Ayr17 v Minister for Immigration and Border Protection
[2017] FCA 1478
•21 November 2017
FEDERAL COURT OF AUSTRALIA
AYR17 v Minister for Immigration and Border Protection [2017] FCA 1478
Appeal from: Application for leave to appeal: AYR17 v Minister for Immigration and Another (No 2) [2017] FCCA 1786 File number: NSD 1314 of 2017 Judge: O'CALLAGHAN J Date of judgment: 21 November 2017 Date of publication of reasons: 7 December 2017 Catchwords: MIGRATION – application for leave to appeal from Federal Circuit Court of Australia – whether the primary judge erred in not holding that the Administrative Appeals Tribunal erred in not notifying the applicant of the hearing before it – whether the primary judge erred in not holding that the Administrative Appeals Tribunal erred in rejecting the applicant’s evidence – whether Administrative Appeals Tribunal’s decision was unfair or otherwise unlawful – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth), s 24(1)(A)
Migration Act 1958 (Cth), s 36(2)(a) and (aa)
Federal Court Rules 2011 (Cth), r 35.12(1)
Date of hearing: 21 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 25 Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr K Eskerie Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1314 of 2017 BETWEEN: AYR17
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
21 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the costs of the first respondent, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)O’CALLAGHAN J:
This is an application for leave to appeal under r 35.12(1) of the Federal Court Rules 2011 (Cth) from orders made on 31 July 2017 by the primary judge in AYR17 v Minister for Immigration and Another (No 2) [2017] FCCA 1786, dismissing the applicant’s application to reinstate an application to review a decision of the Administrative Appeals Tribunal (the Tribunal) dated 14 February 2014.
The reinstatement application was necessary because the primary judge had dismissed the applicant’s substantive application under the relevant rule of the Federal Circuit Court Rules 2001 (Cth) on the ground that the applicant failed to appear at the scheduled hearing. The applicant requires leave to appeal from the primary judge’s order dismissing the application for reinstatement: see s 24(1)(A) of the Federal Court of Australia Act 1976 (Cth).
The applicant is a citizen of Malaysia. He arrived in Australia on 2 October 2015 as the holder of an Electronic Travel Authority (subclass 601) visa. On 22 December 2015, he made an application for a protection visa (the visa).
The applicant claimed to fear harm based on his imputed political opinion, in circumstances which I shall turn to momentarily. On 7 April 2016, the delegate refused the application. The applicant then applied to the Tribunal for review of the delegate’s decision. On 1 February 2017, the applicant appeared before the Tribunal to give evidence and present arguments, and, on 14 February 2017, the Tribunal affirmed the delegate’s decision.
The Tribunal had regard to country information – namely, a press release issued by Liew Chin Tong, a Member of Parliament, on 4 March 2014. The Tribunal noted that the press release contained wording which was either exactly the same or remarkably similar to that contained in the leaflet supposedly distributed by the applicant.
The Tribunal noted the applicant’s evidence that he had used newspapers to draft the leaflet, as well as his evidence that he wrote the leaflet in his own words using his father’s ideas. Given the similarity between the two documents, the Tribunal found that the contents of the leaflet were a copy of the press release with some changes to the location to suit the applicant’s claims. Accordingly, the Tribunal was not satisfied that the applicant and/or his family drafted the leaflet, as claimed, or that his father was detained and tortured by the Malaysian authorities. Further, it was not satisfied that the applicant or his family would be of interest to the Malaysian authorities as a result of the leaflet, given that the information contained in it was already available to the public through the press release and that this was issued prior to the protest.
The Tribunal accordingly found that the applicant and his family were not involved with political activities prior to his departure from Malaysia and that the applicant was not of adverse interest to the Malaysian authorities due to these or any other activities.
Accordingly, the Tribunal found that the applicant did not have a well-founded fear of persecution and that he did not satisfy the criterion under s 36(2)(a) of the Migration Act 1958 (Cth) (the Act). The Tribunal also found that the applicant was not a person to whom Australia owed complementary protection obligations under s 36(2)(aa) of the Act.
On 8 March 2017, the applicant filed an application to show cause in the Federal Circuit Court of Australia (the FCCA) in respect of the Tribunal’s decision. The grounds of the application are set out in the judgment of the primary judge at [15]. Those grounds were as follows (errors in original):
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.
On 6 July 2017, the matter was listed for directions before the primary judge after the applicant had failed to attend the first court date. The applicant again failed to appear and the primary judge dismissed the application for non-attendance pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).
On 13 July 2017, the applicant filed an application in the FCCA seeking to have the matter reinstated on the basis that the applicant did not receive any notification of the listing before the primary judge. That application was heard on 31 July 2017. The primary judge dismissed it. He did so on the basis that the applicant’s affidavit material provided no explanation for his failure to appear. The applicant gave sworn evidence at the hearing before the primary judge that he did not receive any notification of the listing. But the primary judge did not accept that evidence and held that the applicant had not given any satisfactory explanation for his failure to appear.
