AYR17 v Minister For Immigration and Anor (No.2)

[2017] FCCA 1786

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYR17 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 1786

Catchwords:
MIGRATION – Administrative Appeals Tribunal – reinstatement application – applicant’s explanation for failure to appear on 6 July 2017 is not satisfactory or reasonable – the Tribunal provided rational and logical reasons in respect of its adverse findings – adverse findings made cannot be said to lack an evident and intelligible justification – no utility in setting aside the order made on 6 July 2017 – no jurisdictional error identified – application in a case dismissed.

Legislation:

Federal Circuit Court Rules2001, r.13.03C(1)(c), 16.05.

Migration Act 1958 (Cth), ss.36, 476.

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: AYR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 674 of 2017

Judgment of: Judge Street

Hearing date: 31 July 2017

Date of Last Submission: 31 July 2017

Delivered at: Sydney

Delivered on: 31 July 2017

REPRESENTATION

Counsel for the Applicant: The applicant appeared in person.

Solicitors for the Respondents: Mr T Hillyard
Sparke Helmore

ORDERS

1. The application in a case is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $1,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 674 of 2017

AYR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 February 2017 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The application for review was filed in this Court on 8 March 2017 and had a return date before the Registrar on 22 June 2017. The applicant failed to appear on that date and an order was made fixing the matter before this Court on 6 July 2017. An order was made on 6 July 2017 for want of appearance by the applicant, dismissing the application under r.13.03C(1)(c) of the Federal Circuit Court Rules2001. 

Reinstatement application

1. On 13 July 2017, the applicant filed an application in a case supported by an affidavit seeking to have the order made in the absence of the applicant, to be set aside under r.16.05 of the Federal Circuit Court Rules 2001.

2. At the commencement of the hearing, the Court explained to the applicant that this was an interlocutory hearing to decide whether or not there was utility in setting aside the order that had been made by this Court on 6 July 2017. 

3. The Court explained in that regard that there were two considerations. Firstly, whether the applicant had a satisfactory explanation for his failure to appear and secondly, whether there was utility in setting aside the order by reason of their being an arguable case that the Tribunal’s decision was affected by relevant legal error. 

4. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the applicant had a reasonable argument that the Tribunal’s decision was unlawful or unfair.

5. The Court explained that if satisfied that the applicant had a satisfactory explanation for his failure to appear and a reasonable argument that the Tribunal’s decision was unlawful or unfair, the Court’s order would be set aside and the matter would be fixed for hearing on another occasion. The Court explained to the applicant if not satisfied the applicant had a satisfactory explanation for the failure to appear and a reasonably arguable case that the Tribunal’s decision was unlawful or unfair, the application in a case would be dismissed.

6. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the interlocutory hearing as explained by the court.

Whether there is a satisfactory explanation for the applicant’s failure to appear

1. The applicant’s affidavit in support merely asserted a fear of going back to Malaysia, which was the country against which the applicant’s claims were assessed and in respect of which the applicant was found to be a citizen by the Tribunal. No explanation was proffered in the applicant’s affidavit for the failure to appear. However, the application in a case asserted that the applicant had failed to receive any notification of the rescheduled Court time, and the applicant asked for any further chance. The applicant gave sworn evidence before the Court that he did not receive the correspondence sent to his residential address either dated 26 June 2017 or 7 July 2017. 

2. The Court raised with the applicant how it was that he came to make the application on 13 July 2017 and the applicant asserted that he contacted his agent in Goulburn to inquire about how his case was progressing and was informed that the case was dismissed. The applicant was asked to identify the agent from Goulburn and the applicant referred to a particular alleged migration agency and that he spoke to a person called Melody. The applicant asserted that the migration agent assisted him in completing the application for review filed in this Court and created a fresh email address using the applicant’s own name which was redirected to the immigration agent, and the applicant said that it was not his email address. The applicant asserted that he had no email address.

3. On further examination by the Court, the applicant identified that he had a Facebook account to communicate with others and accepted that he had an email address. However, the applicant again asserted that the email address had been created by someone else and did not go to him. The Court also asked the applicant about why he was prepared to use an email address that appeared not to be true in filing a document before the Court and the applicant provided no satisfactory explanation. 

4. The applicant acknowledged that the address to which the correspondence had been sent was his residential address and maintained that he did not receive the correspondence. The first respondent has submitted that the Court should not accept the applicant’s evidence.  I accept that submission. 

5. I do not accept the applicant has been truthful in relation to the non-receipt of the correspondence. In particular, I do not accept that the applicant made a casual communication after the delivery of this Court’s reasons on 6 July 2017 to his agent to ascertain the status of his migration application or his review application. Rather I find the applicant must have received the letter dated 7 July 2017 sent to his address and the timing of the application is consistent with that finding. 

