AWO17 v Minister for Immigration
[2018] FCCA 1219
•16 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWO17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1219 |
| Catchwords: MIGRATION – Protection visa application – applicant claims to be member of Bersih and vulnerable to harm from Malaysian government – recants this claim before Tribunal – makes new claim to harm grounded upon fear of cruelty from husband – applicant not found to be credible – ground advanced as basis for judicial review wholly generalised – applicant failing to file amended application, provide particulars or submissions – show cause hearing – relevant principles – necessity to show arguable case – residual discretion to allow application to proceed – no arguable case shown – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 Migration Act 1958 (Cth), ss.5, 5J, 36, 65 Migration Regulations 1999 (Cth), Sch 2 cl 866.21, 866.3 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 |
| Applicant: | AWO17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 416 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 15 May 2018 |
| Date of Last Submission: | 15 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 16 May 2018 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Ms Ngo |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.
The applicant pay the costs of the first respondent fixed at $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 416 of 2017
| AWO17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 2 March 2017, judicial review is sought of a decision made by the Administrative Appeals Tribunal made on 8 February 2017. The Tribunal affirmed a decision of a delegate of the first respondent (Minister) made on 6 February 2017 to refuse the applicant a protection visa.
The applicant is a female Malaysian national aged 33 years who arrived in Australia on 8 September 2015. On 11 September 2015, the applicant lodged her application for a protection visa.
In substance, the delegate’s decision to refuse the visa was grounded upon the applicant having been able to travel through Malaysian immigration to Australia using her legitimate identity and without being detected or arrested. The delegate found it implausible that Malaysian authorities would have permitted her to travel had they been looking for her or wanted to persecute her for a political reason.
Tribunal proceedings
On 23 March 2016, the applicant applied to the Tribunal for a merits review of the delegate’s decision.
The applicant was invited to appear before the Tribunal so as to give evidence or present arguments on the issues arising in relation to the delegate’s decision: s 425(1). On 6 February 2017, the applicant attended a Tribunal hearing.
The Tribunal affirmed the delegate’s decision on that day.
The Tribunal’s reasons described the nature of the application, the criteria for a protection visa, gave consideration to the applicant’s claims and evidence and, for the reasons below, considered credibility to be an important issue in the application. The applicant abandoned the claims made in her application and raised new claims in their place. I examine the decision in further detail below at [29]-[38].
Procedural History
The application was filed in this Court on 2 March 2017.
By a response dated 21 March 2017, the Minister opposed the grant of relief on the basis that the Tribunal decision was not affected by jurisdictional error.
On 30 August 2017, orders were made, by consent, that the proceeding be listed for a show cause hearing. Those orders provided for the applicant to file any amended application, evidence and submissions.
Judicial review
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [102].
Thus, s 65 requires the decision-maker to refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
The criteria for a protection visa are set out in s 36 of the Act and Subclass 866 of Schedule 2 to the Migration Regulations 1994. Subclass 866 prescribes the primary and secondary criteria that must be satisfied in relation to a protection visa application both at the time of the application and at the time of decision.
Where, at either point, the criteria prescribed for a protection visa have not been satisfied, the application must be refused.
As concerned the primary criteria to be satisfied at the time of application, sub-clause 866.21 prescribed that the applicant had made:
(a)a claim that a criterion in sub-s 36(2)(a) or (aa) was satisfied; and,
(b)specific claims as to why such criterion were so satisfied: para 866.21(2)(a)-(b);
As concerned the secondary criteria, sub-cl 866.3 prescribed that the applicant must also satisfy the primary criteria at the time of decision.
Relevantly, the applicant was required to satisfy the delegate or the Tribunal that:
(a)under para 36(2)(a), she was owed protection obligations under the Refugees Convention as amended by the Refugees Protocol;
(b)under para 36(2)(aa), that there was a real risk that she would suffer significant harm if she was returned to Malaysia. On the operative provisions of the Act as in force at the relevant time, the applicant was also required to demonstrate that she had a well-founded fear of persecution for a reason specified in the Convention or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Malaysia, there was a real risk that she would suffer significant harm.
The expression ‘significant harm’ is defined by s 36(2A) of the Act.
Show cause hearings
Rule 44.12 of the Federal Circuit Court Rules 2001 (Cth), regulates the conduct of a show cause hearing and confers a broad discretion on the Court to dismiss, adjourn or make final orders in an application, depending on whether it is satisfied that the application has raised an arguable claim for the relief sought. Even where the Court is not satisfied that the application has raised an arguable claim for relief, the Court retains a residual discretion to not order that the proceeding be dismissed: Siddique v Minister for Immigration and Border Protection (2014) 144 ALD 328, [19]; SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [40].
In Siddique at [19], Gilmour J stated that:
The power in r 44.12(1)(a) has two components: lack of satisfaction that an applicant has raised an arguable case for the relief claimed, and a residual discretion whether or not to dismiss the application.
For those reasons, his Honour concluded at [20] that it would be wrong to proceed on the basis that the application should be dismissed merely because the Court was not satisfied that the application had raised an arguable case for relief. The exercise of the power conferred by r 44.12(1)(a) further requires the Court to consider whether the discretion conferred by this rule should be exercised.
