Blu16 v Minister for Immigration

[2016] FCCA 2721

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLU16 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2721

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), s.36
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases Cited:
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212

Applicant: BLU16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1516 of 2016

Judgment of: Judge Emmett

Hearing date: 21 October 2016

Date of Last Submission: 21 October 2016

Delivered at: Sydney

Delivered on: 21 October 2016

REPRESENTATION

The Applicant appeared in person with the assistance of a Mandarin interpreter.

Solicitor for the Respondents: Mr Rohan White
(Mills Oakley)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 1516 of 2016

BLU16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 15 June 2016, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 18 May 2016 and handed down on 19 May 2016 (“the Tribunal”).

2. On 4 August 2016, the applicant attended a directions hearing before a Registrar of the Court. On that occasion, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon together with any further evidence by way of affidavit by 1 September 2016, as well as submissions in support by 15 September 2016.

3. At the request of the first respondent, the matter was listed today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), on the basis that the applicant’s application did not raise an arguable case for the relief sought. At the directions hearing, the applicant was provided with a copy of r.44.12 of the Rules together with the contact details of legal services providers and interpreting and translating services.

4. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

5. Relevantly, r.44.13 of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

6. The first respondent, in written submissions, accurately summarised the background, the applicant’s claims, the decision of the delegate of the first respondent (“the Delegate”), and the Tribunal’s decision, as follows:

   “Background

   2. The applicant is a female citizen of Malaysia of Chinese ethnicity. She first arrived in Australia on 16 August 2009 in the name of [first name] and lodged a Protection visa application in that name on 16 December 2009: CB 1-26. The applicant’s written claims in her first Protection visa application asserted a fear of harm in Malaysia from underworld criminals after the applicant reported them to the police for selling drugs in her shop (at CB 18-21). A delegate of the first respondent refused the applicant’s first Protection visa application on 19 January 2010 (CB 32-36), and that decision was affirmed by the (then) Refugee Review Tribunal on 21 April 2010 (CB 38-43).

   3. The applicant left Australia on 14 July 2012 but travelled back to Australia on 21 October 2012. She departed again on 9 December 2012 and returned on 15 December 2012 on a Subclass 976 visa in the name of “[second name]”. The applicant formally changed her name on 27 August 2012 (CB 97). After her Subclass 976 visa ceased on 15 March 2013, the applicant remained unlawfully in Australia for several years (see: CB 104; CB 139). 

   The Applicant's case

   4. On 26 June 2015, the applicant lodged a further Protection visa application (CB 44-78), and outlined written claims to fear harm in Malaysia: CB 73-75.

   5. In her further Protection visa application, the applicant claimed (at CB 73-75) that her business partner borrowed money from loan sharks in Malaysia and gave the applicant’s name to them. The applicant claimed the loan sharks came after her and threatened to kill her if she did not repay the money. She claimed she was beaten by one of them and feared they would kill or harm her and her family or kidnap her children and force them to do illegal things if she did not repay the money. The applicant claimed she tried to sell her house to pay the debt “but they didn’t let her go” and she “had to move to other place” but “they can still find me”. She also claimed the police in Malaysia were corrupt and discriminated against Chinese people.

   The delegate

   6. In a decision dated 2 February 2016, a delegate of the first respondent made a decision on the papers without inviting the applicant to an interview (CB 104-118). The delegate relied on independent country information (ICI) that indicated illegal money lending in Malaysia was an offence, the Royal Malaysian Police (RMP) was an effective police force, the RMP and authorities had targeted illegal money lending operations and implemented measures to reduce corruption (CB 107-115). The delegate refused the applicant’s Protection visa application on the basis that she could access effective State protection (CB 116-118).

   The Tribunal

   7. On 22 February 2016, the applicant lodged an online application with the Tribunal to review the delegate’s decision (CB 119-120). On 21 April 2016, the applicant was invited to a hearing scheduled on 13 May 2016 (CB 123-129). The applicant accepted the invitation (CB 131-133) and attended the scheduled hearing (CB 134-136). She provided the Tribunal with a copy of her passport at the hearing (CB 137-140).

   8. In a decision dated 18 May 2016, the Tribunal accurately set out the applicant’s written claims (CB 145, [9]-[11]) and provided a summary of her evidence at the hearing (CB 146-148, [13]-[21]). The Tribunal accepted the applicant was a citizen of Malaysia (CB 148, [22]) and whilst it acknowledged media reports of widespread illegal money practices in Malaysia, it found the applicant’s claims were not credible (CB 148, [24]). It cited six reasons to support its adverse credibility findings:

   a. First, the Tribunal found the applicant’s claims that she left Malaysia in 2009 because she feared harm from loan sharks were undermined by the fact she returned to Malaysia for three months in 2012. It did not accept that she hid at a friend’s place whilst in Malaysia or her reasons for returning there and found the fact she returned undermined her claimed subjective fear of harm and cast doubt on the credibility of her central claim (CB 148-149, [24]-[25]).

