APN18 v Minister for Home Affairs
[2019] FCCA 1351
•23 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APN18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1351 |
| Catchwords: MIGRATION – Protection visa – claim to having suffered domestic violence from spouse in Malaysia – claims rejected as vague and lacking in detail – criteria for grant of visa not satisfied – no jurisdictional error shown – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr 44.12, 44.13 Migration Act 1958 (Cth), ss 5J, 36, 65, 474, 476 |
| Cases cited: Carrascalao v Minister for Immigration and Border Protection [2017] 252 FCR 352 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Morad v El-Ashey [2017] FCA 1136 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 MZAJQ v Minister for Immigration [2015] FCCA 593 Nichol v Discovery Africa Limited [2016] FCAFC 182 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Siddique v Minister for Immigration and Border Protection [2014] FCA 1352 Spencer v The Commonwealth (2010) 241 CLR 118 SZSZW v Minister for Immigration and Border Protection [2018] FCAFC 82 SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6 Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051 Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158 |
| Applicant: | APN18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 324 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 15 May 2019 |
| Date of Last Submission: | 15 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 23 May 2019 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor Advocate for the Respondents: | Mr C. van der Westhuizen |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application filed on 9 February 2018 be dismissed.
The applicant pay the costs of the first respondent fixed at $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 324 of 2018
| APN18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 9 February 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 12 January 2018 affirming a decision of a delegate of the first respondent (Minister) not to grant her a Protection visa (visa) pursuant to s 65(1)(a) of the Migration Act 1958 (Cth) (Act).
The applicant, a female Malaysian national aged 52 years, first arrived in Australia on 5 March 2012 as the holder of a visitor visa. Thereafter, the applicant remained in Australia unlawfully until she lodged her application for the visa on 21 September 2015.
In her visa application, the applicant claimed to suffer from a disability which appeared to refer to alleged injuries to her face and finger that she claimed to have suffered as a result of her husband’s domestic violence. The applicant claimed that since suffering her disability, she was living in an isolated environment in which she was segregated, excluded and marginalised and ignored by her family and community. The applicant claimed that if she were to return to Malaysia, she would not be treated fairly or accepted as a valued individual. The applicant also claimed that a gang had assaulted her, breaking her ankle and shoulder, but that no further action was taken by the authorities because of her disability. The applicant claimed to fear harm on the basis that, if she returned to Malaysia, she would be bullied by youths because they knew that the authorities would take no further action.
On 20 April 2016, a delegate of the Minister refused the visa application on the substantive ground that the applicant was not a person in respect of whom Australia owed protection obligations, finding that effective state protection would be available to the applicant in Malaysia.
On 6 May 2016, the applicant lodged an application with the Tribunal for review of the delegate’s decision.
Tribunal’s decision
On 14 November 2017, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues arising in respect of the decision under review. The applicant attended the hearing on 21 December 2017 and was assisted by an interpreter.
At the hearing, the applicant claimed that a friend had completed the Protection visa application form for her. She signed the document, but did not check its contents when it was completed. The applicant claimed that the contents of the application were not correct, as she did not have a disability but had suffered an injury as a result of domestic abuse by her husband. As a result, she amended her claims as follows:
a)the applicant had wanted to leave her husband, and as a result he had become abusive towards her and tortured her causing her to sustain injuries to her finger and face;
b)the applicant’s husband was a politician who had great influence within the community; and
c)as a Chinese woman she was discriminated against and was not able to obtain help or protection.
On 12 January 2018, the Tribunal made a decision to affirm the delegate’s decision to refuse the visa application. The Tribunal provided a statement of its decision and reasons for that decision (Reasons).
The Tribunal accepted the applicant’s evidence in respect of her personal and family details. It found that, based on the evidence she had given at hearing, the ‘disability’ referred to by the applicant in her visa application form comprised the alleged injuries to the applicant’s face and finger arising from her husband’s purported domestic violence: [23]-[24].
However, absent medical or independent evidence to support her claims, the Tribunal did not accept the injuries to the applicant’s face or finger were the result of domestic violence: [25].
The Tribunal rejected the applicant’s claims that:
a)her husband was a State level politician in Ipoh, Malaysia, as being vague, lacking in credibility and not supported by any independent evidence. The Tribunal did not accept that the applicant’s husband was a politician or person of influence in the local community or with the police: [26];
b)her husband was unaware that she was living in Australia, because her children continued to communicate with their father and her daughter was now also living in Australia: [27];
c)she had been harassed by local youths as a result of her disability or that her shoulder and ankle had been broken in a fracas, as the applicant had not provided any medical reports in relation to these alleged injuries. She had also been unable to describe where and when she was assaulted and injured by the local youths: [28].
The Tribunal did not accept the applicant’s evidence because it was vague, unconvincing and not independently verified. Therefore, the Tribunal was not satisfied that the applicant suffered the domestic violence as she claimed: [31].
