AZA18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 890

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AZA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 890

File number:	MLG 526 of 2018
Judgment of:	JUDGE BLAKE
Date of judgment:	5 October 2023
Catchwords:	MIGRATION - Application to review decision of the Administrative Appeals Tribunal – application refused.
Legislation:	Migration Act1958 (Cth) pt 7 div 4, s 424AA.
Cases cited:	WZAVW v Minister for Immigration and Border Protection [2016] FCA 760.
Division:	Division 2 General Federal Law
Number of paragraphs:	18
Date of hearing:	26 September 2023
Place:	Melbourne
Advocate for the Applicant:	In Person
Solicitor for the Applicant:	None
Advocate for the Respondents:	Mr Orchard
Solicitor for the Respondents:	Sparke Helmore

ORDERS

MLG 526 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AZA18

Applicant

AND:

ADMINISTRATIVE APPEALS TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Second Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	5 OCTOBER 2023

THE COURT ORDERS THAT:

1.The Application filed on 1 March 2018 be dismissed.

2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $5,000.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE BLAKE:

1. This is an application to review a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 1 February 2018 (‘Application’). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection (class XA) (subclass 866) visa (‘visa’). 

2. For the reasons that follow, I have decided to dismiss the Application.

   BACKGROUND

3. The Applicant is a Malaysian national. The Applicant arrived in Australia on 29 August 2016 on an Electronic Travel Authority visa (Court Book (‘CB’) 100). He applied for the visa on 15 November 2016 (CB 13).

4. On 9 March 2017, a delegate of the Minister (‘delegate’) refused to grant the Applicant the visa (CB 97).

5. On 31 March 2017, the Applicant applied to the Tribunal for review of the delegate’s decision (CB 113).

6. On 20 December 2017, the Applicant was invited by the Tribunal to attend a hearing scheduled for 1 February 2018 in person (CB 143). The Applicant responded to the Tribunal’s hearing invitation on 24 January 2018, and subsequently attended the scheduled hearing with the assistance of a Malay interpreter (CB 149-150).

7. On 1 February 2018, the Tribunal made an oral decision on the application for review. It affirmed the delegate’s decision not to grant the Applicant the visa (CB 203). Subsequently, on 28 February 2018, the Tribunal provided the Applicant a written statement of the decision and reasons (‘Reasons’) (CB 209).

8. The Applicant subsequently filed the Application in this Court on 1 March 2018. Before me, the Applicant was unrepresented. He relied on the Application, and his affidavit filed 1 March 2018. The Minister relied on an outline of submissions dated 7 September 2023, and a Court Book.

   THE APPLICATION

9. There are six Grounds of Review in the Application. They are as follows:

   1.I was born in Malaysia and came to Australian on visitor visa and made an application for protection visa. Visa application was refused by DIBP and then review application was made to AAT. I have attended AAT hearing relation to this review application however, AAT has affirmed decision made by AAT. Now I would like to make an application for review with FCC to seek new orders and replace orders made by AAT as AAT has made an error in law while deciding on my matter as AAT has failed on their obligation to provide me requested time so that more evidences could be submitted to AAT

   2.AAT was in view that I don't meet definition of genuine refugee and claimed that I do not have genuine fear for my life upon returning back to Malaysia.

   3.I have clearly explained to AAT that I have fear for my life upon return to Malaysia. I am native Borneo and our country has been invaded by illegal immigrants and this has put our life and other natives in danger. I along with other people have been collecting declarations to be helped by UN. I would be stopped by Malay Govt. in case I go back to Malaysia to stop fighting for our rights. Malaysian Government is not treating us fairly and would put me in jail and torture me.

   4.I would like to continue to spread the word around and fight for our rights as Malaysian Government has allowed immigrants from other countries to take our rights.

   5.AAT has not considered my claim and went on to information published by Royal Malaysian Police and ignored the fact that information provided by myself is genuine in nature. This is clear error in law made by AAT when they did not consider my claim and now like to do an appeal application to FCC to seek new orders.

