AYO16 v Minister for Immigration

[2018] FCCA 3262

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYO16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3262

Catchwords:

MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – application for extension of time – extension of time allowed – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294

Applicant: AYO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 838 of 2016

Judgment of: Judge Mercuri

Hearing date: 26 June 2018

Date of Last Submission: 26 June 2018

Delivered at: Melbourne

Delivered on: 16 November 2018

REPRESENTATION

Counsel for the applicant: In person

Solicitors for the applicant: None

Advocate for the respondents: Ms Montalban

Solicitors for the respondents: DLA Piper Australia

ORDERS

1. The applicant’s application for judicial review filed 26 April 2016 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 838 of 2016

AYO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application under the Migration Act 1958 (Cth) (“the Act”) in which the applicant seeks judicial review of the decision of the second respondent, the Administrative Appeals Tribunal (“the tribunal”) made on 12 February 2016. In its decision, the tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (‘the Minister”) made on 18 August 2014 not to grant the applicant a Protection (Class XA) visa.

2. By order of Registrar Buljan on 14 September 2016, the application was listed for hearing of the application for an extension of time and if granted, a final hearing.

3. After hearing submissions from the parties, I granted the extension of time application and heard from the parties in relation to the applicant’s substantive application for judicial review. The following reasons relate to that substantive application.

4. The tribunal’s decision is found in the court book at pages 86 to 95.

Summary

1. For the reasons set out below, the applicant’s application for review is dismissed and the applicant is ordered to pay the Minister’s costs in a sum to be fixed.

Background

1. The background to this matter is as follows.

2. The applicant is a male citizen of Malaysia, who arrived in Australia on 18 May 2010 on a visitor visa.  

3. On 27 May 2013, the applicant applied for a protection visa. The applicant's initial claims concerned discrimination on the basis of his Chinese ethnicity and persecution by an individual named Mohd Datu, who was said to be a ‘chief manager of the Department of Business’ in Malaysia.

4. On 18 August 2014, a delegate of the Minister refused the application and found that the applicant was not a person in respect of whom Australia had protection obligations. In his decision, the delegate noted that he had:

   …serious concerns about the credibility of the applicant's claims. Having considered the applicant's visa application, migration history in Australia, lack of details in his claims and lack of documentary evidence, it is far more probable, in my view that the applicant only applied for a Protection visa to remain in Australia to continue working.[1]

   [1] Court book page 58.

5. On 11 September 2014, the applicant lodged an application for review of the delegate's decision with the Refugee Review Tribunal, as it then was.[2]

   [2] Court book page 68 to 69.

6. On 4 February 2016, the applicant appeared before the tribunal to present arguments and give evidence and on 12 February 2016, the tribunal affirmed the decision under review.[3]

   [3] Court book pages 81 to 82.

7. At the hearing before this court on 26 June 2018, the applicant appeared on his own behalf assisted by an interpreter. He was asked to explain in his own words why he believed that the tribunal decision was wrong. In response, the applicant said:

   Because from beginning till now I believe that, because there are people in Malaysia that …are threatening me and also they are harmful to me if I return to Malaysia. So I am afraid of going back to Malaysia.[4]

   [4] Transcript page 4 at lines 21 to 23.

8. Without in any way being critical of the applicant, although he was invited to expand on the grounds of review set out in his application, he was unable to do so in any meaningful way.

9. At one point of the hearing, the applicant, after saying that he did not really understand what ground three meant, went on to say, ‘Actually, I apply for this application very simple. The reason is simple. I just want to protect myself.’[5]

   [5] Transcript page 6 at lines 19 to 20.

Ground one

1. The applicant’s first ground of review is:

   My point is that despite having to attended in the hearing, it became imperative that, before the Tribunal member made up its mind to dismiss the application, such information was required to be sent to me written to make comments, in order for fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP.[6]

   [6] The applicant’s application filed 26 April 2016.

2. Section 424A of the Act relevantly provides:

   (1)Subject to subsections (2A) and (3), the Tribunal must:

   (a)give to the applicant, in a way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)invite the applicant to comment on or respond to it.

   (2)…

   (2A) …

   (3)This section does not apply to information:

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)that the applicant gave for the purpose of the application for review; or

   (ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)that is non-disclosable information.

3. The first respondent submits that the applicant has failed to identify any information which enlivens the operation of section 424A of the Act. Moreover, it says that the tribunal’s reasons were based largely on the applicant’s own evidence and that absent any particulars, this ground is not made out.

4. The applicant also makes reference to the High Court decision in

   
   SAAP v Minister for Immigration and Multicultural and Indigenous Affairs

   [2005] HCA 24; (2005) 228 CLR 294 (“SAAP”). In that case, the High Court considered the obligations arising from section 424A of the Act and what the tribunal is required to do to meet those obligations.

