BMI17 v Minister for Immigration
[2018] FCCA 1052
•17 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BMI17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1052 |
| Catchwords: MIGRATION – Protection (class XA) visa – show cause procedure – applicant allegedly the victim of a loan shark causing her to flee Malaysia – her version rejected by the tribunal – whether tribunal fell into jurisdictional error – it did not – delay of four years in alleging claims to protection. |
| Legislation: Migration Act 1958, sub-ss.36(2)(a),(aa) Federal Circuit Court Rules 2001, r.44.12 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection (2016) 241 FCR 30 Craig v State of South Australia (1995) 184 CLR 163 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Howell v Carter (No 2) (2017) 317 FLR 151 Re L; Ex parte L (1986) 161 CLR 342 |
| Applicant: | BMI17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 695 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 17 April 2018 |
| Date of Last Submission: | 17 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 17 April 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | DLA Piper Australia |
ORDERS
The application filed 6 April 2017 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $3,080.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 695 of 2017
| BMI17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Pursuant to consent orders made on 11 October 2017 by a registrar of this court this case was ordered to go forward under the show cause procedure prescribed by r.44.12 of the Federal Circuit Court Rules.
Pursuant to the same orders, on a date long since passed the applicant should have filed an amended application with proper particulars of her application to this court. She failed to file that amended application, whether by the date ordered or at all. She also failed to file written submissions in support of her application for judicial review to this court, whether by the date ordered or at all.
Under the show cause procedure set out by r.44.12 of the rules, unless I am persuaded that the applicant has raised an arguable case for the relief she seeks in this proceeding, one of the orders that I can make is an order dismissing the entire proceeding.
In order to understand the nature of this application and the orders I have arrived at, it is necessary to say a little about the background.
The applicant arrived in Australia from Malaysia on 16 March 2012. Almost four years later, she applied for a protection (class XA) visa on 21 January 2016. Her application was refused by the minister’s delegate on 23 February 2016.
The applicant sought a merits review on 21 March 2016 by applying to the Administrative Appeals Tribunal. On 3 March 2017 the tribunal affirmed the decision of the delegate, the effect of which was not to grant the applicant the protection visa that she sought.
Before the tribunal the applicant had asserted through a migration agent that she had guaranteed a loan for her deceased partner. She said she had borrowed from loan sharks, the purpose of which borrowing was sustenance of his gambling habit. The applicant claimed that her partner died in 2007, soon after which, by various means, the money lenders sought repayment using threats. The tribunal considered the information in her protection visa application, one detail of which was response 89[1] being her reason for claiming protection. It read as follows –
[1] Court book filed 23 October 2017, p.32
My ex-partner died because of heart disease before our son had a birth. I am a single mother and having a hard life in Malaysia. Even my mother could help me a little bit, but by myself to feed up one child I paid a lot. What I planned to set up own small business and need start-up funds because I was heavily in debt after borrow 50,000 Malaysia ringgit from loan shark in 2010 at monthly interest payment. what I think can cover the repayment if everything go smoothly, unfortunately, due to high interest rate, i often pay late and les, the money lender THREATENED me even my family.
(Errors in original)
In response to question 91[2] of her protection visa, when asked whether she had experienced harm in Malaysia, she said the following –
[2] Court book filed 23 October 2017, p.33
MONEY LEDERS RAMMED MY CAR, THEY ABDUCTED ME AT KNIFEPOINT, TAPED OVER MY EYES, BEAT AND KICKED ME AND HELD A KNIFE TO MY THROAT.
(Errors in original)
In question 92[3] she was asked whether she sought help following the harm, in answer to which she said the following –
[3] Ibid
THE MALAYSIAN POLICE ARE ENDEMICALLY CORRUPT, WHICH EXTENDS TO INCLUDE PROTECTING OR ASSOCIATEING WITH LOAN SHARKS. ANYWAY, LOAN SHARKS COULD KNOW WHERE AM I IF I AM SENT BACK.
(Errors in original)
In question 93[4] she was asked whether she moved or attempted to move to another part of Malaysia to seek safety. In answer, she said the following –
[4] Ibid
MONEY LENDERS HAVE OWN NETWORK IN MALAYSIA. I HAD LOST TRACK OF HOW MYCH I OWED AND REALISED THAT I NEVER GOING TO ABLE TO PAY THEM. EVEN I HIDE FOR A WHILE, THEY STILL CAN FIND ME OUT.
(Errors in original)
In response to question 94[5] she stated she thought she would be harmed or mistreated if returned to Malaysia. Her response was as follows –
[5] Court book filed 23 October 2017, p.34
IF I AM SENT BACK, MALAYSIAN POLICE KNOW ALL SITUATIONS RELEVANT TO ME. THE MONEY LENDERS KNOWS AT THE SAME TIME. THE MONEY LENDERS THREATENED TO KIDNAP MY FAMILY. IF I COULD RELOCATE WITHIN MALAYSIA, MY FAMILY WILL FACE A RISK OF SIGNIFICANT HARM.
(Errors in original)
She said the authorities in Malaysia only protect rich people and high-class Malays. She said she did not think she could relocate within Malaysia because the money lenders would find out as they had good relations with local police.
To assist the applicant in the tribunal, she appointed Mr Tsai of De Novo Legal. A hearing for the applicant to give evidence and present argument was set for 1 December 2016. Mr Tsai filed a 31 page submission with the tribunal on 23 November 2016 at 12.57pm. In those submissions, Mr Tsai made detailed propositions about the applicant’s former partner’s gambling issues, his previous borrowings from loan sharks, the applicant’s own involvement with loan sharks, the applicant’s financial difficulties, threats from loan sharks and how police provided little assistance. Mr Tsai addressed propositions of law under the Migration Act (“Act”), the Malaysian unregulated moneylending practices, corruption in Malaysia, ineffectiveness of Malaysian police, the unreasonableness of requiring the applicant to relocate and its practicable impossibility. Mr Tsai urged the tribunal to conclude that the applicant had a well-founded fear of persecution for the purposes of s.36(2)(a) as well as for the purposes of s.36(2)(aa) of the Act.
