AWQ17 v Minister for Immigration
[2018] FCCA 1406
•15 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWQ17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1406 |
| Catchwords: PRACTICE AND PROCEDURE – Show cause hearing – no arguable case – no particulars – grounds of application variously narrative or argumentative in nature, did not advance propositions of fact or law in support of any assertion of jurisdictional error – applicant sought to reagitate matters determined at a factual level and embark upon impermissible merits review in this court – application dismissed. |
| Legislation: Migration Act 1958, ss.36(2)(a), 36(2)(aa) Federal Circuit Court Rules 2001, r.44.12 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 AQN15 v Minister for Immigration and Border Protection [2016] FCA 571 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 BHK15 v Minister for Immigration and Border Protection [2016] FCA 569 Craig v State of South Australia (1995) 184 CLR 163 Guo Wei Rong v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 151 Kirk v Industrial Commission (NSW) (2010) 239 CLR 531 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105 Siddique v Minister for Immigration and Border Protection [2014] FCA 1352 Spencer v Commonwealth of Australia (2010) 241 CLR 118 SZTTW v Minister for Immigration and Border Protection [2014] FCA 837 WZATH v Minister for Immigration and Border Protection [2014] FCA 969 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 |
| Applicant: | AWQ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 419 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 15 May 2018 |
| Date of Last Submission: | 15 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 15 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | DLA Piper Australia |
ORDERS
The proceeding commenced by the application filed on 2 March 2017 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 419 of 2017
| AWZ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
By order of a registrar of this court made on 30 August 2017, this proceeding was fixed for hearing under the show cause procedure prescribed by r.44.12 of the Federal Circuit Court Rules. Pursuant to orders made that day, 28 days prior to today’s hearing the applicant should have filed and served any amended application and written submissions. Neither was filed and served.
For the reasons that follow in my judgment this proceeding must be dismissed.
Short factual recital
The applicant, a female citizen of Malaysia, arrived in Australia on 9 January 2016 as the holder of a visitor visa. On 22 March 2016 the applicant lodged an application for a protection (class XA) visa. She claimed to fear harm from the Malaysian Government, her family and her friends. In her own handwriting on her application she set out her reasons for claiming protection in various ways.[1] They included –
[1] Court book, filed on 12 September 2017, 36-37
88Because I’am want to choose my faith own my life;
89Because I have to do something for my future in my life. In my country for the religion its so hard to for change the thing, that’s why I’ll leaving my country.
90If i come back to my country, my family and the government will try to put me down. In Muslim country the law government so cruel and not fair. Sometimes the all that thing always corrupt.
91My life would be bad or chaos. My family and friends would take me down.
(errors in original)
Other similar sentiments were expressed elsewhere in her protection visa application.
On 1 August 2016 the minister’s delegate refused to grant the applicant the protection visa she sought. Being dissatisfied with the delegate’s decision, the applicant sought a merits review in the Administrative Appeals Tribunal. On 10 January 2017 the tribunal wrote to the applicant inviting her to appear before it to give evidence and present argument, such hearing to be held on 6 February 2017. She was told to bring all relevant documentation to that hearing. The applicant accepted the invitation to attend the hearing. The applicant duly attended the hearing. It commenced at 10:19am and concluded at 10:41am. At 3:21pm on 6 February 2017 the tribunal provided its reasons. It affirmed the delegate’s decision to refuse to grant the applicant the protection visa she sought.