5. Without turning to the legal principles in SAAP, it is distinguishable from the present case on its facts. In SAAP, the tribunal in the course of conducing a hearing with the applicant, decided to interview the applicant’s oldest daughter who was present at the time. Although the applicant’s daughter was present, the applicant had not intended that she be called to give evidence. The tribunal member proceeded to take evidence from the applicant’s daughter in the absence of the applicant. When the applicant rejoined the hearing (by video link), the tribunal member put some of the evidence given by the daughter (but not all of the matters raised by the daughter) to the applicant. The tribunal member then proceeded to rely on some of the information provided by the daughter to refuse the application for a protection visa.

6. By comparison, in this case, the tribunal almost exclusively relied upon information provided to it by the applicant. Such information is expressly excluded from the requirement in section 424A of the Act.[7] The only information not provided by the applicant upon which the tribunal in this case relied upon was the Department of Foreign Affairs and Trade (“DFAT”) country report on Malaysia in considering what might happen to the applicant if he were to return to Malaysia as an ethnic Chinese Malaysian.[8] That information is also excluded from the requirements of section 424A of the Act, being information:

   …that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.[9]

   [7] See specifically, section 424A(3)(b) of the Act.

   [8] Court book page 93 at paragraph [32].

   [9] Migration Act 1958 (Cth), section 424A(3)(a).

7. For completeness, I note that in any event, it is clear from the tribunal’s decision record that the tribunal member did put this ‘country information’ to the applicant and invited him to comment on it.[10]

   [10] Court book page 94 at paragraph [33].

8. For the above reasons, ground one is not made out.

Ground two

1. The applicant’s second ground of review is:

   The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.[11]

   [11] The applicant’s application filed 26 April 2016.

2. No further particulars of this ground are provided and as stated earlier in these reasons, the applicant was unable to add any further clarification as to the basis of this ground in his oral submissions. 

3. The first respondent’s principal submission in relation to this ground is that in the absence of particulars it is too broad to be meaningfully responded to.

4. Moreover, to the extent that this is an allegation that the tribunal’s decision was unreasonable or illogical, the first respondent contends that there is no proper basis for such a finding. 

5. To make out a claim of illogicality or irrationality grounding a finding of jurisdictional error, an applicant is required to show that the decision was one which no reasonable person could come to on the evidence before them. It must be more than a decision in respect of which reasonable minds might differ.[12]

   [12] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130].

6. A fair reading of the tribunal’s reasons leads to a conclusion that the findings made by the tribunal were reasonably open to it. The tribunal referred to the evidence given by the applicant himself and whilst accepting some of that evidence, expressed concerns about the applicant’s credit as a result of inconsistencies both between the applicant’s initial claims and those made before the tribunal as well as internal inconsistencies in the applicant’s evidence.

7. The first respondent also states that to the extent that ground two is a claim that the tribunal did not comply with the provisions of the Act, there is no basis for such a finding. I agree with this submission. The tribunal complied with its obligation under Part 7 Division 4 of the Act in inviting the applicant to attend a hearing pursuant to section 424 and provided an opportunity to meaningfully participate in that hearing. As set out above, section 424A of the Act was not engaged in this instance.

8. For these reasons, ground two is not made out. 

Ground three

1. The applicant’s third ground of review is:

   The applicants satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.[13]

   [13] The applicant’s application filed 26 April 2016.

2. In the course of the hearing, as set out above, the applicant stated that the reason for his application to this court was that he was afraid of going back to Malaysia and that he wanted to protect himself. 

3. The first respondent states that to the extent that this ground is a claim that the tribunal has not properly applied the criteria under the Refugee Convention, that it is little more than impermissible merits review.

4. A fair reading of the tribunal’s reasons indicate that the tribunal considered each of the applicant’s claims but ultimately had serious concerns about his credibility[14] and therefore rejected the majority of those claims.[15] The reasons given by the tribunal for the rejection of those claims are detailed, clear and cogent.

   [14] Court book page 91 at paragraph [24].

   [15] Court book page 90 at paragraphs [18] to [21]; page 91 at paragraphs [21] to [25]; and page 92 at paragraphs [25] to [28].

5. The tribunal also clearly and correctly identified the criteria for a protection visa both under the Refugees Convention and the complementary protection criteria[16] and properly applied that criteria in its reasons.[17]

   [16] Court book page 87 at paragraphs [4] to [8].

   [17] In particular, court book page 94 at paragraphs [36], [39] and [40].

6. For these reasons, ground three is not made out.

Ground four

1. The applicant’s fourth ground of review is:

   The AAT has failed to investigate applicants claim, especially the grounds of persecution, In India, Therefore, the Tribunal decision dated 16^th Feb 2016 was effected by actual bias constituting judicial error.

2. At the hearing, when asked about this ground, the applicant conceded that it must have been an error as he was unable to explain why there was a reference to India. 

3. This ground therefore does not disclose any jurisdictional error in the decision regarding the applicant and therefore fails.

Conclusion

1. As none of the applicant’s grounds have been made out, the application must be dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate:  

Date:  16 November 2018