   b. Secondly, the Tribunal did not find as credible the applicant’s evidence that loan sharks threatened her children given her three children were living and studying in Malaysia and did not appear to have been harmed (CB 148-149, [24]-[26]).

   c. Thirdly, the Tribunal identified inconsistencies in the applicant’s evidence in her Protection visa application and at the hearing about where she resided in Malaysia and where her children were living and did not accept her explanations for the discrepancies. The Tribunal identified additional inconsistencies in her evidence about the sex of her claimed business partner and why her business partner had approached loan sharks to borrow money (CB 148-149, [24], [27]-[28]).

   d. Fourthly, the Tribunal found the applicant was unable to persuasively or plausibly explain why she would be at risk from loan sharks given her evidence that she was last targeted in 2009 and it was not clear how they would even become aware if she returned to Malaysia, particularly given her past ability to return there for three months (CB 148, 150, [24], [29]).

   e. Fifthly, the Tribunal found that although the applicant departed Malaysia in 2009, her delay in applying for a Protection visa in 2015 cast doubts on the genuineness of her claims. It also found her explanations for the delay were not credible particularly as she had previously applied for protection in 2012, seemed able to read and understand English and demonstrated that she was a capable and resourceful person (CB 148, 150, [24], [30]).

   f. Finally, the Tribunal found the applicant’s evidence about why the police were unwilling to assist her to be “unconvincing”. It also found the available country information did not support her claim that she would be denied police protection because of her Chinese ethnicity (CB 130, [31]).

   9. For these reasons, the Tribunal did not accept the applicant’s claims were credible and found she had fabricated them in their entirety to prolong her stay in Australia (CB 151, [33]-[34]). The Tribunal placed no weight on the fact that the applicant’s claims in her first Protection visa application bore no resemblance to the claims in her current application because it accepted her explanation about why she had no knowledge of the contents of her first Protection visa application (CB 150-151, [32]).”

7. The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.

8. At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider her claims and reach different findings or conclusions. I explained that under the Rules of this Court, where the grounds of her application do not disclose an arguable case for the relief claimed, the Court may dismiss her proceeding. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction.

9. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

10. The applicant confirmed to the Court this morning that she has not filed any further documents, either in accordance with the Court’s directions or otherwise.  The applicant confirmed that she relied on the grounds contained in her initiating application, filed on 15 June 2016. Those grounds are as follows:

    “1. AAT used the information I didn’t know against me, this is not fair.

    2. AAT concluded that I’m safe because my daughter is safe, this is not right.

    3. AAT said I could go back to Malaysia and I was safe. AAT didn’t consider that I was going back to my operation in the hospital.

    4. AAT can’t use the information which was put by other people and said I wasn’t telling the same. This is not fair.”

    (Errors in original).

11. The grounds of the application were interpreted for the applicant and the applicant was invited to say whatever she wished in support of the grounds.

Ground 1

1. Ground 1 was unsupported by any particulars. The applicant submitted that the Tribunal held against her the fact that she had previously made a protection visa application in 2010, in respect of which she was ultimately unsuccessful. In exploring with the applicant what she meant by this complaint, it appeared to be that information about that application had been provided to the Tribunal without her knowledge, and that she was cheated and fooled by her migration agent in respect of that application.

2. However, a fair reading of the Tribunal’s decision record makes clear that the Tribunal placed no adverse weight on the fact that the claims presented by the applicant in her current protection visa application bore no resemblance to those advanced in her first protection visa application. 

3. As such, Ground 1 appears to be a misunderstanding on the part of the applicant of the reasons for decision given by the Tribunal.

4. Accordingly, Ground 1 does not raise an arguable case for the relief claimed.

Ground 2

1. In relation to Ground 2, the applicant asserted that the Tribunal’s conclusion that she would be safe in Malaysia because her daughter was safe was incorrect. The applicant also said that loan sharks in Malaysia would force her to give up her child.

2. In its decision record, the Tribunal recorded in detail the various exchanges that it had had with the applicant. The Tribunal put matters of concern it had about the applicant’s evidence to her for comment, and noted her responses.  The Tribunal rejected the applicant’s claims that her children were living in fear in Malaysia. The Tribunal found that the fact that the applicant’s three children were living and studying in Malaysia cast doubt on her claims that loan sharks had ever threatened to harm her children.

3. The Tribunal found that the applicant’s claims for protection, including her claims in relation to loan sharks, had been fabricated in their entirety in the hope of prolonging her stay in Australia. The Tribunal’s decision record discloses a comprehensive assessment of the applicant’s claims and the reasons for its adverse credibility findings.

4. The Tribunal’s findings would appear to be open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

5. Accordingly, Ground 2 does not raise an arguable case for the relief claimed.

Ground 3

1. Ground 3 simply asserts that the applicant cannot go back to Malaysia, and that the Tribunal did not consider that she only went back for her operation in hospital.

