AMG17 v Minister for Immigration and Border Protection

[2017] FCA 1477

FEDERAL COURT OF AUSTRALIA

AMG17 v Minister for Immigration and Border Protection [2017] FCA 1477

Appeal from:

Application for leave to appeal: AMG17 v Minister for Immigration & Anor [2017] FCCA 1746

File number:

NSD 1371 of 2017

Judge:

O'CALLAGHAN J

Date of judgment:

22 November 2017

Date of publication of reasons:

7 December 2017

Catchwords:

MIGRATION – application for leave to appeal from an interlocutory decision of the Federal Circuit Court of Australia dismissing an application for review of a decision of the Administrative Appeals Tribunal – where proposed grounds of appeal directed entirely to merits of the Administrative Appeals Tribunal’s decision – decision of Federal Circuit Court of Australia not attended with sufficient doubt to warrant grant of leave – application dismissed

Legislation:

Migration Act 1958 (Cth), ss 5J(1)(a), 36(2)(a) and (aa)

Federal Court of Australia Act 1976 (Cth), s 24(1A)

Federal Circuit Court Rules 2001 (Cth), r 44.121(a)

Cases cited:

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Décor Corporation Proprietary Limited v Dard Industries Inconvenience (1991) 33 FCR 397

Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172

Date of hearing:

22 November 2017

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

11

Counsel for the Applicant:

The applicant appeared in person

Counsel for the First Respondent:

Ms S A Given

Solicitor for the First Respondent: 

HWL Ebsworth Lawyers

Counsel for the Second Respondent:

Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 1371 of 2017

BETWEEN:

AMG17
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	O'CALLAGHAN J
DATE OF ORDER:	22 NOVEMBER 2017

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the first respondent, to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
(Revised from transcript)

O’CALLAGHAN J:

1. The applicant in this proceeding seeks leave to appeal from the decision of the Federal Circuit Court of Australia (FCCA) in AMG17 v Minister for Immigration and Border Protection [2017] FCCA 1746. The primary judge dismissed the proceeding pursuant to r 44.121(a) of the Federal Circuit Court Rules 2001 (Cth). Accordingly, the order is interlocutory, and pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the applicant requires leave to bring any appeal against the decision of the primary judge. A grant of leave to appeal will be made where it is established that the decision of the primary judge is attended with sufficient doubt to warrant it being reconsidered on appeal and where substantial injustice would result if leave were refused, supposing the decision of the primary judge to be wrong: see Décor Corporation Proprietary Limited v Dard Industries Inconvenience (1991) 33 FCR 397 at 398-9.

   TRIBUNAL’S DECISION

2. The applicant is a citizen of Malaysia.  He lodged an application for a protection visa on 3 December 2015.  The applicant claimed to fear relevant harm because of his involvement in protests in Malaysia with respect to water supply issues.  The applicant claimed, in summary, that the police searched his home and threatened his family.  On 19 February 2016, a delegate of the first respondent refused the visa application.  On 17 March 2016, the applicant sought review by the Administrative Appeals Tribunal (the Tribunal).  The applicant appeared before the Tribunal on 11 November 2016.  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.

3. In particular, the Tribunal held having found that the applicant was not a credible witness that it did not accept that he was involved in any way in any relevant protest.  The Tribunal held that it did not accept that the applicant participated in a protest or wrote the protest letter that he claimed to have written; that his friend, Wan Song, had been arrested; or that the police had been looking for the applicant and asking for money.

4. Further, the Tribunal held that it did not accept that if the applicant returned to Malaysia, the police or the Malaysian Government, would arrest him, send him to prison, or harm him in any way for the reasons that the applicant claim before the Tribunal. The Tribunal further held, with respect to the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act), that, if the applicant were to return Malaysia there would not be a real chance that he would be subjected to persecution involving serious harm for any of the reasons specified in s 5J(1)(a) of the Act.

5. The Tribunal found that the applicant does not have a well-founded fear of persecution and is not a refugee. The Tribunal was therefore satisfied that the applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act. For the same reasons, the Tribunal also rejected the applicant’s claim under the complementary protection provisions in s 36(2)(aa) of the Act.

   PRIMARY JUDGE’S DECISION

6. The proceedings in the FCCA began with a show cause application filed on 6 February 2017. Pursuant to r 44.13(1) of the Federal Circuit Court Rules 2001 (Cth) at the hearing of the application for an order to show cause before the primary judge, the applicant was confined to the grounds contained in his application. The grounds contained in his application are set out in [7] of the primary judge’s reasons. It is not necessary to rehearse those grounds in these reasons.

7. In order to assist the applicant, the primary judge distilled three legal issues from the grounds contended for in the show cause application, namely:

   (1)whether the conclusions or decision of the Tribunal were/was reasonable;

   (2)whether procedural unfairness before the Tribunal was involved in some way;  and/or

   (3)whether there was a problem with interpretation at the hearing.

8. The third ground identified by the primary judge is not relied on by the applicant on this application, so it is not necessary here to rehearse the basis upon which the primary judge rejected the submissions made about that ground by the applicant.  The primary judge rejected the other two grounds as to unreasonableness or unfairness as having no basis.  The primary judge held, contrary to the assertions contained in the grounds, that 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.

   THE APPEAL

9. In this Court, the applicant seeks leave to appeal on three grounds.  Those grounds, which include, understandably enough, grammatical errors, are as follows:

   1.AAT did not identify the potential harm taken by Malaysia Government correctly.

   2.AAT has doubted all the supporting documents provided by me which confused a lot.

   3.AAT reviewed my case incorrectly.  The tribunal hided the serious question of the persecution I will face if return Malaysia.

10. The applicant did not file or rely on any written submissions.  At the hearing in this Court, the applicant was asked if he wished to make any submission in support of his application for leave to appeal.  In response, he said, “If I am asked to sign my name, I just sign my name.  I made a mistake at my first step.  I can only continue with what I’m doing”.  In my view, those statements do not assist the applicant.  In my view, none of the grounds contended for can possibly succeed if leave were to be granted, because each one of them is founded on the misconceived notion that this Court has any jurisdiction to engage in merits review of the Tribunal’s decision.  The Court does not have that jurisdiction: see by way of example only Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-7; and see also Gupta v Minister for Immigration and Border Protection [2017] FCAFC 172 at [62] per Gilmour and Mortimer JJ, Logan J agreeing at [102]. Further, as counsel for the first respondent submitted, the proposed grounds do not seek to impugn the decision of the primary judge in any event.

11. For those reasons, in my view, the proposed grounds of appeal could not succeed.  Accordingly, the applicant has not established that there is any purpose to be served by the granting of leave.  Further, the applicant has not established that the decision of the primary judge is attended with sufficient doubt to warrant it being reconsidered on appeal.  Accordingly, the Court will order that the application be dismissed and that the applicant pay the costs of the first respondent, to be agreed or assessed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Callaghan.

Associate:

Dated:        7 December 2017