APN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCA 1983

FEDERAL COURT OF AUSTRALIA

APN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1983

Appeal from:	Application for leave to appeal: APN18 v Minister for Home Affairs & Anor [2019] FCCA 1351
File number:	VID 609 of 2019
Judge:	BEACH J
Date of judgment:	25 November 2019
Catchwords:	MIGRATION – application for leave to appeal – leave refused
Date of hearing:	22 November 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	27
Counsel for the Applicant:	The Applicant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Mr C van der Westhuizen of DLA Piper Australia
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

VID 609 of 2019

BETWEEN:

APN18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	BEACH J
DATE OF ORDER:	25 NOVEMBER 2019

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.The applicant’s application for leave to appeal be refused.

3.The applicant pay the first respondent’s costs of and incidental to such application.

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

REASONS FOR JUDGMENT

BEACH J:

1. The applicant has applied for leave to appeal from a judgment of the Federal Circuit Court delivered on 23 May 2019 in which the primary judge dismissed an application for judicial review of a decision of the Tribunal, which had affirmed a decision of a delegate of the Minister to refuse to grant to the applicant a Protection (Class XA) visa.

2. I would refuse leave to appeal for the reasons that follow.

3. The applicant is a female citizen of Malaysia.  She arrived in Australia on 5 March 2012 holding a visitor’s visa.

4. On 21 September 2015, the applicant applied for a protection visa claiming that due to a disability she would be subject to discrimination, harassment and bullying if she were to return to Malaysia.

5. On 20 April 2016, a delegate of the Minister refused to grant the protection visa on the basis that effective State protection would be available to the applicant in Malaysia.

6. On 6 May 2016, the applicant applied to the Tribunal for a review of the delegate’s decision.

7. On 21 December 2017, the applicant appeared before the Tribunal to give evidence and present arguments.  At that hearing, the applicant claimed that a friend had completed the protection visa application for her.  She said that she had signed the application but did not check its contents when it was completed.  She said that the contents of the application were not correct.  She said that in fact she had suffered an injury as a result of domestic abuse by her husband.  As a result, she amended her claims, the principal integers of which included the following matters.  First, it was said that the applicant wanted to leave her husband and as a result he was abusive towards her.  It was said that he physically abused her, which resulted in her suffering an injury to her finger and face.  Second, it was said that the applicant’s husband was a politician and had great influence within the community.  Third, it was said that as a Chinese woman she was discriminated against and as such she was not able to obtain help or protection.

8. On 12 January 2018, the Tribunal affirmed the delegate’s decision, with a notification letter sent to the applicant on 15 January 2018.  Let me elaborate on the Tribunal’s reasons.

9. The Tribunal accepted the applicant’s evidence in respect of her personal and family details (at [23]) saying:

   The Tribunal accepts the applicant’s oral evidence in relation to her personal details and finds that the applicant:

   (a)       was born on 20 January 1967 in Ipoh, Perak, Malaysia.

   (b)      is a Malaysian citizen of Chinese ethnicity.

   (c)       is of the Buddhist religion.

   (d)      is able to speak, read and write Mandarin and English.

   (e)       has limited education having only completed school until form 3 (year 9).

   (f)was married in 1991 to her husband … and divorced approximately 4 years ago.

   (g)       has three children, two boys aged 26 and 25 and a daughter aged 21.

10. Based on the evidence provided by the applicant at the hearing, the Tribunal found that the disability referred to by the applicant in her application was actually the alleged injuries to the applicant’s face and finger.  But in the absence of any medical or independent evidence to support her claims, the Tribunal did not accept that the injuries to the applicant’s face or finger were the result of domestic violence.

11. Further, the Tribunal found that the applicant’s claims that her husband was a State-level politician in Ipoh, Malaysia were vague, lacking in credibility and not supported by independent evidence.  Accordingly, it did not accept that the applicant’s husband was a politician or person of influence in the local community or with the police.

12. Further, as to the applicant’s assertion that she had been harassed and bullied by local youths as a result of her disability, being the injury to her finger and face, which resulted in her shoulder and ankle being broken, the applicant did not provide to the Tribunal any medical reports in relation to these alleged injuries, nor was she able to describe where and when she was assaulted and injured by the local youths.  In the absence of such evidence, the Tribunal did not accept these claims.

13. Further, the applicant was also unable to provide any evidence beyond her own assertions in relation to her claims that she had been denied access to shopping centres, schools, work and community participation by reason of her injuries or any other disability.  Based on the vague and unconvincing nature of the applicant’s evidence and the lack of any independent evidence, the Tribunal did not accept the applicant’s claims.

14. Generally, the Tribunal was not satisfied that the applicant faced a real chance of serious harm if she returned to Malaysia. The Tribunal accepted that women who are victims of domestic violence constituted a particular social group, but did not accept that the applicant had a genuine and credible fear of harm for a relevant reason. As such, according to the Tribunal, the applicant did not face a real chance of serious harm if returned to Malaysia. The Tribunal found that the applicant did not meet the criterion in s 36(2)(a) of the Migration Act 1958 (Cth).