   6.I would like to request to FCC to set aside old orders and make new orders with directions to AAT to consider material provided to them to support my application as AAT has made an error in law while deciding on my matter.

10. I asked the Applicant during the hearing to expand upon the Grounds of Review. He was unable to do so.  He has also not elaborated upon the Grounds of Review in his affidavit.

11. I have carefully considered the Grounds of Review. As best as I can ascertain, the grounds reveal only three asserted errors, expressed generally, and without particularity. The first is that, inter-alia, the Tribunal made an error in law by failing in its obligation or duty to provide the Applicant more time to produce evidence to the Tribunal (Ground One). The second is that the Tribunal did not consider the Applicant’s claim, but instead considered information published by the Royal Malaysian Police (Ground Five). The third (which is arguably a subset of the second point) is that the Tribunal did not consider information provided by the Applicant in deciding the matter (Ground Six). The remaining aspects of the Grounds of Review fail to articulate any error, and in some instances amount to nothing more than an invitation to this Court to undertake a review of the merits of the decision, something the Court is unable to do.

12. The first matter to note about the errors I have attempted to extract from the Grounds of Review are that the errors are not specifically identified or particularised. That is a sufficient basis upon which to dismiss the Application: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].

13. I have considered the claim that the Tribunal failed to provide the Applicant with more time or sufficient opportunity to produce evidence. A review of the Reasons discloses that the Applicant did provide information during the hearing. The Applicant has not pointed to any request he made of the Tribunal to produce further evidence either during the hearing, or after it. There is no evidence that he sought any adjournment of the hearing in order to adduce further evidence. In summary, I am satisfied that the Tribunal has not committed an error of the type apparently alleged by the Applicant.

14. I have considered the claim that the Tribunal did not consider the Applicant’s claims. There does not appear to be any basis for that assertion. A review of the Reasons discloses that the Tribunal summarised the Applicant’s claims at paragraphs [7]-[31] of the Reasons. It is apparent from a review of that summary, that the Tribunal had regard to written claims made by the Applicant in his written application for protection, as well as information he provided orally during the hearing. The Tribunal considered, and addressed the Applicant’s claims.

15. Related to the issue above is the Applicant’s claim that the Tribunal considered information from the Royal Malaysian Police. The Tribunal did have regard to country information, and there are two matters to note about this. First, the Reasons reveal that the Tribunal did not have regard only to the country information in determining the Applicant’s claims (as alleged by the Applicant). Rather, the Tribunal considered a range of information in reaching its decision.  What weight it gave to particular pieces of information was a matter for it. Second, the Tribunal put the country information to the Applicant for comment during the hearing, and the Applicant therefore had an opportunity to respond to it. The matter identified by the Applicant, therefore, does not give rise to any jurisdictional error.

16. It is not apparent to me that the Applicant asserts any denial of procedural fairness. To the extent that I am wrong about that, however, I observe that the Tribunal complied with its obligations under Part 7, Division 4 of the Migration Act1958 (Cth) (‘Act’). The Applicant was properly invited to the hearing. He attended the hearing. He was assisted by an interpreter. He was on notice (through the decision of the delegate) that the credibility of his claims would be the principal issue for consideration. The Reasons also reveal that the Tribunal was cognizant of its obligations under section 424AA of the Act, and that it put matters to the Applicant, including that claims similar to those made by the Applicant had been made to the Tribunal before in other matters. The Applicant would have been on notice of those issues in any event, given he was aware of the decision of the delegate (see for example, CB 105). No denial of procedural fairness is apparent.

    CONCLUSION

17. The Applicant has failed to make out any of the Grounds of Review. More broadly, he has failed to demonstrate that the Tribunal has committed any jurisdictional error. The Application must therefore be dismissed.

18. The Minister seeks costs in the amount of $5,000. Given the Applicant has been entirely unsuccessful, I will award costs to the Minister in the amount of $5,000.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:

Dated:       5 October 2023