AWM18 v Minister for Home Affairs
[2019] FCCA 3082
•1 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWM18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3082 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – failure to disclose a reasonable cause of action – application dismissed. |
| Legislation: Migration Act 1958 (Cth) ss.5H, 476(1). |
| Cases cited: MZAJQ v Minister for Immigration and Border Protection [2015] FCCA 593 |
| Applicant: | AWM18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 478 of 2018 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 23 October 2019 |
| Date of Last Submission: | 23 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 1 November 2019 |
REPRESENTATION
| Advocate for the applicant: | In person |
| Solicitors for the applicant: | None |
| Advocate for the respondents: | Ms Roberts |
| Solicitors for the respondents: | Mills Oakley |
ORDERS
The applicant’s application filed 26 February 2018 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 478 OF 2018
| AWM18 |
Applicant
and
| MINISTER FOR HOME AFFAIRS |
First respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (“the tribunal”) on 8 February 2018, which affirmed the decision of a delegate of the first respondent, the Minister for Home Affairs (“the Minister”), made on 4 July 2017 to refuse to grant the applicant’s application for a protection (class XA) visa (“the visa”).
Procedural background
On 4 July 2017, the Minister refused to grant the applicant’s application for the visa.[1]
[1] Court book pages 64 to 82.
On 14 July 2017, the applicant lodged an application for a review of the Minister’s decision with the tribunal.[2]
[2] Court book pages 88 and 89.
The applicant was invited to attend a hearing on 7 February 2018 before the tribunal to give evidence and present arguments in relation to his application.[3] The applicant attended the hearing and was assisted by a Malay interpreter.[4]
[3] Court book pages 108 to 110.
[4] Court book pages 97 and 98.
On 8 February 2018, the tribunal affirmed the Minister’s decision not to grant the applicant the visa.[5]
[5] Court book pages 116 to 121.
The applicant’s application was listed for a show cause hearing before me pursuant to orders made by consent on 23 January 2019.
The first respondent seeks that the application be dismissed on the grounds that it fails to disclose an arguable case.
The applicant’s claims
The applicant is a male citizen of Malaysia who arrived in Australia on 28 July 2016 on an electronic travel authority visa.[6]
[6] Court book pages 14, 21 and 64.
The applicant lodged a protection visa application on 22 March 2017 in which he claimed that he was an activist for the Sabah Sarawak Union United Kingdom (“SSU-UK”), a group claiming rights over North Borneo.[7]
[7] Court book pages 1 to 37.
The applicant claimed:
a)he collected signatures for a petition to the British Government to review the validation of the 1963 Malaysian Agreement;[8]
b)SSU-UK volunteers had been threatened by the Malaysian government and he had left Malaysia to escape poverty, ‘improve [his] family’s life’[9] and to become ‘part of a human rights organisation in [an]other big country like Australia’;[10]
c)he could not improve his life if he was to return to Malaysia due to financial hardship and lack of education;[11]
d)he had to provide financial assistance to his aging parents as they could no longer work and live in a rural area without access to sealed roads, health care and the like;[12]
e)criminal activities in Sabah had increased since illegal immigrants had been given citizenship;[13]
f)there are no fair elections in Malaysia as the government pays for votes;[14] and
g)he was Dusun, a native race of Borneo, and a Christian and as a native of North Borneo Sabah, he has been discriminated against.[15]
[8] Court book page 32 at paragraph [89].
[9] Court book page 32 at paragraph [89].
[10] Court book page 32 at paragraph [89].
[11] Court book page 32 at paragraph [90].
[12] Court book page 32 at paragraph [90].
[13] Court book page 33 at paragraph [91].
[14] Court book page 33 at paragraph [92].
[15] Court book page 39 at paragraphs [1] and [2].
In addition to the information contained in his application for a protection visa, the applicant also submitted detailed written submissions dated 10 March 2017.[16] This letter provided further information regarding his claims, the difficulties he had experienced in Sabah and Sarawak, the activities he had engaged in to promote the human rights of the native people of that region and as his reasons for coming to and remaining in Australia.[17]
[16] Court book page 39 to 43.
[17] Court book page 39 to 43.
The tribunal’s reasons
The tribunal set out the criteria for a protection visa at paragraphs [4] to [8] of its decision record.[18] It also summarised the applicant’s claims as set out in his protection visa application and associated documents at [11] to [12] of its decision record.[19]
[18] Court book page 117.
[19] Court book page 118.
During the hearing, the tribunal noted that the applicant said the following:
a)‘…the real reason he left Malaysia in July 2016 was because he had served a prison sentence from 2009 to 2015 in a gaol in Kota Kinabalu for manslaughter and was afraid the victim’s son may harm him’[20]; and
b)‘he came here knowing nothing, somebody helped him with the (application) form, and he does not understand English.’[21]
[20] Court book page 118 at paragraph [13].