The Tribunal was also not satisfied that the applicant faced serious harm if she returned to Malaysia. It found that a long time had passed since the applicant had any contact with her husband, and it was unlikely that her husband would now continue to search for her: [32].
The Tribunal accepted the applicant belonged to a particular social group comprising vulnerable women who were victims of domestic violence, but did not accept that the applicant had a genuine and credible fear of harm for a reason mentioned in s 5J(1)(a) of the Act. For that reason, it did not accept that the applicant faced a real chance of serious harm if returned to Malaysia: [32]. Nor was it satisfied that there was a real risk the applicant would suffer significant harm as a foreseeable consequence of being removed to Malaysia: [34].
For those reasons the Tribunal found that the applicant did not meet the criteria for a Protection visa or for complementary protection.[1]
[1] Act, pars 36(2)(a)-(aa).
Procedural history
On 9 February 2018, the applicant sought judicial review of the Tribunal’s decision. The application was supported by an affidavit affirmed by the applicant which exhibited a copy of the Tribunal’s Reasons and adduced little further evidence in support of the application for review.
By a Response dated 3 April 2018, the Minister opposed the grant of relief contending that the grounds were too broad to advance a claim of jurisdictional error.
On 28 November 2018, orders were made, by consent, setting the application down for a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Rules). By those orders, the applicant was afforded the opportunity to file and serve any amended application including additional grounds of review with complete particulars of each ground and any written submissions in support of the application. The applicant did not take the opportunity to do so.
On 1 May 2019, the Minister filed submissions responsive to the grounds of review contained in the application.
Applicable principles
If the Tribunal’s decision was a privative clause decision[2], it is not amenable to judicial review. A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[3] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[4] Whether it should do so is a separate issue.
[2] Act, s 474(2).
[3]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[4] Act, s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[5] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[5]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Under the Act, the latitude granted to an administrative decision-maker turns upon whether the criteria for the grant of the particular visa are satisfied. By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[6]
[6]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Criteria for the grant of a Protection visa are contained in s 36.
Rule 44.12(1) confers power on the court at the hearing of an application to show cause, to grant relief by way of dismissal of the proceeding, or to adjourn the proceeding for a final hearing, or otherwise to make final orders in relation to the claims for relief.
The course which the court may adopt on a show cause hearing will depend upon whether or not it has been satisfied that the applicant has raised an arguable case for relief: r 44.12(1)(a)-(c). An order under r 44.12(1) is an interlocutory order: r 44.12(2). The power conferred by r 44.12 has been described as a form of summary dismissal: MZAJQ v Minister for Immigration;[7] SZUTB v Minister for Immigration & Border Protection.[8] More recently, however, it has been questioned, with respect correctly, whether the principles applicable to summary judgment ought be applied on a show cause application under r 44.12.
[7] [2015] FCCA 593, [13] (Whelan J).
[8] (2015) 298 FLR 6, [10] (Smith J).
It is convenient to identify the principles relating to summary judgment which are well settled: see Spencer v The Commonwealth.[9] It is appropriate to consider those principles if only to emphasise that the caution which must be exercised when considering summary judgment is no less applicable upon the determination of a show cause hearing.
[9] (2010) 241 CLR 118.
The power to grant summary judgment is expressed in permissive terms; the court may give judgment and may order that it be dismissed generally or in relation to any claim. Critically, in the case of summary judgment, the power is not engaged unless the court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding. So too, the power to dismiss an application on a show cause hearing is engaged only where the applicant has not satisfied the court that an arguable case for relief has been raised.
In Upaid Systems Ltd v Telstra Corporation Limited,[10] Perram, Jagot and Beach JJ considered the principles applicable to summary judgment not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer, supra, stated a series of further propositions, including the following:
a)first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success;
b)secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification;
c)thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved; and
d)fourthly, the familiar intensifying epithets such as ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power to grant summary judgment.
The propositions stated in Upaid Systems were endorsed by the Full Court in Nichol v Discovery Africa Limited.[11]
[10] [2016] FCAFC 158, 122 IPR 190, [46]-[49].
[11][2016] FCAFC 182, [133]-[142] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey [2017] FCA 1136, [15] (Kenny J).
In SZUTB, Smith J held[12] that the power conferred by r 44.12(1) had two components: (1) lack of satisfaction that the applicant had raised an arguable case; and (2) a residual discretion whether or not to dismiss the application. In Siddique v Minister for Immigration and Border Protection, Gilmour J explained it would be “wrong for the court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed the application should necessarily be dismissed.”[13] That is, the residual discretion remains to be considered.
[12](2015) 298 FLR 6, [12]-[16] citing Siddique v Minister for Immigration and Border Protection [2014] FCA 1352, [19]-[21] (Gilmour J); SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [20] (Beach J).
[13] [2014] FCA 1352, [19]-[21].
