ATT17 v Minister for Immigration
[2018] FCCA 671
•20 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATT17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 671 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – first applicant claiming a fear of harm in Malaysia for political reasons – first applicant not believed – grounds of review advanced not establishing any jurisdictional error – consideration of a certificate purportedly issued under s.438 of the Migration Act. |
| Legislation: Migration Act 1958 (Cth), ss.36, 417, 424A, 425, 438, 440 |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 AVO15 v Minister for Immigration [2017] FCA 566 Minister for Immigration v SZMDS (2010) 266 ALR 367 Minister for Immigration v SZSRS [2014] FCAFC 16 |
| First Applicant: | ATT17 |
| Second Applicant: | ATU17 |
| Third Applicant: | ATV17 |
| Fourth Applicant: | ATW17 |
| Fifth Applicant: | ATY17 |
| Sixth Applicant: | ATZ17 |
| Seventh Applicant: | AUA17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 537 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2018 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | Mr K Eskerie of Sparke Helmore |
ORDERS
The application filed on 23 February 2017 is dismissed.
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 537 of 2017
| ATT17 |
First Applicant
| ATU17 |
Second Applicant
| ATV17 |
Third Applicant
| ATW17 |
Fourth Applicant
| ATY17 |
Fifth Applicant
| ATZ17 |
Sixth Applicant
| AUA17 |
Seventh Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 1 February 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. There are seven applicants who are a husband, his wife and their five children.
Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions, filed on 13 March 2018. The first applicant (applicant) first arrived in Australia on 11 January 2002 on an Electronic Travel Authority. On 18 June 2002, the applicant’s wife (second applicant) lodged an application for a protection visa, listing the applicant as her dependant. On 30 July 2002, a delegate refused to grant the protection visa. The former Refugee Review Tribunal (RRT) affirmed the delegate’s decision on 30 January 2003.[1]
[1] Court Book (CB) 282
On 27 February 2003, the applicants sought Ministerial intervention pursuant to s.417 of the Migration Act 1958 (Cth) (Migration Act), and on 22 August 2003, they were advised that the Minister had decided not to intervene.[2]
[2] CB 282
On 21 April 2006, the applicant departed Australia. He returned to Australia on 4 September 2014 on an Electronic Travel Authority. On 2 December 2014, the applicant departed Australia and returned on 21 December 2014.[3] He applied for a protection visa on 20 March 2015.[4]
[3] CB 282
[4] CB 227
Applicants’ claims
The applicant, a citizen of Malaysia, advanced the following claims in his protection visa application:[5]
a)he was a Malaysian citizen and supporter of the opposition leader, Anwar Ibrahim;
b)in 1996, the applicant and his wife opened a restaurant. The restaurant was eventually destroyed by the authorities because he supported Ibrahim and had pamphlets in the restaurant in support of Ibrahim;
c)he was involved in “the youth Islamic organisation” and when Ibrahim was “sacked” in 1998, they protested in the streets. The ruling government ordered the authorities to arrest whoever supported Ibrahim and subject them to caning and torture. He canvassed his support for Ibrahim when he was charged with sodomy and corruption;
d)he had been arrested “many times” and subjected to torture. Each time, he was released and warned to stay away from politics. Specifically, he was arrested in February 2001 and December 2002. He was severely tortured, starved and kept in a dark room until he agreed to stop supporting Ibrahim;
e)the police came in search of him in 2001, so he fled to New Zealand. Having subsequently returned to his home country, he fled to Australia in 2002. He returned to Malaysia afterwards, but fled again in January 2007 to the UK when the police came to his house looking for him and beat his wife and children;
f)the applicant last left Malaysia in 2014 stating he had to flee Malaysia before he and his family were “taken away”; and
g)if he returned to Malaysia, he would be arrested at the airport and falsely charged with sodomy because of his support for Ibrahim. His past political involvement was known to the police and if he was taken away, his wife and children would become homeless and destitute.
[5] CB 30
At an interview with the delegate on 22 April 2016, the applicant claimed that he became involved in politics in 2002 when he joined the People’s Justice Party (PKR). At one point, he was “head of the village” and was trained by his leader to receive donations in Setapak Jaya.[6] After returning to Malaysia in 2006, he donated some money to the PKR but had no active involvement in politics because he was scared of being arrested.[7]
[6] CB 286
[7] CB 287
As noted above, the second to seventh applicants are the applicant’s wife and dependent children whose claims for protection were wholly reliant upon those of the applicant.
