BEY17 v Minister for Immigration

[2018] FCCA 2062

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEY17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2062

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – where Applicant did not attend Tribunal hearing – taking into account country information a matter for the Tribunal – Tribunal has no duty to investigate Applicant’s claims – procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 425A, 426A, 430, 441A.

Cases cited:
Minister of Immigration & Citizenship v SZIAI (2009) 83 ALJR 123.
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10.
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287.
VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459.

Applicant: BEY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 568 of 2017

Judgment of: Judge Hartnett

Hearing date: 20 July 2018

Delivered at: Melbourne

Delivered on: 20 July 2018

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Ms Allan

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application filed on 20 March 2017 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 568 of 2017

BEY17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court this day is an application filed on 20 March 2017 wherein the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 20 February 2017, which affirmed a decision of the delegate of the First Respondent (‘the delegate’) not to grant the Applicant a protection (Class XA) visa (‘the visa’).

2. The grounds of Applicant are as follows:- 

   “1. The Tribunal failed to consider many vital integers of my case because I was unable to attend with a migration agent. Crucial evidence was not taken into consideration in making the decision. 

   2.  The Member did not even talk about or consider what always happens in my country: our country hates women, the police are corrupt, they do not recognize women’s rights, and I could not receive the protection I needed to survive in my home country.  In the decision they failed to show that they have fully considered this matter to give me justice. 

   3.  The Member has failed to do his duty.  The Tribunal deprived me of procedural fairness. 

   4.  My story is true.  All they need to do is check with the police both in Malaysia and Australia.  The Member wanted to reject my application without properly considering the matter. 

   5. I did not receive a SMS at my number. I did not receive the notifications by mail or email.  I want to go to tribunal again and present my story.”

3. As can be seen, in part the grounds of application are not particularised, and further, they are not proper grounds of judicial review.  These are matters to which I shall return.

Background

1. The Applicant is a Chinese Buddhist born in Ipohperak State in 1973.  She is a citizen of Malaysia. She arrived in Australia on 10 November 2012 on a Malaysian passport as the holder of a (Class UD) (subclass 976) electronic travel authority (‘ETA’), with a maximum period of stay for three months expiring on 10 February 2013. She has not departed Australia since this arrival.

2. On 16 January 2013 the Applicant lodged an application for a (Class TR) (subclass 676) (tourist visa) which was granted on 4 March 2013 and expired on 10 May 2013.  On 8 May 2013, the Applicant attempted to lodge a (Class FA) (subclass 600) (visitor visa), however did not have the documents to demonstrate that she met the requirements of a genuine tourist.

3. On 10 May 2013, the Applicant lodged another visitor visa application which was granted on 27 May 2013 and expired on 27 August 2013. 

4. On 23 July 2013, the Applicant lodged an application for a (Class TU) (subclass 573) (student) visa. However, this was deemed invalid because she did not meet item 1222(3)(c) of sch.1 of Migration Regulations 1994 (Cth) (‘the Regulations’), by providing evidence that she was enrolled or had been offered a place in a CRICOS registered course of study.

5. On 27 August 2013, the Applicant attempted to lodge a further student visa application. However, this was deemed invalid because the confirmation of enrolments she had provided were cancelled, and again she did not meet item 1222(3)(c) of sch.1 to the Regulations.

6. The Applicant thereafter remained in Australia unlawfully until 18 February 2015 when she lodged her application for the visa.  She was granted a subclass 030 (bridging) C visa.  On 22 May 2015 the Applicant was granted a further bridging C visa with the 8101 ‘no work condition’ lifted.

7. The Applicant claimed she left Malaysia because her life was in danger and because of mental torture by her ex-boyfriend.  She claimed she had experienced mental breakdown and that her boyfriend often beat her and threatened to kill her.  She claimed that she feared her boyfriend and his friend would catch her, beat her and punish her.  She claimed her family told her recently that the drunk boyfriend had come to the home looking for her, smacked the gate with wood and threatened to kill her if he found her.

8. The Applicant further claimed that before she came to Australia she made a police report in Malaysia but the police told her they could only do a report and nothing else because ‘this is a family problem’.  She claimed the police did not do anything to protect her.

9. On 13 April 2015, the delegate wrote to the Applicant inviting her to attend an interview to discuss her claims. She did not respond.  On 31 August 2015, the delegate refused to grant the visa. 

10. The delegate found that the Applicant was a national of Malaysia and for the purposes of the delegate’s assessment, Malaysia was the Applicant’s receiving country. The delegate found the Applicant’s claims were not credible, given her claims were vague and limited in detail and given her delay in seeking protection. Accordingly, the delegate found the Applicant did not meet s.36(2)(a), or s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).

11. On 10 September 2015, the Applicant applied to the Tribunal for review attaching a copy of the delegate’s decision.  The Applicant provided a contact email address of [email protected] and a mobile telephone number.

12. On 18 January 2017 the Tribunal wrote to the Applicant to her nominated email address advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the Applicant to give oral evidence and present arguments at a hearing on 17 February 2017. The Applicant was advised if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice to her.  No response was received.

13. On 10 and 16 February 2017, the Tribunal sent SMS hearing reminders to the mobile phone number nominated by the Applicant, these reminders being both one week before the hearing and one day before the hearing.  The Applicant did not appear before the Tribunal at the scheduled hearing on 17 February 2017. 