The doubts which have been expressed in relation to the direct application of the principles applied in relation to summary judgment upon a show cause application recognise that the statutory foundation of the two applications is different. In Takhi v Minister for Immigration, Citizenship and Multicultural Affairs,[14] Perry J observed that the approach to be taken on a show cause application differed from that taken on summary judgment inasmuch as: (1) the court was authorised to determine the application at a reasonably impressionistic level; (2) the applicant was confined on a show cause application to the grounds stated in the application;[15] (3) contrastingly, summary judgment involved a critical evaluation of the available materials to determine whether there was a real question of fact or law that ought go forward for trial; (4) the onus in the two applications was different, with the applicant under r 44.13 having to demonstrate an arguable case such as to warrant the matter going forward for final hearing. In reaching those conclusions Perry J considered it appropriate to rely upon the principles applied in an application for an extension of time. If an extension of time is to be granted the Court must be satisfied that it is in the interests of justice to do so: SZSZW v Minister for Immigration and Border Protection;[16] MZABP v Minister for Immigration and Border Protection.[17] Such considerations are equally instructive on a show cause hearing.
[14] [2018] FCA 2051, [4], [17]-[18].
[15] Rule 44.13(1).
[16][2018] FCAFC 82, [27] (Collier, Wigney and Gleeson JJ).
[17][2016] FCAFC 110, [38] (Tracey, Perry and Charlesworth JJ).
In MZABP, the Full Court endorsed statements by Mortimer J that the approach to be taken to a preliminary evaluation of the merits of a substantive application involved recognition that the grounds had not been as fully considered, developed and argued as if on a final hearing and, accordingly, that it was not a function appropriate to the exercise of the broad discretion to grant an extension of time to undertake a fuller consideration of the merits of the substantive claim. Mortimer J’s reasoning is instructive. Her Honour stated:[18]
. . . it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued. Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see . . . Jackamarra v Krakouer[19]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” . . .
[18][2015] FCA 1391, [62]-[63].
[19](1998) 195 CLR 516, [7]-[9].
Two of the factors identified by Mortimer J were that it would not be in the interests of the administration of justice to grant an extension of time where the proposed appeal had little or no prospects of success and that the matter should be assessed at an impressionistic level. While her Honour identified those matters in relation to an application for an extension of time, I consider that each of those principles should be applied in determining this show cause application.
Consideration
Before me, the applicant was assisted by an interpreter. As she was self-represented, I have re-examined the materials comprising the court book, the Tribunal’s reasons and application for review. The application for review contained 3 grounds.
Ground 1: failure to consider claims
Ground 1 reads:
The AAT member failed to consider the provided reasons of danger and the situation I’m facing during that time happened.
While the applicant contends that the Tribunal failed to consider her claims, the ground was unparticularised; it does not specify what claims the Tribunal had failed to consider, and was liable to be rejected on that basis. Contrary to Ground 1, the Tribunal did identify the applicant's claims, considering them all and the evidence that was advanced by the applicant: [17], [24] to [32].
Based on its adverse assessment of the credibility of the applicant's evidence, the Tribunal did not accept that: (1) the applicant's injuries to her face and finger were the result of domestic violence; (2) the applicant's husband was a politician or person of influence, or that he was still be looking for her in Malaysia more than five years later; (3) the applicant had suffered from domestic violence; (4) the applicant had been harassed an bullied because of her 'disability': [25]-[31].
I accept the Minister’s submission that these findings disposed of the factual basis of the applicant's claims, and that it was therefore open for the Tribunal to find that the applicant did not face a real chance of harm or a real risk of significant harm: [32], [34].
Ground 1 does not raise any arguable case and is rejected.
Ground 2: generalised claims
Ground 2 reads:
AAT member not taken serious (sic) about my claims about what happened to me when the thing happened in Malaysia.
Ground 3 simply reads:
AAT member take less attention.
Grounds 2-3, which are also unparticularised, variously assert that the Tribunal did not take the applicant's claims about what happened in Malaysia seriously, or that insufficient attention was given to her claims.
Contrary to these grounds, the Reasons confirm that the Tribunal did consider the applicant's claims, in the sense of engaging[20] in an active intellectual process directed to those claims: [24]-[32].
[20]Carrascalao v Minister for Immigration and Border Protection [2017] 252 FCR 352, [45]-[46] (Griffiths, White and Bromich JJ).
The Tribunal rejected the applicant's claims on the basis of adverse credibility findings which were clearly open based on the information and evidence before it, including its findings that the evidence given by the applicant had been vague and implausible.
Grounds 2-3 do not raise any arguable case and are rejected.
Conclusion
For the reasons set out above, I am not satisfied that the applicant has demonstrated an arguable basis for judicial review of the Tribunal’s decision. Moreover, in the exercise of the residual discretion which is conferred in respect to the determination of a show cause application, I am not satisfied that any basis was shown why this application should be permitted to go forward. The application must be dismissed.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 23 May 2019
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