Tribunal proceedings
On 12 May 2016, the applicant applied to the Tribunal for review of the delegate’s decision. On 8 December 2016, the applicant appeared before the Tribunal with the assistance of a Malay interpreter to give evidence and present arguments.
On 21 December 2016, the Tribunal sent a letter to the applicant, inviting him to comment on information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review (s.424A letter).[8] The applicant provided a response to the letter on 2 January 2017.[9] On 1 February 2017, the Tribunal affirmed the decision under review.
[8] CB 372 – 375
[9] CB 403 – 405
Tribunal decision
The Tribunal set out the relevant law[10] and the applicant’s claims and evidence.[11] It considered that the applicant had given inconsistent evidence in relation to when his restaurant was demolished,[12] when he joined the PKR, his role in the party[13] and when and why he was arrested.[14] The Tribunal also noted that the applicant gave vague evidence about what Anwar Ibrahim did after the 2013 elections.[15]
[10] at [2] – [7]
[11] at [25]
[12] at [31]
[13] at [32]
[14] at [35]
[15] at [34]
On the basis of the inconsistencies identified in his evidence, the Tribunal found the applicant not to be a credible witness.[16] In particular, based on the applicant’s inconsistent evidence in relation to when his restaurant was demolished, the Tribunal was not satisfied that it had been demolished for the reasons claimed.[17] As for the claims relating to political involvement, the Tribunal observed that the applicant’s evidence in relation to when he joined the PKR had varied by some eight years between the RRT hearing in 2002, the interview before the delegate and the Tribunal hearing.[18] The Tribunal found that the applicant’s answers as to whether he was an active member of the PKR after 2006[19] and whether he had been arrested and why[20] changed significantly over time.
[16] at [9]
[17] at [10]
[18] at [11]
[19] at [12]
[20] at [13]
The Tribunal accepted that the applicant returned to Malaysia for two months in September 2014[21] because he was worried about his wife and children and his wife was pregnant, but was not satisfied that the applicant feared returning to Malaysia because of the government, either in September 2014 or at the time of the Tribunal’s decision.[22] The Tribunal did not consider the applicant’s movement records to be consistent with someone who fled Malaysia or had a genuine fear of harm on return.[23]
[21] at [14]
[22] at [15]
[23] at [17]
The Tribunal considered a claim that the applicant had issues understanding the interpreter at the interview with the delegate.[24] It noted that the applicant had not raised any issues at the interview and that it had listened to the interview, observing that it seemed to flow in a way that was consistent with someone who understood the interpreter. The Tribunal considered the applicant’s evidence that the interpreter was from Indonesia and the related explanation provided in the response to the procedural fairness letter, but was not convinced on the evidence that there were any interpreting issues at the Departmental interview or that this was the reason why the applicant’s evidence was inconsistent.[25]
[24] at [16]
[25] at [16]
The Tribunal did not accept that the applicant had engaged in political activity, that he had the political profile claimed, that he had ever been detained, arrested, harassed or tortured, or that his restaurant had been demolished because of his political opinion.[26] The Tribunal did not accept that the applicant had to flee to the UK in January 2007 or that his wife and daughters faced harassment in Malaysia because of him.[27] On this basis, the Tribunal was not satisfied that the applicant would be arrested by the authorities if he returned to Malaysia, or that he would face charges or be jailed.[28]
[26] at [18]
[27] at [18]
[28] at [19]
The Tribunal did not accept that the applicant would face a real chance of persecution for the reasons claimed if he were to return to Malaysia[29] and found that the applicant did not meet the criterion in s.36(2)(a).[30] The Tribunal had regard to its anterior findings of fact in finding that the applicant would not face a real risk of significant harm on any of the bases claimed.[31] The Tribunal thus found that the applicant did not satisfy the criterion in s.36(2)(aa) and, as such, the second to seventh applicants did not satisfy the criteria in s.36(2)(b) or (c) for the grant of the visa.[32]
[29] at [20]
[30] at [21]
[31] at [22]
[32] at [23]
The present proceedings
These proceedings began with a show case application lodged on 23 February 2017. The applicants continue to rely upon that application. There are seven grounds in the application:
1.The Administrative Appeal Tribunal (AAT) erred in its judgment that the applicant evidence regarding demolition of restaurant.