[21] Court book page 118 at paragraph [21].
The tribunal expressed concerns about this as it did not explain why he had failed to tell the person who was helping with his application about his fears relating to his criminal history in Malaysia.[22] Additionally, the tribunal found aspects of the applicant’s oral evidence about his alleged past criminal matters in Malaysia vague and lacking in detail and was ‘internally contradictory at times and confused’.[23]
[22] Court book page 118 at paragraph [13].
[23] Court book page 118 at paragraph [13] and page 119 at paragraph [13].
For each of these reasons, the tribunal did not accept that the applicant had been charged and convicted of manslaughter, had spent six years in prison, or feared family members of the victim.[24]
[24] Court book page 119 at paragraph [14].
The applicant said during the hearing that he left Malaysia as the salaries were too low in comparison with those in Kuala Lumpur.[25]
[25] Court book page 119 at paragraph [15].
The tribunal also noted that the applicant stated in his visa application he left Malaysia to improve his family’s life and get out of poverty, and would not be able to improve his life if he were to return to Malaysia.[26]
[26] Court book page 119 at paragraph [15].
The tribunal accepted the applicant may have left Malaysia for financial reasons (among other reasons) and might have difficulty in finding work on his return to Malaysia.[27] However, it noted the applicant’s evidence that he had worked for many years in Malaysia prior to his departure and had family members in Malaysia (and Singapore) who could assist him financially on his return.[28]
[27] Court book page 119 at paragraph [16].
[28] Court book page 119 at paragraph [16].
For these reasons, the tribunal concluded that it did not accept the applicant ‘would face a real chance of serious harm in the form of being unable to subsist on return Malaysia’.[29]
[29] Court book page 119 at paragraph [16].
The tribunal considered the applicant’s claims relating to his religion and accepted that the applicant:
a)was a Christian;[30]
b)had practiced his religion prior to leaving Malaysia, and would continue to do so on his return to Malaysia;[31] and
c)there may be an increasing number of Muslims in Sabah.[32]
[30] Court book page 119 at paragraph [17].
[31] Court book page 119 at paragraph [17].
[32] Court book page 119 at paragraph [17].
However, after considering the country information issued by the Department of Foreign Affairs and Trade (“DFAT”) and the applicant’s own evidence that he had not experienced any problems in Malaysia as a Christian, the tribunal found ‘remote the chance the applicant would face serious harm on religious grounds on return to Malaysia.’[33]
[33] Court book page 118 at paragraph [18] and page 120 at paragraphs [18] and [19].
The tribunal also considered the applicant’s claim that Sabah had experienced an increase in violence perpetrated by illegal immigrants with fake identity cards.[34] It noted the applicant did not make any reference to this claim at the hearing, and further, that he said he had not read the application form after it was prepared by someone on his behalf.[35]
[34] Court book page 120 at paragraph [20].
[35] Court book page 120 at paragraph [20].
On the basis of the limited information before it, the tribunal concluded that it was not satisfied the applicant faced a well-founded fear of serious harm as a result of an increased number of immigrants or with respect to increased crime in Sabah on return to Malaysia.[36]
[36] Court book page 120 at paragraph [20].
After considering the applicant’s claims ‘individually and cumulatively’,[37] the tribunal concluded it was not satisfied the applicant faced a real chance of persecution in Malaysia for a prescribed reason.[38] For that reason, it held the applicant did not meet the criteria of a refugee within the meaning of section 5H of the Migration Act 1958 (Cth) (“the Act”).[39]
[37] Court book page 120 at paragraph [21].
[38] Court book page 120 at paragraph [21].
[39] Court book page 120 at paragraph [22].
The tribunal also concluded the applicant did not satisfy the criterion under the complementary protection provisions.[40]
[40] Court book page 120 at paragraphs [23] to [24].
Based on the above reasoning, the tribunal concluded the applicant was not a person in respect of whom Australia had protection obligations and affirmed the Minister’s decision not to grant the applicant a protection visa.[41]
[41] Court book page 121 at paragraphs [25] to [28].
The present application
As stated above, orders were made by consent on 23 January 2019 which:
a)permitted the applicant to file and serve any amended application with proper particulars of the grounds and written submissions 28 days prior to the hearing; and
b)provided for the application to be listed for a show cause hearing.
Notwithstanding these orders, the applicant did not file any amended application, nor did he better particularise his application or file any written submissions.
Rule 44.12 of the Rules relevantly provides:
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.
Rule 44.13 of the Rules further 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.