Among the more important matters that the tribunal addressed in its reasons were the following. The tribunal stated –
a)the details of the claims the applicant made;[2]
b)the importance of adopting a reasonable approach in findings of credibility, following the holdings of Foster J in Guo Wei Rong v Minister for Immigration & Ethnic Affairs;[3]
c)if the applicant’s account appeared credible, the applicant should be given the benefit of the doubt unless there were good reasons to the contrary (citing the United Nations High Commission for Refugees Handbook and Criteria for Determining Refugee Status, Geneva 1992);
d)recognising the difficulties often faced by asylum seekers, the benefit of the doubt should be given to asylum seekers who are generally credible but who may be unable to substantiate all of their claims;
e)citing Minister for Immigration & Multicultural Affairs v Rajalingam,[4] if the tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, then the tribunal must assess the claim on the basis that it might be true; and
f)citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs,[5] Selvadurai v Minister for Immigration and Ethnic Affairs[6] and Kopalapillai v Minister for Immigration and Multicultural Affairs,[7] the tribunal is not required to accept uncritically all or any of the allegations made by the applicant.
[2] Ibid 102 at [9]
[3] (1996) 64 FCR 151
[4] (1999) 93 FCR 220
[5] (1994) 52 FCR 437
[6] [1994] FCA 1105
[7] (1998) 86 FCR 547
In paragraph 17 of its reasons[8] the tribunal recorded that the applicant informed the tribunal that the claims in her protection visa application were not true. The tribunal recorded that the applicant told the tribunal member that she had a personal reason for not going back to Malaysia and that the information about her having issues with religion in Malaysia were not true. The tribunal member recorded that the applicant told him she had no concerns for her wellbeing arising from any religious or political claims and that she knew nothing of those claims as they were included by someone who assisted her in preparing the application. The tribunal accepted the applicant’s evidence that she concocted this claim such that she did not have a real chance of serious harm or a real risk of significant harm on that account. The tribunal then recorded that the applicant told the tribunal member she left Malaysia because of domestic violence perpetrated upon her by her brother and that, according to a DFAT country report, Malaysian law forbade domestic violence. The tribunal found that the Malaysian police will provide the applicant with support and protection if she sought assistance and that the applicant did not face a real chance of serious harm or a real risk of significant harm arising from the domestic violence claims as made. The tribunal found that the applicant did not have a well-founded fear of persecution for that reason. The tribunal reasoned that it was not satisfied there were substantial grounds for believing that there was a real risk the applicant will suffer significant harm upon return to Malaysia.
[8] Court book, filed on 12 September 2017, 103
The tribunal stated it was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s.36(2)(a) or under s.36(2)(aa) of the Migration Act.
The tribunal decided to affirm the delegate’s decision.
In this court
The applicant relied on eight numbered paragraphs in support of her application for judicial review.[9] Importantly, in none of those grounds did the applicant say that the tribunal incorrectly recorded in paragraph 17 of its reasons her admission that her statement about the protections claims were untrue.
[9] Application filed on 2 March 2017
Most of the contents in the eight numbered paragraphs were narrative or argumentative in nature. None advanced propositions of fact or law by which it could be seen that the applicant was making an assertion about the existence of jurisdictional error of the sort set out in Craig v State of South Australia,[10] Minister for Immigration and Multicultural Affairs v Yusuf[11] or Kirk v Industrial Commission (NSW).[12] More specifically, paragraphs 1 and 2 were historic narrations. Paragraph 3 was plainly incorrect as the tribunal’s decision was based in large measure about the applicant’s concession that her claims were untrue and that she failed to show that Australia had protection obligations towards her under either ss.36(2)(a) or 36(2)(aa) of the Migration Act. Paragraph 4 was a re-agitation of a matter determined at a factual level against the applicant. Insofar as the applicant asserted that she had been the victim of a sexual assault, the tribunal reasoned that Malaysia’s laws in respect of domestic violence would provide the applicant with sufficient protection. Paragraph 5 was an assertion of mixed fact and law and, to the extent that it involved factual matters, those had been addressed by the tribunal so paragraph 5 was an attempt to embark on an impermissible merits review, contrary to the observations of the High Court in such cases as Australian Broadcasting Tribunal v Bond,[13] Attorney-General (NSW) v Quin,[14] and Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[15]
[10] (1995) 184 CLR 163
[11] (2001) 206 CLR 323
[12] (2010) 239 CLR 531
[13] (1990) 170 CLR 321
[14] (1990) 170 CLR 1
[15] (1996) 185 CLR 259
Paragraph 6 was a submission, not a ground of review. Additionally, it endeavoured to trawl over factual matters decided or addressed by the tribunal in an impermissible manner akin to a merits review.