2.The Administrative Appeal Tribunal denied the applicant procedural fairness by reaching adverse conclusion.
3.The Administrative Appeal Tribunal (AAT) erred in its judgment not accepting applicant explanation that he returned to Malaysia in 2014 for short time for the safety of his family particularly his pregnant wife.
4.The Administrative Appeal Tribunal (AAT) erred in its judgment not giving enough consideration on interpreter issued raise by the applicant and his daughter.
5.The Administrative Appeal Tribunal (AAT) erred in its judgment without properly applying relevant law.
6.The Administrative Appeal Tribunal made legal error even after accepting that the applicant may face hardship if decision be affirmed.
7.The Administrative Appeal Tribunal (AAT) in its judgment failed to use its reasoning in applying relevant act, rules and ministerial guidelines in consideration of provided facts and made legal error.
(errors in original)
In addition, the applicant relies upon an affidavit filed with his application which, in addition to setting out background facts, asserts that the Tribunal misapplied the Refugees Convention and complementary protection criteria.
I received as evidence the court book filed on 13 July 2017 and the affidavit of Monica Perotti, made on 13 March 2018. That affidavit deals with a certificate purportedly issued under s.438 of the Migration Act. The certificate is reproduced at CB 304. Exhibited to Ms Perotti’s affidavit is an envelope containing the documents purportedly covered by the certificate.
I invited oral submissions from the applicant this morning. He was supported by one of his daughters, who has apparently made her own claims for protection in a separate visa application and who has her own proceeding before this Court. The applicant explained his reasons for wishing to stay in Australia. I noted that his wife, the second applicant, had made her own protection claims in 2002, which had been rejected. I also noted that the protection claims now in issue concern the political situation in Malaysia, which has recently undergone substantial change.
Two of the applicant’s children have been born in Australia and his children are at various stages of education. The applicant enjoys the right to work and has started a car wash business here. He has formed strong links with Australia and has numerous reasons to wish to stay here. I invited the applicant to take advice on whether any other forms of visa might be available to him and his family. He told me that this was something he was himself pursuing.
The applicant did not, however, make submissions which advanced any legal issue arising from his application. As I explained to him, the assertions he makes in his application and supporting affidavit are general in nature. They are dealt with in the Minister’s submissions, with which I agree.
Grounds 1, 3 and 6
Grounds 1 and 3 can be read as contentions that the Tribunal’s findings in relation to, first, its assessment of the applicant’s evidence regarding the demolition of his restaurant and secondly, the explanation for his return to Malaysia in 2014, were unreasonable or illogical. Ground 3 is misconceived in that the Tribunal accepted the applicant’s explanation that he returned to Malaysia because he was worried about his wife and children.[33] Ground 6 contends that the Tribunal “made legal error even after accepting that the applicant may face persecution if decision be affirmed”. Whilst it is unclear what is meant by Ground 6, it appears in essence to be reiterate the contention that the Tribunal’s findings were unreasonable.
[33] at [15]
There is no substance to these grounds. This is not a case where there was an absence of a logical connection between the evidence and the Tribunal’s reasons.[34] As noted above, the Tribunal’s findings were based on the inconsistencies that it identified in the applicant’s evidence. Those findings[35] were open to the Tribunal on consideration of the evidence before it and for the reasons it gave.[36] In essence, Grounds 1, 3 and 6 do not rise above an agitation for impermissible merits review.[37]
[34] Minister for Immigration v SZMDS (2010) 266 ALR 367 at [51]
[35] at [11] and [16]
[36] at [9]
[37] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang)
Ground 2
Ground 2 contends that the Tribunal “did not follow procedural fairness by reaching adverse conclusion”. There is nothing on the material before the Court to indicate that the Tribunal breached its procedural fairness obligations, as exhaustively stated in Part 7, Division 4 of the Migration Act in relation to the matters dealt with therein. In particular, the material before the Court indicates that the applicant was given a real and meaningful opportunity to present arguments and evidence at a hearing before the Tribunal, he was provided opportunities to comment on inconsistencies between his evidence to the delegate and the Tribunal at the hearing,[38] and through the s.424A letter (to which he responded), and his responses were taken into account by the Tribunal.[39]
[38] see, for example [31] and [32]
[39] at [46]
To the extent that Ground 2 cavils with the Tribunal’s adverse credibility findings, those findings[40] were findings of fact for the Tribunal to make par excellence[41] and were open to it on the evidence.[42] Ground 2 is not made out.
