BLC17 v Minister for Immigration

[2020] FCCA 227

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLC17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 227

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Malaysia – applicant not believed – whether the Tribunal misconstrued the test for significant harm or failed to comply with s.424A of the Migration Act or otherwise exceeded its jurisdiction considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 36(2A), 424, 424A, 424AA, 425, 438

Cases cited:

SZBEL v Minister for Immigration (2006) 228 CLR 152

SZMCD v Minister for Immigration (2009) 174 FCR 415

Applicant: BLC17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1023 of 2017

Judgment of: Judge Driver

Hearing date: 5 February 2020

Delivered at: Sydney

Delivered on: 5 February 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J. Dadgar of HWL Ebsworth Lawyers

ORDERS

1. The name of the first respondent is amended to the “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”.

2. The application filed on 4 April 2017 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1023 of 2017

BLC17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 8 March 2017.  The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. Background facts relating to the applicant’s claims for protection and the decision of the Tribunal are conveniently set out in the Minister’s outline of submissions filed on 29 January 2020. 

3. The applicant, a female citizen of Malaysia, most recently entered Australia on 7 December 2015 as the holder of a Subclass 601 (Electronic Travel Authority) visa. On 25 February 2016, the applicant applied for a protection visa.[1] On 29 March 2016, the delegate refused to grant the applicant's protection visa as he was not satisfied the applicant was a refugee as defined by s.5H(1) of the Migration Act 1958 (Cth) (Migration Act). Accordingly, the delegate was not satisfied the applicant met the criteria pursuant to ss.36(2)(a) or 36(2)(aa) of the Migration Act.[2]

   [1] Court Book (CB) 1

   [2] CB 59

4. On 4 April 2016, the applicant applied to the Tribunal seeking review of the delegate's decision.[3]

   [3] CB 73

5. On 7 November 2016, the Tribunal wrote to the applicant inviting her to attend a hearing before it on 30 November 2016 in Sydney.[4] 

   [4] CB 96

6. On 22 November 2016, the applicant replied to the Tribunal's hearing invitation and requested that the hearing take place by telephone as she was residing in Griffith, NSW.[5]  On 28 November 2016, the Tribunal wrote to the applicant agreeing to that request and advising the hearing will be held by videoconference.[6]

   [5] CB 98

   [6] CB 103

7. On 30 November 2016, the Tribunal wrote to the applicant advising that the scheduled hearing would be postponed to a time and date to be advised.[7]

   [7] CB 106

8. On 12 December 2016, the Tribunal wrote to the applicant inviting her to attend a hearing before it on 14 February 2017.[8]

   [8] CB 109

9. On 14 February 2017, the applicant appeared before the Tribunal to give evidence and present arguments. On 8 March 2017, the Tribunal affirmed the decision to refuse the applicant's protection visa. The Tribunal was not satisfied that the applicant was involved in an anti-government political party or organisation, or that she had attended a Bersih rally. In reaching that conclusion, the Tribunal noted the applicant's inconsistent evidence with respect to her political participation and involvement[9]and her lack of knowledge about the Bersih movement.[10] The Tribunal also referred to the applicant's confirmation that she had not experienced problems at the hands of the authorities in Malaysia in the past. The Tribunal considered that, given the applicant's low-level knowledge of the Bersih movement, there was no suggestion that the applicant would be involved in anti-government activity in the future. Given those findings, the Tribunal was not satisfied that the authorities would show any interest in her because of her political opinion, actual or imputed.[11]

   [9] CB 126 at [42]

   [10] CB 126 at [43]

   [11] CB 51

10. These proceedings began with a show cause application filed on 4 April 2017.  The applicant continues to rely upon that application.  The three grounds in it are: 

    1. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

    The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon her returns to Malaysia

    2. The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

    Particular:

    The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

    3.The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act.

11. The application was supported by a short affidavit filed with it, which I received as a submission.  I have before me, as evidence, the court book filed on 8 September 2017 and a supplementary court book filed on 28 January 2020.

12. This matter was originally allocated to the docket of Judge Barnes.  At a callover on 11 March 2019, the matter was transferred to my docket for hearing today. 

