Auw18 v Minister for Immigration

[2019] FCCA 1809

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUW18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1809

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Protection visa – review application – whether the Tribunal made a jurisdictional error – no jurisdictional error made out – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.36(2)(a)

Cases cited:

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265

Applicant: AUW18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 476 of 2018

Judgment of: Judge Humphreys

Hearing date: 27 June 2019

Date of Last Submission: 27 June 2019

Delivered at: Parramatta

Delivered on: 27 June 2019

REPRESENTATION

The Applicant appeared by telephone

Solicitors for the Respondents: Mr Hillyard, Sparke Helmore Lawyers

ORDERS

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

2. The applicant’s application for an adjournment is refused.

3. The application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 476 of 2018

AUW18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EXTEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. The applicant is a Malaysian man in his early 20s. The applicant arrived in Australia on 13 November 2016 as the holder of an Electronic Travel Authority visa. The applicant applied for a Protection visa on 6 February 2017. The delegate of the Minister refused the application on 21 July 2017.

2. The applicant sought a review of the refusal decision in the Administrative Appeals Tribunal (“the Tribunal”). After a hearing held on 9 January 2018, the Tribunal affirmed the delegate’s decision on 23 January 2018. The applicant now seeks judicial review of the Tribunal’s decision.

Applicant’s Claims

1. The applicant claims to be a Muslim who had an illicit sexual relationship with a girl from his village. The applicant claims that the girl’s family, the police and an Islamic group are searching for him and will torture and/or imprison him if they find him.

The Tribunal Decision

1. The applicant’s general background is set out in paragraphs 8 to 14 of the Tribunal. The Tribunal noted at paragraph 14 that there were gaps and inconsistencies in the information provided and it was not satisfied that the picture that emerged was completely reliable. At paragraph 17 the Tribunal was satisfied of the applicant’s identity and the fact that he was a Malaysian national.

2. At paragraph 22 the Tribunal noted the claims that the applicant had a sexual relationship with an 18 year old woman, Enda, in his village. At paragraphs 23 to 26, the Tribunal considered the evidence put forward by the applicant. The Tribunal commented on the lack of personal information the applicant was able to provide about Enda, her family background, and that he currently had no contact or other details about her.

3. At paragraph 26, the Tribunal concluded that the applicant, in fact, had no serious relationship with Enda, but rather that the applicant has advanced claim as a vehicle for presenting protection claims. The Tribunal concluded the applicant was never in an intimate or serious relationship with Enda, or that he was perceived, by her family or others, as being in such a relationship.

4. Paragraphs 27 to 31 deal with the discussion of the inconsistencies in the evidence and the lack of material that the Tribunal would have expected for the applicant to be able to detail had he been in such a relationship as claimed.

5. Paragraphs 33 to 36 are the summary of the findings. They suggest that the applicant was not in a relationship and did not flee in May 2016 due to threats of capture, torture, detention, criminal charges, imprisonment or death. The Tribunal did not accept that the applicant cannot return safely to Malaysia. On the basis of these findings, the Tribunal rejected the claim for protection in that the applicant does not meet the criteria under either s 36(2)(a) of the Migration Act 1958 (Cth) or the criteria under s 36(2)(AA) of the Migration Act 1958 (Cth) in relation to complementary protection.

Grounds of Appeal

1. Three grounds of appeal are set out in the application filed with the Court:

   (1) to review the application;

   (2) there is an error in the decision;

   (3) it is requested to send back my application to the Administrative Appeals Tribunal.

2. At the hearing, the applicant appeared and represented himself with the assistance of a Pashtun interpreter. The applicant initially applied for an adjournment of the hearing. This was refused. When the applicant was asked what he wanted to tell the Court, he said:

   My age is not much. I possibly did not understand the questions that I was asked and gave the wrong answers.

3. The applicant said he did not have anyone to represent him. The applicant stated that he was requesting to the Court that his heart was telling him that he would like to live in this country. The applicant said he was estranged or removed from his parents, who were not talking with him, because of what had happened in his country. The applicant said he could not go back to his country and that was why he was asking the Court to rule in his favour. Following the submissions from the respondent, the applicant told the Court he had nothing more to add in reply.

Consideration of the Grounds of Appeal

1. Grounds 1 and 3 simply relate to the purpose of the application and are not proper grounds of review. Ground 2 is a bald assertion and is not accompanied by any particulars as to any perceived error in the decision. I am reasonably satisfied the Tribunal correctly instructed itself as to the relevant criteria for the assessment of a refugee protection application and/or complementary protection, and I note in this regard in particular paragraphs 37 to 44 of the Tribunal’s decision.

2. I am satisfied the Tribunal considered the evidence offered by the applicant. The applicant had a real and meaningful opportunity to provide additional evidence to strengthen his claims. There is no evidence of any procedural or any other statutory breach by the Tribunal of the requirements under the various sections.

3. Based on the inconsistencies within the information offered by the applicant in his written and oral claims, as well as the minimal information that was available to them, the Tribunal appropriately assessed the evidence and came to a conclusion that was open to them to reject his claims on credibility grounds. See Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at [278]. There was no legal irrationality or unreasonableness in the conclusions the Tribunal came to. There is no jurisdictional error apparent in the decision of the Tribunal.

Conclusion

1. The application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:  

Date:  29 July 2019