[40] at [9]
[41] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J
[42] at [10] – [17]
Ground 4
Ground 4 contends that the Tribunal did not give “enough consideration on interpreter issued (sic) raised by the applicant and his daughter.” First, it is well established that the weight to be given to the applicant’s claims and evidence is a matter for the Tribunal to assess as part of its fact-finding function.[43] In any event, the Tribunal gave sufficient consideration to the “interpreter issue” at [16] of its decision, noting that it had listened to the Departmental interview and observed that the interview flowed in a way that was consistent with someone who understood the interpreter. Further, the Tribunal considered the applicant’s response to the procedural fairness letter, noting that it “remained vague and failed to provide any clear evidence of interpreter error”. Moreover, in reaching a conclusion on this issue, the Tribunal took into account the various occasions on which the applicant’s evidence was inconsistent.[44] The Tribunal’s rejection of the applicant’s assertion on this issue was open to it.
[43] Randhawa v Minister for Immigration (1994) 124 ALR 265 at 278; Wu Shan Liang at 281 – 282
[44] at [16]
To the extent that the Tribunal drew adverse inferences from inconsistent answers between the Departmental interview and the Tribunal hearing, the applicant was afforded a number of opportunities to explain the inconsistencies, but failed to satisfy the Tribunal that he was a credible witness.[45] No error arises and Ground 4 is not made out.
[45] at [9]
Grounds 5 and 7
Ground 5 contends that the Tribunal “erred in its judgment without properly applying relevant law.” Ground 7 contends that the Tribunal failed to “use its reasoning in applying relevant act, rules and ministerial guidelines in consideration of provided facts and made legal error.” Further, as noted above, in the applicant’s affidavit filed with the application to show cause, the applicant contends that the Tribunal erred in its application of the law.
The Tribunal properly set out the relevant law[46] and applied it to the applicant’s claims,[47] finding that he did not satisfy the criteria in ss.36(2)(a) or (aa).[48] Further, the Tribunal’s findings were open to it and do not reveal any misapplication of the relevant law.
[46] at [2] – [7]
[47] at [18] – [20]
[48] at [21] and [23]
Failure to consider evidence
In the affidavit filed with the application to show cause, the applicant also contends that the Tribunal “did not consider [his] evidence presented or how [he] and [his] family suffered harm in Malaysia”. The applicant has not particularised the evidence allegedly ignored. Whilst a failure to consider a critical piece of evidence may give rise to jurisdictional error,[49] the Tribunal is not required to “refer to every piece of evidence and every contention made by an applicant in its written reasons.”[50] The material before the Court does not reveal any failure to consider the applicant’s claims or evidence.
[49] Minister for Immigration v SZSRS [2014] FCAFC 16 at [56]
[50] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [46]
Non-disclosure certificate
The Minister’s submissions also raise the issue of the non-disclosure certificate.
The Minister concedes that the certificate was not validly issued.
While it does not appear that the Tribunal disclosed the existence of the certificate to the applicants, the Tribunal did disclose the only information covered by the certificate which had any bearing on the Tribunal review. That information was contained in movement records detailing the applicant’s arrival in and departure from Australia at various times. The information was referred to in the decision of the delegate, which the applicants provided to the Tribunal.
The Tribunal invited comment on the information in a letter issued pursuant to s.424A of the Migration Act. The applicants commented on that information. The Tribunal dealt with the information, the invitation to comment and the response, in its decision. The Tribunal took no action in relation to the disclosed information, in accordance with ss.438(4) and 440 of the Migration Act. It is reasonable to conclude from that that the Tribunal did not act on the certificate.
Neither was there any procedural unfairness in relation to any information in the documents covered by the certificate. These matters are discussed in more detail in the Minister’s submissions concerning the certificate. I agree with those submissions.