6. In these circumstances I do not regard the applicant’s explanation for the failure to appear on 6 July as being satisfactory or reasonable. However, the more material issue in the present case are the merits

Whether there is an arguable case that the Tribunal’s decision was affected by relevant legal error

1. The grounds and the application are as follows:-

   1. I told the AAT officer that my whole families all attended the protest, and my mother was detained. Then the AA T officer asked me that why my father was detained by the Malaysia government not my mother. I asked that because my father was at the front of the protest. AAT' s question was such meaningless. Even the AAT officer doubted what I said without providing any reasonable reason. Their capacity for work is so ridiculous.

   2. The AAT officer asked me that how I wrote the leaflet. I said that some of them I collected from the newspaper. Especially some powerful number. Then the AAT asked me why I said my father wrote the leaflet in my provided statement. I said I just said that some came from the newspaper, just some. Some also were written by my father. I did not lie. However, the AAT officer believed that I chopped logic with them. I could not accept the comments from them for my explanation. They also doubt my credibility AAT said there were the inconsistencies and contradictions in my evidence, I told them that I could not remember what my statement said because it happened a bit too long, and I needed some time to recall. However, AAT officers just did not believe what I said, which was unbelievable.

   3. According to the statement I provided, the officer's judgment was so unreasonable. The officer said that my statement was copied from one website which was posted by somebody in 2014. I said I never heard of that website or that body. After I departed from Malaysia, I did not know that if somebody used my story to post to the website and change the posting time. However, the officer confirmed that the statement was from somebody not me. I just copied his. This was just their thought, but they could not provide their convincing evidence. I could not accept it.

   4. AAT doubted what I said and the evidence I provided from beginning to the end. Even worse, they though I never attended the political protest. Further, they thought that if I came back to Malaysia, I could not be persecuted and harmed. However, AAT officers did not believe me and could not give me any reasons.

Consideration of the applicant’s submissions

1. From the bar table the applicant asserted that the member had been affected by a personal mood and the applicant asserted that the Tribunal member did not like it when he argued back. The applicant asserted he gave answers to all the questions and that during the hearing when he was looking at the interpreter he was told to look at the Tribunal. 

2. The applicant also referred to the Tribunal raising with the applicant the applicant’s credit in respect of a document that the applicant said that he had prepared from newspaper clippings prepared by his father.  The applicant confirmed that the Tribunal member asked him whether there was anything else he wished to add and the applicant conveyed a desire to shake the Tribunal member’s hand which the Tribunal member declined. The applicant asserted that after the hearing the applicant also saw the Tribunal member at a counter and smiled and waved, but the Tribunal member walked way. I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60].

3. The applicant also submitted that the Tribunal member did not have to believe him, but submitted that he believed the Tribunal member had brought her own personal views to bear rather than determining the matter on its merits.

Consideration of the Tribunal’s decision

1. The Tribunal’s decision identified the applicant’s background and in particular the place where the applicant was born and that the applicant arrived in Australia on a visitor visa on 2 October 2015 and applied for protection on 22 December 2015. 

2. The Tribunal member noted that the applicant had travelled before to Hong Kong and to China. The Tribunal member noted the applicant’s claims and evidence in relation to water crises and alleged poor governance in relation to the supply of water to a particular place. The Tribunal member referred to the applicant’s alleged protest on 15 May 2015 in relation to levying of the water rights for that place and the distribution of alleged leaflets. The Tribunal member referred to an assertion that the applicant’s father was arrested and subsequently severely beaten and tortured, and that the applicant then went into hiding and that as a result of his mother visiting his father in June 2015, the applicant was told to leave Malaysia as soon as possible due to the torture of his father. The Tribunal member referred to the applicant’s assertion that his father remains in detention and the police often come to his house asking after the applicant. 

3. The Tribunal identified that the applicant attended a hearing on 1 February 2017 to present evidence and arguments in support of the application. The Tribunal made reference to the applicant indicating that his father had been released in mid-June and was currently working as a delivery driver and financially supporting the family. The applicant also gave evidence that his mother and father continue to reside in the same address with other family members. The Tribunal also asked the applicant about the preparation of a leaflet that the applicant asserted he prepared from newspapers collected by his father. 

4. The Tribunal raised with the applicant media statement inconsistent with the assertion the applicant wrote the contents of the leaflet and raised with the applicant that the applicant had fabricated his claims in relation to the government protest, to have written and distributed a leaflet, in relation to his father’s detention or that he was of interest to the authorities.

