessary material for the people. So every time in Summer the Malaysian face the situation that no grain was reaped, the government would like to collect money from the people in order to satisfy the water supply,  so we had to pay a lot of money to the government to run the water problem. However, never solved. The government collected the money for themselves. I have been harmed because of petitioning for this issue so many times, and the government never gave up tracing me. So if I come back, I must be persecuted, and could not live. Furthermore, there is no real fair for us. However, AAT officer did not believe me and could not give me any reason.

   4. The interpreter worked not good. The officer always asked me many times for one question, and asked me to explain further, so I doubted how they judged my case so rush and their work attitude without any carefulness. And their behavior is irresponsible. (errors in original)

2. I have before me as evidence the court book filed on 27 April 2017 and the affidavit which accompanied the applicant’s application. 

3. Only the Minister prepared written submissions in accordance with procedural orders made by a registrar on 6 April 2017. 

4. I invited oral submissions from the applicant this morning.  I explained to him that based upon my understanding of the grounds in his application, he had significant concerns about the Tribunal’s reasons, which were beyond the scope of this proceeding.  I explained to the applicant that the Court could not review the merits of the Tribunal decision.

5. I told the applicant that it appeared to me that only three potential legal issues could be said to arise from the grounds.  The first is whether the Tribunal’s conclusions or decision were reasonable in a legal sense.  The second is whether the process followed by the Tribunal was fair.  The third, which may be viewed as a subset of the second, is whether there was an interpretation problem at the Tribunal hearing as suggested by the applicant at [4] of his grounds.

6. The applicant was only able to address the third question and, in any event, there is nothing in the available material to suggest that the Tribunal decision was, in any sense, unreasonable or that there was any general issue of procedural unfairness.  In his oral submissions, the applicant told me that there was an interpretation problem at the Tribunal hearing.  He told me that the interpreter who had been booked for the hearing left early and that the greater part of the hearing was completed with a telephone interpreter.  The applicant told me that there were technical problems with the telephone connection and that he was dissatisfied with the quality of the interpreter.  The applicant asserts that his knowledge of English is good enough in order to detect interpretation problems.  He told me that he did not make any complaint to the presiding member, as the presiding member had told him to keep his evidence brief.

7. The court book from pages 94 to 96 confirms the following.  The applicant had been invited to a morning hearing, commencing at 9.30am on 11 November 2016.  There was a delay and the hearing did not commence until 1.01pm.  The interpreter booked for the hearing arrived at 9.04am and started interpreting at 1.01pm.  That interpreter stopped interpreting at 1.28pm, probably because he or she had only been booked for half a day.  There was then a delay of approximately 30 minutes and the hearing resumed at 2.04pm, apparently with the assistance of a telephone interpreter.  The hearing was completed at 3.22pm.  Those facts do not, on their face, support the proposition that the standard of interpretation at the hearing was inadequate or that there was a mistranslation of some aspect of the applicant’s evidence of critical importance.  There is no indication in the Tribunal’s reasons of any technical problems with the telephone interpreter or of any issue having been raised, either by the applicant or by the interpreter.

8. The applicant was given the opportunity, in procedural orders made by the registrar, to provide a transcript of the Tribunal hearing.  He initially denied attending the directions hearing on 6 April 2017, when the procedural orders were made for the conduct of today’s hearing.  He subsequently claimed that he did not understand Order 2 made by the registrar, although it had been read to him and he had consented to it.

9. On the basis of the available material, it is, in my view, not arguable that any interpretation problems at the Tribunal hearing resulted in procedural unfairness, either under the general law or in relation to s.425 of the Migration Act 1958 (Cth) (Migration Act). I otherwise agree with the Minister’s submissions concerning the grounds of review.

10. Grounds 1 to 3 of the application to the Court repeat aspects of the applicant's claims and express the applicant's unhappiness with the Tribunal's rejection of them.  Contrary to the assertions contained in these grounds, the Tribunal was not required to have evidence to rebut the applicant's claims.  Rather, it was required to reach a positive state of satisfaction that the applicant was owed protection obligations.

11. Ground 4 alleges that the interpreter was “not good”. This is not an allegation of jurisdictional error per se but, in any event, there is no evidence before the Court of material errors by the interpreter such that can demonstrate a breach of s.425 of the Migration Act by the Tribunal.

12. Considered independently of the applicant's assertions in the grounds of review, the Minister submits and I agree that the decision of the Tribunal is not affected by jurisdictional error. The Tribunal complied with its statutory obligations pursuant to Division 4 of Part 7 of the Migration Act. It considered the applicant's claims, and made factual findings reasonably open to it for the reasons given.

13. I conclude that 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) (Federal Circuit Court Rules), 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’s scale.  The applicant claims impecuniosity, but as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.

16. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  1 September 2017

CORRECTION

1. Paragraph 13 line 4 – delete “telephone”.