Paragraph 7 was a statement of the applicant’s belief, not a valid ground of review.
Paragraph 8 was a request for different orders.
Against that factual backdrop the registrar ordered this case to go forward under the show cause procedure. Before applying relevant legal principles to the facts of this case let me say a few things about the operation of the show cause procedure.
First, under r.44.12 of the Federal Circuit Court Rules, if the judge hearing the show cause application takes the view that the applicant has not raised an arguable case for the relief he or she seeks, then one option available to the judge is to summarily dismiss the entire proceeding. The High Court in Spencer v Commonwealth of Australia[16] and the Full Court of the Federal Court in AMF15 v Minister for Immigration and Border Protection[17] has each held that the power to summarily dismiss a proceeding should not be exercised lightly.
[16] (2010) 241 CLR 118
[17] [2016] FCAFC 68
Second, in any case involving the exercise of the power under r.44.12, two questions must be separately addressed by the court. The first is whether the court is or is not satisfied that the applicant has raised an arguable case for the relief claimed. The second is whether, in the exercise of a residual discretion, the proceeding should or should not be dismissed. So far as the exercise of the residual discretion is concerned, the merits of the application are critical. In Siddique v Minister for Immigration and Border Protection,[18] Gilmour J held that the answer to the question whether an arguable case has been raised will in very many cases lead to the second question of whether, in the exercise of the residual discretion, the case should or should not be dismissed. In SZTTW v Minister for Immigration and Border Protection,[19] Beach J held to similar effect as did Gilmour J in Siddique that two questions are involved in any consideration of a show cause hearing under r.44.12. Further, as the High Court held in Spencer, to say that an applicant has not raised an arguable case does not necessarily mean that the case is hopeless or that it is doomed to fail.
[18] [2014] FCA 1352
[19] [2014] FCA 837
Here, in my view, none of the grounds of review raised an arguable case for orders for the issue of constitutional writs. Nor, in the exercise of a residual discretion do I take the view that the applicant has raised a point for detailed consideration.
Further, it is to be observed that none of the proposed grounds of review are supported by particulars. As has been held on very many occasions by the Federal Court of Australia, an assertion in an application for judicial review cannot be taken to be a meaningful ground of view in the absence of particulars with the consequence that the proceeding can be legitimately dismissed for that reason alone. Those cases include WZATH v Minister for Immigration and Border Protection,[20] BHK15 v Minister for Immigration and Border Protection,[21] AQN15 v Minister for Immigration and Border Protection[22] and WZAVW v Minister for Immigration and Border Protection.[23]
[20] [2014] FCA 969
[21] [2016] FCA 569
[22] [2016] FCA 571
[23] [2016] FCA 760
In my judgment this case is the very type of case in respect of which the show cause procedure is entirely appropriate.
Today I asked the applicant to tell me in her own words what she said the tribunal did wrong. She said she was not given an opportunity to gather evidence about her claim. Having said that, she also told me she did not apply to the tribunal for time to gather any such evidence. She told me a second time that she wanted an opportunity to go back to the tribunal to put her case. She then conceded that in the invitation to attend the interview before the tribunal she was requested to bring all documents upon which she wished to rely to the hearing.
The applicant, having conceded to the tribunal that the version of events she gave to the delegate and the tribunal was false, now wished to agitate in this court most of the points she conceded as being wrong. She should not be permitted to do that.
I dismiss this proceeding and order the applicant to pay the minister’s costs in the fixed amount of $3,667.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Associate:
Date: 30 May 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Standing
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Statutory Construction
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