Tribunal Decision

1. On 20 February 2017, the Tribunal affirmed the decision of the delegate not to grant the visa. The Tribunal noted in paragraph 3 of the Statement of Decision and Reasons (‘the Decision Record’) that it was satisfied that the review Applicant was properly invited to a hearing in accordance with s.441A(5) of the Act; that the invitation had not been returned to sender; and that two separate SMS reminders were also sent advising the review Applicant of the hearing details.

2. In those circumstances, and pursuant to s.426A of the Act, the Tribunal determined to make its decision on the review without taking any further action to enable the Applicant to appear before it.

3. The Tribunal found the Applicant’s claims as set out in paragraph 13 of the Decision Record contained very little information. The Tribunal found them vague and lacking in detail. The Tribunal noted that it did not have the opportunity to test the Applicant’s claims, given her failure to attend at the scheduled hearing. The Tribunal said:-

   “… This has left many questions regarding the Applicant’s previous and future circumstances unanswered.”[1]

   [1] Decision Record, paragraph 13.

4. As set out in paragraph 14 of the Decision Record, the Tribunal found that given the very limited information before it, and the lack of detail in the Applicant’s claims, that the Tribunal was not satisfied the Applicant’s claims were credible.  The Tribunal did not accept that the Applicant left Malaysia because her life was in danger and did not accept that she feared her ex-boyfriend, and his friends, would catch, beat or punish her.

5. On the evidence, the Tribunal did not accept that the Applicant faced a real chance of serious harm or a real risk of significant harm as a necessary and foreseeable consequence of being removed to Malaysia at the hands of her ex-boyfriend, his friends, or anyone else. 

6. Accordingly the Tribunal concluded that the Applicant did not meet the criteria set out in s.36(2)(a) or s.36(2)(aa) of the Act, and was not a person in respect of whom Australia had protection obligations.

Consideration

1. By orders made by Registrar Caporale on 27 September 2017, the Applicant was ordered to file and serve any amended application and written submissions prior to the hearing date this day. The Applicant did not comply with those orders. Nevertheless, the Applicant was given an opportunity to make oral submissions this day.  Those submissions did not identify any jurisdictional error on the part of the Tribunal, and nor did the Court’s consideration of the grounds of the judicial review application.

2. In respect of ground 5, wherein the Applicant claimed to have not received an SMS message on her phone, and to have not received notifications by mail or email from anyone, the Applicant submitted today that she in fact did receive the SMS messages sent to her by the Tribunal (and numbering two), and that she had a conversation with her lawyer, whom she claimed told her that she could attend the hearing or not attend the hearing, and that she chose not to attend.  She claimed further that she was advised by her lawyer that it was “okay” not to attend.  There is no evidence before the Court from the Applicant’s former lawyer.

3. Grounds 1, 2 and 4 are really the Applicant’s statement of her disagreement with the Tribunal’s finding that it was not satisfied that her claims were credible.  Given the limited material before the Tribunal, and the inevitable consequence of the Applicant’s failure to appear at the hearing before the Tribunal, the findings made by the Tribunal were clearly open to the Tribunal on the evidence before it.[2]

   [2] NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, 5.

4. As to the Applicant’s criticism that the Tribunal did not talk about, or consider, what “always happens in [the Applicant’s] country”, it is clear that the Tribunal had no country information submitted by the Applicant to it which it allegedly failed to consider. Otherwise, as to the Tribunal taking into account any country information, the choice and assessment of country information was a factual matter for the Tribunal and the weight given to it, also a matter for the Tribunal.[3] 

   [3]NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, 11-13.

5. The Applicant suggests in ground 3 that the Tribunal should make inquiries with the police in Malaysia and Australia in respect of the Applicant’s “story”. The Court notes that it is well established that it was for the Applicant to make out her case before the Tribunal, and that the Tribunal had no duty to investigate, nor any duty to consider utilising such permissive statutory powers as it had which might enable it to investigate.[4]

   [4] VCAK of 2002 v  Minister for Immigration & Multicultural & Indigenous Affairs  [2004] FCA 459, 27.

6. The Applicant could have put any evidence which she wished before the Tribunal for the Tribunal’s consideration.  The Applicant did not do so.  It is clear on the evidence before the Court, and on a reading of the Decision Record, that this was not a case where the Tribunal failed to make an inquiry about a critical fact, the existence of which was easily ascertained.[5]

   [5] Minister of Immigration & Citizenship v SZIAI (2009) 83 ALJR 123, 25-16.

7. As to ground 3, which is an allegation that the Applicant was not afforded procedural fairness, there is no particularisation of that claim. The Tribunal did all that it was required to do statutorily to provide to the Applicant procedural fairness. The Tribunal invited the Applicant to a scheduled hearing and that invitation to hearing notice complied with the requirements as set out in s.425A of the Act. The notice was transmitted by email to the last email address provided to the Tribunal by the Applicant in connection with the review, and the period of the notice given was more than the prescribed period required. The notice contained a statement on the effect of s.426A of the Act. The Tribunal was entitled to make a decision on the review by written statement under s.430 of the Act, and the Tribunal notified the Applicant of the decision by email transmitted on 21 February 2017.

8. The Tribunal complied with the legislative requirements to invite the Applicant to a hearing, and it was entitled to proceed as it did to make a decision on the review without taking further action to allow or enable the Applicant to appear before it.[6] 

   [6] Migration Act 1958 (Cth) s.426A.

9. The Applicant provided no evidence that she failed to receive any of the Tribunal’s communications, but in any event they were sent to the relevant address and mobile telephone number provided in her review application to the Tribunal and there is no evidence that any communications forwarded by the Tribunal were not received by the Applicant.

10. There being no merit to the application for judicial review, it will be dismissed with costs following that dismissal.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 31 July 2018