Arm16 v Minister for Immigration

[2018] FCCA 2466

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARM16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2466

Catchwords:
MIGRATION – Application for judicial review – protection (Class XA) visa – whether the Tribunal made an error – whether the Tribunal failed to afford procedural fairness – credibility of the Applicant – no error by the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Applicant: ARM16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 630 of 2016

Judgment of: Judge McNab

Hearing date: 27 April 2018

Date of Last Submission: 27 April 2018

Delivered at: Melbourne

Delivered on: 7 September 2018

REPRESENTATION

Applicant in person

Solicitors for the Respondents: Mr. Murano, Clayton Utz

ORDERS

1. The application filed 29 March 2016 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 630 of 2016

ARM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns an application filed 29 March 2016 for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 3 March 2016.

2. The Applicant claimed that he was a non-citizen of Australia to whom Australia owes protection obligations and that there was a real risk that he would suffer significant harm if he is returned to Malaysia.

Chronology

1. The chronology is set out in submissions filed by the first respondent and that chronology is reproduced below (with footnotes omitted).

2. The Applicant is a citizen of Malaysia and is currently 53 years old who initially arrived in Australia on 6 November 2009.

3. On 29 July 2015, the applicant applied for the Visa. In that application, he made the following claims:

   a)he borrowed money from a money lender to start a small business but the business "dropped down" and he could not repay the money lender;

   b)the money lender sent some gangsters to take valuables from his house and his shop;

   c)he lodged a complaint with the police but the police were friends with the money lender;

   d)the money lender decided to kill him, and the money lender's men found him and beat and tortured him; and

   e)he ran away from the country to save himself.

4. On 28 October 2015, a delegate of the Minister refused to grant the Visa on the basis that the applicant did not satisfy the criteria for the grant of the Visa under s 36(2)(a) or s 36(2)(aa) of the Act.

5. On 9 November 2015, the applicant applied to the Tribunal for merits review of the delegate's decision. A copy of the delegate's decision was not provided with that application.

6. On 2 March 2016, the applicant attended a hearing before the Tribunal and was assisted by an interpreter in the Mandarin language.

7. By letter dated 4 March 2016 sent by email, the Tribunal notified the applicant of its decision dated 3 March 2016 to affirm the delegate's decision to refuse to grant the Visa.

Grounds of review

1. The Applicant’s grounds of review are (replicated exactly):

   [t]he Tribunal was not believing that I was beat by moneylender.

   The Tribunal was not believing that I owe money from moneylender and Tribunal member was not believing that I got problem in Malaysia because of lack of English it was very hard to understand my friend was help me to tell a story I’m not understand very well.

2. It is apparent, given the above, that the grounds of review seek to challenge factual and credibility findings made by the Tribunal.

Consideration

1. The Tribunal considered each of the Applicant’s claims and for the reasons stated in the decision did not accept the Applicant’s claims to fear harm in Malaysia from people from whom he had borrowed money.

2. The Tribunal had serious issues with the Applicant’s credibility and raised them with him directly at the hearing. There were a number of occasions where the Applicant gave evidence that the written claims in his application were incorrect. For instance at [47], the Tribunal raised with the Applicant a claim that he had made in his application form that local gangsters had come to his house and shop taken valuables. At the hearing he did not repeat this claim and the Tribunal referred to this, stating: “[h]e said he had signed the application form but did not know what was in there”. At [48] the Tribunal also noted that in his application form, the Applicant stated that local gangsters had taken valuables from him and that he got angry and went to the police station. The Tribunal noted at [48] that “the Applicant said this did not happen either”. He blamed a person called Joff for mistakes in the written application.

3. At [52] the Tribunal stated that it had considered the totality of the Applicant’s evidence and his explanation that he did not know the contents of the application. It was open to the Tribunal to find that the Applicant’s claims were not credible, and indeed the Tribunal did not accept this explanation and provided reasons why it did not accept it.

4. Of significance to the Tribunal was the delay of more than five and a half years between the time when the Applicant arrived in Australia and the time the application for protection was lodged. At [57] the Tribunal considered that as the Applicant knew he was in Australia unlawfully after the expiry of his three month visa and he would have made enquiries about what options he might have to seek protection Australia in order to avoid refoulement or removal to a place where he would be harmed. These findings were open to the Tribunal and no error is apparent in the manner in which the Tribunal approached its task.

5. Although not raised as an issue in the grounds of application, having read the documents in the court book and the reasons for decision, the Court notes that it can find no basis for any allegation that there has been a failure to accord procedural fairness in this case.

Conclusion

1. For the aforementioned reasons the Court dismisses the application filed on 29 March 2016 and orders that the Applicant pay the First Respondent’s costs.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 7 September 2018