15. Further, the Tribunal was not satisfied that there was a real risk the applicant would suffer significant harm as a foreseeable consequence of being removed to Malaysia and found that the applicant did not meet the criterion in s 36(2)(aa) of the Act.

16. On 9 February 2018, the applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision.  The application raised three grounds in the following form:

    1.[The] AAT member failed to consider the provided reason[s] of danger and the situation I’m facing during that time happened.

    2.AAT member not taken serious about my claim[s] about what happened to me when the thing happened in Malaysia.

    3.        AAT member take less attention.

17. Directions were later made by a Registrar of that court listing the matter for a show cause hearing on 15 May 2019 pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

18. On 15 May 2019, a show cause hearing was held before the primary judge. His Honour delivered judgment on 23 May 2019 dismissing the application pursuant to r 44.12(1)(a) of the Rules. His Honour found that the applicant had not particularised any claim that the Tribunal had failed to consider. Further, in his Honour’s view the Tribunal had recognised and considered all of the applicant’s claims but disposed of their factual basis on its adverse assessment of the applicant’s credibility. He said that its conclusions were open to it. His Honour concluded that ground one did not raise an arguable case. Further, his Honour found that the Tribunal had considered the applicant’s claims, in the sense of engaging in an active intellectual process directed to those claims, and that it rejected the applicant’s claims on the basis of adverse credibility findings which were clearly open to it. Accordingly, he considered that the second and third grounds also did not raise any arguable case. In summary, as his Honour was not satisfied that the applicant had demonstrated an arguable case, and as his Honour was not satisfied that there was any basis as to why in his residual discretion he should permit the application to go forward, his Honour dismissed the application.

19. I would note at this point that the grounds raised before and disposed of by his Honour did not concern the medical issues that the applicant has now raised with me.  Further, the medical material now placed before me was not in evidence before the primary judge.  Apparently the applicant had sought to tender some of this material before the primary judge, but the tender had been rejected.  That material was not of direct relevance to the matters that the primary judge had to consider concerning whether the Tribunal had made a jurisdictional error on the material before the Tribunal.

20. The application before me is for leave to appeal from the judgment of the primary judge which was strictly interlocutory as confirmed by r 44.12(2).

21. The application for leave to appeal raises one ground:

    1.I apply for leave to appeal from the judgement because I already gave or provide all of my medical health record/documentation as a prove and it is not necessary for me to do paperwork for appeling purposes in the future. (sic)

22. The draft notice of appeal raises two grounds in the following form:

    1.I’m not happy with the judge because he didn’t ask me anything in detail that day. The other day I told the judge that in 2016 I got cancer.

    2.Now I want this court to help me, agree to the above because I have to keep seeing the doctor. If I go back to Malaysia, which doctor am I going to go to keep looking at this disease for me? (sic)

23. In her affidavit filed in support of her application for leave to appeal, the applicant deposes to being treated for cancer and annexes medical documents which indicate that the applicant was diagnosed with cancer but is currently well and “disease-free”, although she requires follow-up care for at least five years.  Further, as part of her affidavit she has detailed eight hand-written points concerning her medical condition which I have carefully considered.  I also confirmed with her that all of the attached documents, including the Bendigo Health invoices related to her cancer rather than some other matter.

24. I must determine whether the applicant has shown sufficient doubt as to the correctness of the judgment below such as to warrant re-consideration and, further, that if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.

25. It would seem that the applicant is seeking leave to appeal for reasons arising from her medical condition and her medical documents.  But this material does not demonstrate any doubt as to the correctness of the judgment below.  This material does not relate to any medical condition concerning the injuries to her finger and face the applicant claimed she suffered due to domestic violence.  But in any event the Tribunal rejected the factual basis of these claims and no jurisdictional error has been established.  Further, as the applicant did not submit any medical documents to the Tribunal, the correctness of the primary judge’s decision arising out of any such documents cannot be impugned in terms of rejecting the suggestion that the Tribunal had made a jurisdictional error.

26. The applicant’s proposed grounds assert in substance that the applicant told the primary judge that she had cancer and that she wanted to stay in Australia for medical treatment.  I accept that the applicant told the primary judge that she had cancer.  But the primary judge’s role was limited to determining whether the decision of the Tribunal was affected by jurisdictional error, rather than whether the applicant should be allowed to remain in Australia for medical treatment or otherwise.  No error has been established in his Honour’s rejection of any of this medical material.  Further, neither before me nor the primary judge has the applicant advanced any reasonable argument identifying any error made by the Tribunal that could constitute a jurisdictional error.

27. In summary, the applicant has not demonstrated any sufficient doubt as to the correctness of the judgment below such as to warrant the grant of leave to appeal.  Accordingly, leave to appeal must be refused with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach.

Associate:

Dated:       25 November 2019