13. I invited oral submissions from the applicant this afternoon.  She told me that at the Tribunal hearing, she was interrupted by the member who stated, what she was saying was not relevant.  When I queried, what information she was seeking to convey, she stated, it was information about her family.  The applicant has had an extended opportunity of several years to provide evidence in support of any claim of jurisdictional error.  She has not availed herself of that opportunity.

14. Neither, is there any claim of bias or a breach of s.425 of the Migration Act in the application before the Court. The only evidence I had before me as to what transpired at the Tribunal hearing is in the record of the Tribunal’s decision.

15. To the extent that the applicant is now alleging an apprehension of bias or the failure to afford a fair hearing opportunity, that assertion fails in the absence of supportive information. 

16. The applicant told me that she had further information that she had not revealed to the Tribunal.  As I explained to her, that information could not assist me.  It may, however, be something that the Minister could consider, if he is so minded.

17. No jurisdictional error is disclosed by the grounds in the application.  Those grounds show a misunderstanding of the application of the relevant legislative provisions.  I agree with the Minister’s submissions concerning those grounds.

18. The first ground of the application alleges that the Tribunal misconstrued the risk and fear of significant harm as set out in s.36(2A) of the Migration Act by erroneously construing the existence of risk to life and fear of significant harm to the applicant upon her return to Malaysia.

19. The Tribunal did not misconstrue the applicant's risk of serious harm. Rather, and taken at its highest, this ground is an attempt to invite the Court to engage in impermissible merits review.

20. The second ground alleges that the Tribunal failed to comply with the requirements under ss.424A and 424AA of the Migration Act and failed to issue any written invitation under s.424A.

21. The Tribunal complied with its statutory obligations pursuant to Division 4 of Part 7 of the Migration Act.

22. In relation to s.424A of the Migration Act, this present matter is not one in which the Tribunal's s.424A obligations were enlivened and, therefore, the Tribunal was not required to issue an invitation pursuant to s.424A. As to the applicant's allegation relating to s.424AA of the Migration Act, this is also unparticularised. However, in circumstances where there was no obligation arising under s.424A there can be no independent breach of s.424AA given the manner in which those complementary provisions operate.[12]

    [12]SZMCD v Minister for Immigration (2009) 174 FCR 415 per Moore, Tracey and Foster JJ

23. With respect to s.425 of the Migration Act, the applicant was invited to, and attended, a hearing before the Tribunal on 14 February 2017. The duration of the hearing was approximately two hours. At the hearing, the Tribunal discussed the issues that were dispositive to the review.[13] The Tribunal traversed the evidence with the applicant, including putting to the applicant matters that might cause the Tribunal to conclude that the applicant was not a person to whom Australia has protection obligations.[14]

    [13] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [33]

    [14] See, for example CB 124-125 at [25] to [33]

24. On the basis of the available material it is apparent that the Tribunal complied with s.425 of the Migration Act by giving the applicant a “real and meaningful” opportunity to participate in the hearing and give evidence in support of her application.

25. The third ground of the application alleges that the Tribunal had no jurisdiction to make its decision because its "reasonable satisfaction" was not arrived at in accordance with the provisions of the Migration Act.

26. The ground does not raise an arguable ground of jurisdictional error and cannot be made out.

27. The Tribunal took the opportunity at [61] of its reasons,[15] to deal with a purported s.438 Migration Act certificate and the documents purportedly covered by that certificate. The purported certificate and the information is reproduced in the supplementary court book.

    [15] CB 129

28. The Tribunal was plainly correct in finding that the purported certificate is invalid. Further, the information purportedly covered by it was plainly irrelevant to the review. I see no error in the Tribunal’s approach to this issue.

29. I conclude that the applicant is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. It is therefore, a privative clause decision and the application must be dismissed. I will so order.

30. In consequence of the dismissal of the application, the Minister seeks a fixed costs order.  The costs that are sought, $5,600, are significantly below scale.  The applicant enquired about time for payment but did not otherwise oppose a costs order.

31. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,600.

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  25 February 2020