To recognise that the power conferred by the rule has two components does not deny that the merits of the application for judicial review are critical to the first inquiry (arguable case) and remain significant in relation to the second (discretion). For this reason, it is permissible for the Court to consider both components together: Siddique, [24].
In CAL15 v Minister for Immigration and Border Protection[2016] FCA 1344, Mortimer J held at [4] that the consideration of the merits of the application was important to the determination of an application for reinstatement because of the interests of the administration of justice stating:
. . . [it is] important because if there were no arguable case on judicial review, it is unlikely it could be said that a favourable exercise of the discretion to reinstate would advance the interests of the administration of justice in terms of the effective use of judicial resources, costs to the respondent, and fairness to an applicant. It is not fair to exercise a discretion favourably to an applicant if the Court is not satisfied there is an arguable case, because it can create false hopes in an applicant and an expectation, not grounded in law and reality, that her or his application may be successful. (Emphasis added)
I respectfully adopt that reasoning as informing a show cause hearing.
Mortimer J held at [5] that exercise of the discretion in favour of an order for reinstatement does not require the Court to be satisfied of the grounds of review to the same level as apply at a final hearing of an application for judicial review. Rather, on an application for reinstatement, the threshold for consideration of the merits of the application was whether the grounds for judicial review were shown to be ‘arguable’: at [6] citing MZABP v Minister for Immigration and Border Protection[2015] FCA 1391 at [62].
Earlier, in Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 at [18], McHugh J stated that, while the threshold for obtaining an order nisi was a low one, nevertheless Courts should not be burdened with cases where it is clear that they do not enjoy any prospect of success. His Honour dismissed that application at [19] on the basis that the applicant had no arguable claim for relief.
Consideration
As the applicant was self-represented, I have examined the Tribunal’s reasons and the materials comprised in the Court Book. The application contains a single ground of review for which the applicant has provided no particulars. The ground of review is that:
The Tribunal failed to properly consider all of my claims.
As the applicant has not taken the opportunity to file a supplementary Court Book or any submissions, the Minister and in turn the Court are left to discern the existence of jurisdictional error from a ground which is devoid of particulars. In WZAVW v Minister for Immigration and Border Protection[2016] FCA 760 Gilmour J said at [35]:
. . . an unparticularised assertion of jurisdictional error and is vague and meaningless. It does not specify what the nature of the jurisdictional error allegedly committed by the Court below is. Failure to particularise a ground of review is sufficient basis for it to be dismissed. (Citations omitted)
See also MZARG v Minister for Immigration and Border Protection[2018] FCA 624 at [25], (McKerracher J).
Although the application was open to dismissal on the basis that the ground of review is devoid of particulars, I have considered for myself the reasons of the Tribunal and the materials before it. The applicant appeared before me with the assistance of an interpreter and I recognise that she was unfamiliar with Court process: cf AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30, [44(g)].
Consideration of the merit of the substantive application requires that the reasons of the Tribunal be examined.
The applicant’s initial claims to protection were grounded upon her being a member of Bersih and that the Malaysian government had been tracking down such persons. The applicant claimed that the government was chasing her and that, if returned, she would be caught by police and imprisoned or fined. She further claimed to having been hit by police and having escaped before she was caught. The applicant claimed that she could not relocate.
It appears that the Bersih movement had been dedicated to securing the removal of Prime Minister Najib Razak.
Before the Tribunal, the applicant recanted the claims in her application saying that they were untrue. She disavowed any claims to fear upon the basis of political opinion: cf para 5(1)(a) of the Act. Instead, the applicant maintained that she had a personal reason for seeking protection, being that she faced mental torture from her husband.
The Tribunal found that the applicant was not a Bersih member or supporter and that she had had no difficulties with the Malaysian government arising from her political opinions.
As concerned her new claim, the applicant told the Tribunal that she had come to Australia to find work to assist her in repaying a loan. She also said that her husband had come to Australia in April 2016, bringing two sons, and was now living here also. The applicant said that her husband had also lodged a protection visa application. The applicant told me that she was not living in Australia with her husband.
When the Tribunal suggested to the applicant that she could now return to Malaysia (as her husband was located in Melbourne), she replied that she wanted to make a new life in Australia: Reasons, [24]. Before me, the applicant confirmed that this was her view.
The Tribunal, citing para 5J(1)(a) of the Act, concluded that the applicant’s evidence undermined a conclusion that she held a fear of relevant harm. The Tribunal found that the applicant had concocted her claim to fear harm as a member and follower of Bersih: Reasons, [26].
The Tribunal also observed that divorce was available in Malaysia and, while accepting that the applicant’s marriage had been unhappy, found that she had not been physically harmed and that the treatment which she had experienced did not constitute cruel or inhuman treatment or punishment: Reasons, [28]; cf para 36(2A)(d) of the Act.
The Tribunal noted that the applicant had not availed herself of effective protection measures in Malaysia and did not accept that she would be forced to live with her husband. It found that there was nothing to stop the applicant from leaving or divorcing her husband.
Accordingly, the Tribunal found that the applicant was not entitled to the grant of a protection visa, either on the basis that she was a refugee or because she was owed complementary protection pursuant to paras 36(2)(a) or 36(2)(aa) respectively.
Conclusion
From my examination of the Tribunal’s reasons and the material that was before it, I discern no arguable basis on which it could be said that the decision of the Tribunal was affected by jurisdictional error.
It follows that the application should be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 16 May 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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