While not pleaded by the applicant, the Minister properly brought to the Court’s attention a certificate issued by a delegate of the Minister pursuant to s.438 of the Migration Act (certificate)[51] in respect of three documents contained in the file sent by the Minister’s Department to the Tribunal. The basis for the issue of the certificate was that “the disclosure of this information would be contrary to the public interest because the aforementioned folios contain information relating to an internal working document and business affairs”.[52]
[51] CB 304
[52] CB 304
The documents covered by the certificate relate to: (a) a disclosure checklist; (b) identification document relating to the applicants; and (c) the applicant’s movement records. Having regard to the decision in MZAFZ v Minister for Immigration[53] (MZAFZ), the Minister concedes that the s.438 certificate was not validly issued and that the Tribunal did not disclose the existence of the certificate to the applicants. However, these matters by themselves do not imply that the applicants were denied procedural fairness.
[53] [2016] FCA 1081
In regards to documents (a) and (b) , the disclosure of the documents could not have made any difference to the Tribunal’s task,[54] in circumstances where the documents were of no relevance, or at best “passing contextual reference” to the Tribunal’s decision.[55] Specifically, the document relating to the disclosure checklist was not “adverse to the applicant, relevant or significant to the decision to be made”.[56] Nor were the documents relating to the identity of the applicants adverse to the applicant. The applicants’ identification was not an issue before the Tribunal and in any event nothing in the documents undermined the applicants’ claims as to their identity.
[54] BEG15 v Minister for Immigration & Anor [2016] FCCA 2778 at [63]-[68] (BEG15)
[55] AVO15 v Minister for Immigration [2017] FCA 566 (AVO15) at [91]
[56] BEG15 at [65]
Turning to document (c), being the applicant’s movement records, the records were expressly referred to at [14] and [17] of the Tribunal’s decision record. Thus, document (c) was relied upon by the Tribunal in its reasons. However, for the reasons that follow, no jurisdictional error arose as a result.
First, the contents of the movement records were put to the applicants in the s.424A letter,[57] particularised as “movement records indicate you arrived in Australia in September 2014 and departed and returned December 2014.” This being so and in circumstances where the Tribunal did not issue a direction under s.438(4), an inference is open that the Tribunal did not act upon the invalid certificate.
[57] CB 374
In any event, given that the material information in the movement records was revealed to the applicants and their comment invited on it, which comments were received on 2 January 2017[58] and taken into account by the Tribunal, there was no denial of procedural fairness. In those circumstances, the failure to disclose the certificate cannot be said to have affected the manner in which the applicants conducted their case;[59] “the applicant lost no opportunity to advance his case and no detriment was shown”.[60]
[58] CB 405
[59] SZVDCv Minister for Immigration [2018] FCAFC 16
[60] CIW15 v Minister for Immigration & Anor [2017] FCCA 1206 at [76]. See also AVO15 at [85] and [91] and Re Minister for Immigration; ex parte Lam [2003] HCA 6 at [38]
Moreover, the information in the movement records was not in dispute, as is apparent from the applicants’ response to the procedural fairness letter.[61] In SZVVI & Ors v Minister for Immigration & Anor,[62] Judge Manousaridis considered that where the substance of the certificate documents had been disclosed and the applicant accepted that information, the Tribunal “made no jurisdictional error by not disclosing, more than it did in its letter dated 8 October 2014, the contents of the documents covered by the certificates and the certificates themselves”. [63] That reasoning applies equally to the present case.
[61] CB 405
[62] [2017] FCCA 546
[63] at [43]. See also SZVDCv Minister for Immigration [2016] FCA 1382 at [12]
In any event, in the above circumstances, knowledge of the existence of the certificate could not have made any difference to the outcome of the review.[64] As such, no practical injustice arose from any error in the Tribunal’s approach to the certificate.
[64] BEG15 at [68]
Conclusion
I conclude that the decision of the Tribunal in this case is not affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs, fixed in the sum of $5,800. The applicant raised several questions concerning the amount of the costs and payment arrangements but I confirmed that the amount sought by the Minister was a fair and reasonable assessment of party and party costs.
I will order that the first and second applicants pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 21 March 2018
0
17
2