At the hearing before me, the applicant appeared on his own behalf and was assisted by an interpreter. At the commencement of the hearing, I asked the applicant to explain in his own words, the error of law made by the tribunal for which he sought judicial review. Understandably, given that he was self-represented, and without meaning any criticism of him, the applicant struggled to answer this question.
I invited the applicant on a number of occasions to explain what error he considered had been made in the tribunal’s decision. In response, the applicant repeatedly said that there had been no mistake on the part of the tribunal.
When invited to make any other submissions in support of his application to this court, the applicant asked if he could make a fresh application rather than the application which had been lodged containing, what he said, were the wrong reasons.
At its highest, in having regard to the submissions made in these proceedings and the grounds of the application set out above, it appeared that the applicant was making the following assertions:
a)he sought assistance from others to lodge his initial visa application as he did not speak English;
b)inaccurate claims were made in the application which he did not read or approve and this ultimately affected his prospects of being granted a visa;
c)it was unfair that his request for an extension of time to provide further evidence at the hearing was not granted; and
d)the tribunal did not consider his individual circumstances, but rather relied on information from the Royal Malaysian Police and DFAT to decide the matter.
In considering the applicant’s application, I have had regard to the fact that he represented himself, that he does not speak English and that the legal process in which he is involved is one which is foreign to him.
However, the orders made by consent on 23 January 2019, some 9 months prior to this hearing, provided the applicant with the opportunity to file an amended application with proper particulars of any grounds of review upon which he intended to rely and to provide written submissions. The applicant did neither of those things.
It was submitted by the respondent that, as the applicant had only sought a writ of certiorari for the tribunal’s decision to be quashed, he failed to properly invoke the court’s jurisdiction under section 476(1) of the Migration Act 1958 (Cth) and therefore his application is deficient. Leaving aside that issue, I have considered the application on the basis of the applicant’s claims as articulated above.
Grounds of review
The applicant’s application identified the following ‘grounds of application’:[42]
1)Application for protection was made to seek protection as I have well-founded fear for my life in Malaysia upon return to my home country.
2)I made an application to DIBP on 21st March 2017 to seek protection in Australia and application was refused by DIBP case officer stating I don’t meet requirement for visa grant.
3)Application was lodged for review with AAT and I was called for haring to provide evidences before AAT member. I do not speak English and hearing was conducted with presence of an interpreter and decision was made by AAT to affirm decision made by DIBP. I strongly believe that AAT has made an error in law while deciding on my matter.
4)AA (sic) has refused my request to provide me extension to give them new and old evidences to support my visa application and AAT member has used information available to them from Royal Malaysian Police and DFAT to decide on my matter. I believe this is unfair procedure when tribunal officer ignored that fact that individuals could be affected by unique circumstances and should have considered my request to provide documents to support my visa application.
5)I along with other local people have been treated unfairly by illegal immigrants and we have been forced to leave our country. I have been treated differently in my home country and I have genuine fear for my life in Malaysia upon return. I have been an activist and due to lack of evidences I was unable to provide that information and that was the main reason an extension was requested to provide information.
6)I would like to apply FCC to seek justice on my matter as AAT has made an error in law while refusing to give me extension and not considering individual case and relied on information from Royal Malaysian Police.
7)I would like to request to FCC to set aside old orders and replace by new orders and give direction to AAT to consider my matter.
[42] Applicant’s application filed 26 February 2018 at page 3.
Ground one does no more than describe the broad basis of the applicant’s application for a protection visa.[43] Ground two simply records the process undertaken by the applicant in seeking a protection visa.[44]
[43] Court book page 3 at paragraph [1].
[44] Court book page 3 at paragraph [2].
These grounds do not assert, nor can they be properly understood to be, anything more than a statement of procedural steps taken by the applicant. Thus, grounds one and two do not disclose an arguable case of jurisdictional error.
Ground three does little more than broadly assert that the applicant believes that the tribunal ‘made an error of law while deciding on my matter’.[45] Without further particulars, it is difficult to understand the nature of the error alleged by the applicant. As stated above, and without being critical of the applicant, the applicant was unable to articulate any such error at the hearing, and on a number of occasions indicated that he did not believe the tribunal had made an error.
[45] Applicant’s application filed 26 February 2018 page 3 at paragraph [3].
A fair reading of the tribunal’s reasons shows that it considered the applicant’s claims as made in his initial visa application and those raised in the hearing before it.
In the absence of any further particulars, ground three does not disclose an arguable case of jurisdictional error.
By ground four, the applicant suggested he sought an extension of time to provide further information which was not granted. There is nothing in the material before this court to indicate that the applicant requested an extension of time or that the tribunal refused any such request.
The refugee hearing record indicates that the applicant attended a hearing before the tribunal on 7 February 2018 which commenced at 9:42am and concluded at 10:39am.[46]
[46] Court book pages 108 to 110.
