AUC17 v Minister for Immigration

[2017] FCCA 2110

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUC17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2110

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.36(2)
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases Cited:
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

First Applicant: AUC17

Second Applicant: AUD17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 539 of 2017

Judgment of: Judge Emmett

Hearing date: 30 August 2017

Date of Last Submission: 30 August 2017

Delivered at: Sydney

Delivered on: 30 August 2017

REPRESENTATION

First Applicant appeared in person with a Malaysian Interpreter

Solicitors for the Respondents: Ms Jennifer Strugnell (Minter Ellison)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 539 of 2017

AUC17

First Applicant

AUD17

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 23 February 2017, the applicants filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 30 January 2017 (“the Tribunal”).

2. The first applicant (“the Applicant”) confirmed to the Court that she appeared on behalf of the second applicant and confirmed that the claims of the second applicant were dependent on her claims.

3. At the request of the first respondent, the matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), on the basis that the applicants’ application did not raise an arguable case for the relief sought.

4. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

5. Relevantly, r.44.13 of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

6. The Applicant was unrepresented before the Court this morning, although had the assistance of a Malaysian interpreter.

7. On 15 June 2017, the applicants attended a directions hearing before a registrar of the Court. The applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support, by 28 June 2017. On that occasion, the applicants were also provided with the contact details of legal service providers and translating and interpreting services.

8. The Applicant confirmed that she had not filed any further documents, either in accordance with those directions or otherwise. 

9. The Applicant confirmed that she relied on the grounds of review stated in her application for judicial review, filed on 15 June 2017, which are as follows:

   “1. Give more chance to explain

   2. Seeking a judicial review for Administrative Appeals Tribunal decisions.”

   (Errors in original)

10. The grounds of the application were interpreted for the Applicant and she was invited to say whatever she wished in support of the grounds.

11. I explained to the Applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider her claims and make different factual findings or reach different conclusions.  I explained to the Applicant that the only issue before this Court was whether or not the decision of the Tribunal was made according to law.

12. I further explained that this Court has no power to interfere with the decision of the Tribunal, unless it is satisfied that the decision of the Tribunal is affected by a mistake that goes to its jurisdiction. I explained that mere disagreement with the findings and conclusions of the Tribunal rarely, by itself, discloses a mistake that goes to the Tribunal’s jurisdiction.

13. The Applicant had nothing further to say in support of the grounds of her application or in support of her application, generally. 

14. The grounds do not disclose any error capable of review by this Court, and plainly, the grounds by themselves do not raise an arguable case for the relief sought. 

15. The Applicant’s complaint, such that it is, that the Tribunal did not believe her would appear to be no more than a disagreement with the findings and conclusions of the Tribunal. The Applicant’s complaint invites merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

16. In considering whether there was any jurisdictional error apparent on the face of the Tribunal’s decision record, I have had regard to the Applicant’s claims.

17. The applicants are citizens of Malaysia, who arrived in Australia on 3 March 2014. 

18. On 26 May 2014, the Applicant applied for a Protection visa. Her husband, the second applicant, was included in her application as a member of the same family unit and he raised no claims of his own.

19. On 4 May 2015, a delegate of the first respondent (“the Delegate”) refused to grant the Applicant a Protection visa, on the basis that the Applicant was not a person to whom Australia has protection obligations. 

20. On 29 May 2015, the applicants lodged an application for review of the Delegate’s decision with the Administrative Appeals Tribunal, and appeared at a hearing before the Tribunal on 8 December 2016.

21. The Tribunal’s decision was summarised in the first respondent’s submissions as follows:

    “9. The Tribunal rejected the applicants' claims on the basis that they were not credible witnesses (CB 211: [42]). The Tribunal made the following findings:

    (a) The applicant provided inconsistent evidence about when she moved (CB 210: [38]), and where she moved (CB 210: [39]).

    (b) The applicant was unable to explain why she included an address in her application where she had lived for four or eight months, but excluded an address where she had lived for four years (CB 210-211: [39]). As a result, the Tribunal found it ‘difficult to accept’ that the applicants lived at that address for four years or that the alleged report of a theft at the back of the property or the subsequent report to the police ever occurred (CB 210-211: [39]).

    (c) The timing of their move to the second house was not consistent with the timing and sequence of events in their claims, as they moved in July 2013 but they claimed that the alleged report to the police of the first incident did not occur until late 2013 (CB 210-211: [39]).

    (d) The applicant's claim to have been followed to the new house was not in her written statement, and the Tribunal did not accept that she would have omitted it had it occurred (CB 211: [40]).

    (e) The applicant's evidence regarding the police reports and the threats was speculative, vague and unconvincing and the second applicant's evidence merely repeated the speculation (CB 211: [41]).

    (f) The applicant was unable to talk at hearing about the incident in which she was followed to the second house because she and the second applicant were making up evidence as they went along and were not talking about incidents which actually occurred (CB 211: [41]).

    10. For these reasons, the Tribunal rejected the entirety of the applicant's factual claims (CB 211: [42]) and found the applicants did not satisfy the refugee criterion (CB 211-212: [43]-[44], [46]). For the same reasons, the Tribunal found that the applicants did not satisfy the complementary protection criterion (CB 212: [45]-[46]).”

22. As stated above, the Tribunal found the Applicant’s evidence about police reports and threats to be speculative, vague and unconvincing, and the second applicant’s evidence to merely repeat that speculation.

23. The Tribunal found the Applicant was unable to talk about her claim that she was followed to a new house even though, according to her evidence, this was actual proof that the risk of harm to her had increased. The Tribunal also found that the Applicant was unable to elaborate on her claim because she and the second applicant had given their evidence very little consideration beforehand. The Tribunal also found that the applicants were not talking about events that had occurred, but were making up evidence as they went along. 

24. The Tribunal then found the Applicant was unable to discuss the other alleged threats at the Tribunal hearing in any detail, again, because she had given those claims very little consideration beforehand and was not talking about true events but was making up her evidence as she went along.

25. The Tribunal’s decision record makes clear that the Tribunal comprehensively rejected the applicants’ claims because the Tribunal found that the applicants were not credible witnesses.

26. The Tribunal did not accept that if the applicants returned to Malaysia now, or in the reasonably foreseeable future, that there is a real chance they will be persecuted for any Convention reason. 

27. The Tribunal concluded, based on the evidence and material before it, that the applicants did not satisfy the refugee criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) or the complementary criterion in section 36(2)(aa) of the Act.

28. Accordingly, the Tribunal affirmed the decision under review. 

29. The Tribunal’s findings and conclusions would appear to be open to it, on the evidence and material before it, and for the reasons it gave.

30. While I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the Applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error and none is apparent on the face of the decision record.

31. The Tribunal referred to the relevant law in affirming the decision under review.

32. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed.

33. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules, and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 23 February 2017, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 7 September 2017