The primary judge noted in any event that the more critical issue was whether the application which was sought to be re-agitated had sufficient merit. The primary judge then proceeded to consider the grounds of the application.
In relation to ground 1, the judge held that the applicant’s disagreement with the Tribunal’s adverse findings did not establish any jurisdictional error and that the Tribunal had provided rational and logical reasons in respect of those adverse findings.
As to ground 2, the primary judge held that the applicant’s disagreement with the Tribunal’s findings in relation to the leaflet involved an invitation to the Court to engage in merits review, which, of course, is impermissible.
As to ground 3, the primary judge held that the Tribunal provided cogent and logical reasons in rejecting the applicant’s credit in relation to the issues concerning the leaflet and the applicant’s claims generally.
As to ground 4, the primary judge held that it was open to the Tribunal to test the applicant’s evidence, and that such conduct was not one that a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to determining the matter on the merits.
For those reasons, the primary judge held that there would be no utility in re-instating the application, even if a satisfactory explanation had been given for the applicant’s non-attendance. Accordingly, the primary judge dismissed the application.
The applicant now seeks leave to appeal to this Court. The applicant filed an affidavit dated 3 August 2017. The affidavit does not contain any evidence material to the application. The grounds for the application, which are contained in the draft notice of appeal, are as follows (errors in original):
AAT did not give any notification to my email or address.
AAT doubted my personal statement and adequate reasons for the finding of a fact.
AAT unfairly reviewed my case.
The Tribunal did not examine the risk of my facing serious persecution in Malaysia.
As I have already noted, the applicant requires leave to appeal in this case because he seeks to appeal an interlocutory judgment of the primary judge, that being the order dismissing the application for reinstatement of his claim. In circumstances where a proceeding has been dismissed because a party failed to appear and reinstatement is sought, applicants – and this applicant – must satisfy the Court: first, that there is a sufficient explanation for the non-attendance; and, if so, that the applicant has an arguable case. The applicant has made no submissions, written or oral, with respect to either of those two questions. I gave the applicant an opportunity on the hearing of his application, where he appeared with the benefit of an interpreter, to make any submissions that he wished to. But he did not do so.
The Minister submits that the primary judge correctly considered the applicant’s re-instatement application, including the lack of a satisfactory reason for the applicant’s non-attendance, and the prospects of success in relation to the substantive application. The Minister submits that, for the reasons the primary judge gave, it was open to him to dismiss the application and that no error in his decision was revealed. I agree, and for those reasons, would not grant leave to appeal. In any event, even if I am wrong in relation to the question of an explanation for non-attendance, it seems to me that the grounds of appeal sought to be raised before me are entirely without merit. I deal with them briefly in turn.
Ground 1 is that “AAT did not give any notification to my email or address”. Presumably, the applicant intends by this ground to assert that the FCCA did not give any notification of the listing of the case to him via an email address or a postal address. This is a false claim. As the primary judge noted, the listing notice was sent to the applicant at his residential address.
Grounds 2 and 3 can be dealt with together. Those grounds are that the AAT doubted the applicant’s personal statement and adequate reasons for the finding of fact and that the AAT unfairly reviewed his case because it did not examine the risk of the applicant facing serious persecution in Malaysia. I agree with the submissions made by the Minister that these grounds constitute no more than a request for an impermissible merits review based on nothing more than the applicant’s dissatisfaction with the Tribunal’s findings. As the Tribunal’s decision made clear, at [14]-[17], inclusive, and [28]-[33], inclusive, it rejected the applicant’s claims that the press release undermined the applicant’s claim for protection as it indicated that the applicant did not write the leaflets and further indicated that the information contained in the leaflets was already available to the public such that the applicant’s claim to distribution of the leaflets was unlikely to attract adverse attention from the authorities.
These findings were clearly open to the Tribunal on the evidence before it and for the reasons it gave. As for the applicant’s disagreement with the Tribunal’s adverse credibility findings about his evidence concerning the drafting of the leaflet, it is clear from the Tribunal’s reasons that it considered the applicant’s claims, both in his statement and at the hearing. On the basis of what it called the remarkable similarity between the wording of the leaflet, on the one hand, and the press release, on the other, as well as the quality of the applicant’s own evidence on the issue, the Tribunal found that the applicant had fabricated his claims.
The Tribunal was not, consistent with long-established authority, obliged uncritically to accept the applicant’s claims, and the process of weighing the various claims and evidence was a matter for the Tribunal to determine as part of its fact finding function. The Tribunal’s findings in relation to the applicant’s credibility were, in my view, clearly open to it for the detailed reasons it gave.
For those reasons, the application for leave to appeal will be dismissed with costs. The Court will order:
(1)The application for leave to appeal be dismissed.
(2)The applicant pay the costs of the first respondent, as agreed or assessed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Callaghan. Associate:
Dated: 7 December 2017
0
1
3