The applicant was given notice of this hearing by letter dated 15 December 2018.[47]. He signed and returned the response to hearing invitation form dated 12 January 2018.[48] There is no evidence in any of this material that the applicant sought an extension of time in which to provide any additional evidence.
[47] Court book pages 97 to 102.
[48] Court book pages 104 to 106.
Moreover, the decision record itself does not indicate that a request for an extension of time was made by the applicant.[49] There is no evidence before the court as to any such request being made by the applicant.
[49] Court book pages 116 to 121.
Ground four also suggests that the tribunal acted in error by relying upon information from the Royal Malaysian Police and DFAT and failed to have regard to the applicant’s particular circumstances.
The tribunal was entitled to have regard to country information. No error is disclosed. Moreover, there was no reference to the Royal Malaysian Police in the tribunal’s reasons.
Ground four does not disclose an arguable case of jurisdictional error.
Ground five simply restates part of the applicant’s claims as contained in his visa application and associated documents, namely that he and other locals had been treated unfairly by illegal immigrants, that he had a genuine fear for his life in Malaysia, and that he was an activist.[50] It also refers to a refusal of an extension to provide further information.[51]
[50] Applicant’s application filed 26 February 2018 page 3 at paragraph [5].
[51] Applicant’s application filed 26 February 2018 page 3 at paragraph [5].
For the reasons set out above in relation to ground four, to the extent that ground five relies on a claim of a refusal to grant an extension, there is no evidence that such a request was made. Ground five therefore cannot succeed on that basis. Ground five otherwise does not identify an arguable case of error of law.
Ground six also refers to a refusal to grant an extension and to that extent I refer to and repeat my comments above. To the extent that ground six refers to the tribunal relying upon information from the Royal Malaysian Police, there is no reference in the tribunal’s reasons to any such information.[52] Ground six does not disclose an arguable case of jurisdictional error.
[52] Court book pages 116 to 121.
Ground seven does not identify any error of law and simply states what the applicant is seeking, namely to ‘set aside the old orders and replace by new orders and give direction to AAT to consider my matter.’[53] Ground seven therefore does not disclose an arguable case of jurisdictional error.
[53] Applicant’s application filed 26 February 2018 at paragraph [7].
As noted by Judge Whelan in MZAJQ v Minister for Immigration and Border Protection [2015] FCCA 593 and Judge Smith in SZUTB v Minister for Immigration and Border Protection and Anor [2015] FCCA 1383 (“SZUTB”), the Court’s power under rule 44.12(1)(a) of the Rules is in the form of summary dismissal and ought to be exercised with caution.[54]
[54] MZAJQ v Minister for Immigration and Border Protection [2015] FCCA 593 at [13]; SZUTB v Minister for Immigration and Border Protection and Anor [2015] FCCA 1383 at [10].
As noted by French CJ and Gummow J in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118; 84 ALJR 612; 269 ALR 233:
The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. …
More recently in Batistatos v Roads and Traffic Authority (NSW) Gleeson CJ, Gummow , Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde which included the following …:
… Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way (emphasis added). [55]
[55] Spencer v Commonwealth [2010] HCA 28; 241 CLR 118; 84 ALJR 612; 269 ALR 233 at [24], [57].
Even where the court is satisfied that there is no arguable case, it still must consider whether to exercise its residual discretion as to whether or not to dismiss the application.[56]
[56] Siddique v Minister for Immigration and Border Protection [2014] FCA 1352; 144 ALD 328 at [19].
In considering whether to exercise the court’s discretion to dismiss the application, I have had regard to the fact that:
a)although the applicant represented himself before this court, he was given the opportunity to amend his application and file written submissions, but chose not to do so; and
b)as noted in SZUTB:
…the objects of the [Federal Circuit Court Rules] include that they are to help the Court to use streamlined processes and that the parties must, in order to assist the Court, avoid undue delay, expense and technicality [and]… this Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted.[57]
[57] SZUTB v Minister for Immigration and Border Protection and Anor [2015] FCCA 1383 at [18].
These factors, together with the findings I have made regarding the absence of an arguable case arising from the applicant’s grounds of review, lead me to conclude that it is appropriate in this case to exercise the Court’s discretion and dismiss the applicant’s application.
I therefore find that this application ought to be dismissed pursuant to rule 44.12(1)(a) of the Rules and the applicant pay the first respondent’s costs of the proceedings.
At the hearing before me, the first respondent indicated that it was seeking costs fixed in the sum of $3,667 being the scale amount for a show cause hearing. Having found that the applicant’s application for judicial review does not disclose an arguable case of jurisdictional error, I fix costs in this matter in the sum of $3,667.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 1 November 2019
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