2. The applicant sought to tender to Court a copy of a document confirming that she had undergone an operation in Malaysia.  However, it was not a document that was provided to the Tribunal and, for that reason, its tender was rejected on the grounds of relevance.

3. Again, Ground 3 appears to misunderstand the Tribunal’s decision record. The Tribunal accepted that the applicant had returned to Malaysia to have an operation. However, the Tribunal found that the applicant’s conduct in returning to Malaysia, where she claimed her life was at risk, cast doubt on the credibility of her claim to be of adverse interest to loan sharks in Malaysia.

4. In any event, the Tribunal’s findings in relation to the applicant’s return to Malaysia for three months in 2012 were open to it on the evidence and material before it, and for the reasons it gave.

5. Accordingly, Ground 3 does not raise an arguable case for the relief claimed.

Ground 4

1. In Ground 4, the applicant asserts that the Tribunal should not have used information “put by other people” in making adverse credibility findings against her.

2. In support, the applicant said that an incorrect address on her protection visa application had been written by a friend. The applicant also said that she has changed her address a lot. She therefore used only the address in her passport.

3. The Tribunal’s decision record makes clear that it explored with the applicant its concerns about the various addresses provided by the applicant. The Tribunal noted the applicant’s responses, including that she had trusted a friend to fill out her protection visa application. However, ultimately, the Tribunal was not persuaded that the applicant had adequately accounted for the inconsistencies between her written application and oral evidence before the Tribunal about where she was living in Malaysia. In particular, the Tribunal noted that it became apparent during the hearing that the applicant was able to check the information in her protection visa application. The Tribunal noted that, in the circumstances, it appeared that the applicant was capable of checking whether the information recorded in her protection visa application was correct.

4. To the extent that those findings by the Tribunal impacted adversely on her credit, it was open to the Tribunal to do so.  

5. In an attempt to identify what may have been the applicant’s complaint in Ground 4, the first respondent’s written submissions address the use of country information by the Tribunal. I accept the correctness of the first respondent’s submission in this regard, and accept it in its entirety, as follows:

   “Ground four

   16. In ground four the applicant complains that the Tribunal “can’t use information which was put by other people” to say the applicant “wasn’t telling the same”. She states this is “not fair”. Again, the applicant does not even identify the information that is said to have been used in this manner. In any event, other than its assessment of the evidence the applicant herself gave to the Tribunal and to the Department, the Tribunal relied on country information (at CB 150, [31]) to reject the applicant’s claim that the police failed to act on her report because of her Chinese ethnicity. The applicant was invited to comment on DFAT information at the hearing about the availability of state protection in Malaysia and the situation of ethnic Chinese (CB 147-148, [21]).

   17. Country information falls within the exceptions outlined in s 424A(3)(a) and is not required to be disclosed under s 424A(1) of the Act. In addition, s 424(1) confers a “general power” on the Tribunal to “get any information that it considers relevant”. The only limitation on that power is that the Tribunal must have regard to that information in making its decision. The Tribunal also plainly had regard to the country information it obtained (at CB 150, [31]). The Tribunal was under no obligation to uncritically accept any and all allegations made by the applicant, and was entitled to accord country information weight in making its decision. Both the choice and the assessment of the weight of such material are matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.”

6. In any event, it is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

1. To the extent that the applicant’s grounds of review suggest that the Tribunal’s decision is unfair, this complaint was not particularised any further by the applicant this morning. The Tribunal’s decision record discloses that it identified with particularity the applicant’s claims and explored those claims with her in detail before making its findings. As stated above, the Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave.

2. There is nothing on the face of the Tribunal’s decision record to suggest that the Tribunal’s decision was not fair.  Whilst this may be the applicant’s view, without more, it is not capable of establishing jurisdictional error on the part of the Tribunal.

3. In the circumstances, the applicant’s complaints appear more to be a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

   “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

4. In relation to the country information considered by the Tribunal, and which it discussed with the applicant, it is well established that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

5. The Tribunal considered whether the applicant met the criterion either in respect of s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) and whether the applicant was at risk of significant harm as a necessary and foreseeable consequence of being removed to Malaysia, and concluded that she was not. This was based on comprehensive adverse credibility findings made by the Tribunal in respect of the applicant’s claims, and the finding that the entirety of her claims had been fabricated. There is nothing in the Tribunal’s decision record to suggest that the applicant did not have a real and fair opportunity to put whatever she wished and to participate in the hearing, in a way from which it can be concluded that the hearing was fair and thus that administrative justice was done (see SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212 at 24 per Allsop CJ).

6. Accordingly, Ground 4 does not raise an arguable case for the relief claimed.

Conclusion

1. While I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The Tribunal referred to the relevant law in affirming the decision under review.

2. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 15 June 2016, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 28 October 2016