5. The Tribunal noted the applicant’s response which was to the effect of asking the Tribunal how it could form those opinions based on the media response. The Tribunal also noted that at the end of the hearing, the Tribunal invited the applicant to make any further submissions or offer any further evidence in support of his claims, which the applicant declined. 

Consideration of the applicant’s claims and evidence

1. The Tribunal correctly identified the relevant law.  Having regard to the evidence, the Tribunal was not satisfied that the applicant wrote the leaflet as claimed, and the Tribunal was not satisfied that the applicant or his family were of interest to the Malaysian authorities as a result of the leaflet. 

2. The Tribunal found the information was already available to the public through a press release dated 4 March 2014, which was prior to the alleged protest on 15 May 2015. Tribunal found the document asserted to be created by the applicant to be so similar as to conclude the applicant’s submission is a copy of the earlier press release with some changes to location to better suit the applicant’s claims. 

3. The Tribunal was not satisfied as to the applicant’s claims that he and his family drafted the leaflet and/or that his father was detained and tortured by the Malaysian authorities as a result of writing the leaflet and/or participation in the protests. 

4. Having considered the applicant’s claims and evidence, the Tribunal was not satisfied that the applicant was a person with respect of whom Australia has protection obligations under s.36(2)(a) of the Migration Act and found that the applicant did not meet the refugee criteria in section 36(2)(a).

5. The Tribunal also was not satisfied the applicant is person with respect of whom Australia has protection obligations under s.36(2)(aa) and found the applicant did not satisfy the criteria under s.36(2) and affirmed the decision under review.

Consideration of the applicant’s submissions from the bar table

1. In relation to what was said from the applicant by the bar table, the Tribunal’s decision reflects an orthodox approach to the determination of the review on its merits. The adverse finding by the Tribunal is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. There is nothing on the material before the Court to identify that the Tribunal approached the matter other than with an open mind reasonably capable of persuasion in relation to the merits.

2. The Tribunal member’s conduct to which the applicant referred in testing the applicant’s credit, raising issues in respect of the media statement, asking the applicant to look at the Tribunal member, the Tribunal member declining to shake the applicant’s hand and the Tribunal not waving back in response to the applicant’s attempt at communication after the hearing are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No arguable case of bias is identified by anything the applicant has said from the bar table. 

3. Further, the adverse findings in relation to the applicant’s credit were open on the material before the Tribunal and the Tribunal’s reasons cannot be said to lack an evident an intelligible justification in that regard.

Consideration of the grounds

1. In relation to grounds 1 to 4 of the application, I accept the first respondent’s submission that they are in substance an invitation to this Court to engage in an impermissible merits review. None of the grounds identified any arguable case of jurisdictional error. 

Ground 1

1. In relation to ground 1, it was clearly open to the Tribunal to raise who had been arrested, given that the applicant said he went with his mother and father to the alleged protest. The disagreement with the Tribunal’s decision is in essence an invitation to this Court to engage in an impermissible merits review. This Court has no power to review the merits.

2. The applicant’s disagreement with the adverse findings do not identify any arguable case of jurisdictional error. The Tribunal provided rational and logical reasons in respect of adverse findings. No arguable case of jurisdictional errors made out by ground 1.

Ground 2

1. In relation to ground 2, the applicant’s disagreement with the findings of the Tribunal in respect of the leaflet are in substance an invitation to this Court to engage in an merits review.  As indicated above, this Court does not have power to review the merits. Nothing in ground 2 identifies any arguable case of jurisdictional error. 

Ground 3

1. In relation to ground 3, the Tribunal provided cogent rational and logical reasons in support of the adverse finding made rejecting the applicant’s credit in respect of the leaflet and the applicant’s claims.  The applicant’s disagreement with the adverse findings does not identify any arguable case of jurisdictional error. No arguable case of jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, it was open to the Tribunal to test the applicant’s evidence and the testing of the applicant’s evidence is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of a matter on its merits. 

2. The applicant’s disagreement with the adverse findings does not identify any arguable case of jurisdictional error.  No arguable case of jurisdictional error is made out by ground 4.

Conclusion

1. In the circumstances of the present case, the Court is not satisfied that the grounds identify a sufficiently arguable to warrant setting aside the orders made on 6 July 2017.

2. The Court finds that there would be no utility in setting aside the order made on 6 July 2017 even if a satisfactory explanation had been provided, because the grounds identified do not reflect any reasonably arguable case of jurisdictional error.

3. Nothing said by the applicant from the bar table identified any reasonably arguable jurisdictional case.

4. Accordingly, the application in a case is dismissed.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 3 August 2017