On 1 December 2016 the tribunal duly conducted the hearing.
On 3 March 2017 the tribunal decided to affirm the delegate’s decision as mentioned above. In essence, the tribunal reasoned as follows –
a)the applicant was not a credible witness, and as she had made up her claims the tribunal rejected her claims in their entirety (paragraph 66 of the tribunal’s reasons);[6]
[6] Court book filed 23 October 2017, p.141
b)the applicant did not lodge her visa protection application until approximately four years of first arriving in Australia, she having arrived on a three-month visa that expired, meaning that her stay in Australia up to her lodging the protection visa was unlawful for most of the time (paragraph 67 of the tribunal’s reasons);[7]
[7] Ibid
c)the applicant provided inconsistent evidence about her work history as well as about the places at which she said she had lived prior to her coming to Australia (paragraphs 69 and 70 of the tribunal’s reasons);[8]
d)it was implausible that the applicant agreed to guarantee her de facto partner’s gambling debts of unknown amounts (paragraph 71 of the tribunal’s reasons);[9]
e)it was implausible that the loan sharks loaned the applicant additional funds after she had already defaulted under then outstanding debts to the same loan sharks (paragraph 75 of the tribunal’s reasons);[10]
f)inconsistencies existed in the amounts the applicant said she had borrowed (paragraph 79 of the tribunal’s reasons);[11]
g)the tribunal found that based on the applicant’s inconsistencies in her evidence, contradictions and implausibility, her deceased de facto husband did not have debts when he died, that the applicant was neither guarantor for any debts nor was she a borrower for any other reason, the applicant did not have dealings with loan sharks, she was not threatened or physically assaulted or harmed in any way prior to coming to Australia (paragraph 81 of the tribunal’s reasons);[12]
h)the applicant was not of any adverse interest to anyone when she left Malaysia (paragraph 82 of the tribunal’s reasons);[13]
i)if the applicant returned to Malaysia now or in the reasonably foreseeable future, she does not face a real chance of persecution from any loan sharks (paragraph 82 of the tribunal’s reasons);[14]
j)the tribunal found the applicant had fabricated her political opinion claim (paragraph 83 of the tribunal’s reasons);[15]
k)the applicant did not have a well-founded fear of persecution by reason of her ethnicity (paragraph 90 of the tribunal’s reasons);[16] and
l)she did not have a well-founded fear of persecution by reason of her membership of the particular social group of guarantors from loan sharks, her Chinese ethnicity, her actual or implied political opinion or for any other Convention reason and therefore she did not meet the criterion of s.36(2)(a) nor under s.36(2)(aa) of the Act.
[8] Ibid
[9] Ibid
[10] Court book filed 23 October 2017, p.142
[11] Ibid
[12] Court book filed 23 October 2017, p.143
[13] Ibid
[14] Ibid
[15] Ibid
[16] Court book filed 23 October 2017, p.144
In this court
Being dissatisfied with the decision of the tribunal, on 6 April 2017, the applicant commenced this proceeding in this court. In it, she sought the issue of constitutional writs on the basis that when making its decision the tribunal had fallen into jurisdictional error. She relied on one ground. It was in the following terms that I set out verbatim –
The Administrative Appeals Tribunal committed jurisdictional error by failing to remain free of bias in its capacity as a decision-maker.
· In particular, the tribunal appeared to be biased by referring that the applicant adjusted evidence after the break during the tribunal hearing. The tribunal accepted that the adjustment of evidence undermined the credibility of the applicant’s claims, evident in its decision of 3 March 2017.
As will be apparent, the applicant did not say in what respect the applicant contended that the tribunal was not free from bias. In two sentences of her ground of review, the applicant spoke of “adjusted” evidence. It seemed she meant to convey that the tribunal recorded how the applicant altered her evidence. But that aside, the applicant gave no insight into her contention that the tribunal exhibited actual bias nor did she say that, if she did not allege actual bias, how any claim to apprehended bias was being asserted.
The absence of particulars carries with it adverse consequences according to a number of decided cases in the Federal Court of Australia. From the decision in WZATH v Minister for Immigration and Border Protection,[17] Siopis J is taken to have concluded that in respect of a ground of review expressed in such generality that it could not be taken to be a meaningful ground of review then the proceeding is amendable to being dismissed on that basis alone. Logan J stated in BHK15 v Minister for Immigration and Border Protection[18] that the applicant’s first ground of review in that case was expressed at such a level of generality as not to be meaningful in the absence of particularisation.[19]
[17] [2014] FCA 969
[18] [2016] FCA 569
[19] [2016] FCA 569
Logan J took a similar view in a slightly later decision in AQN15 v Minister for Immigration and Border Protection,[20] where his Honour held that no error was committed by the primary judge in that case, dismissing the proceeding by reason of the generality of, and the absence in, particularisation of grounds of review. In WZAVW v Minister for Immigration and Border Protection,[21] Gilmour J held that an unparticularised assertion of jurisdictional error is vague when it does not specify the nature of the jurisdictional error allegedly committed, and a failure to particularise a ground of review is a sufficient basis for dismissing the proceeding. In this case, the only ground of review alleged was unparticularised.
[20] [2016] FCA 571
[21] [2016] FCA 760
Consistent with the decisions in WZATH, BHK15, AQN15 and WZAVW, those unparticularised assertions of the existence of jurisdictional error in this case give no insight at all into the nature of the error the tribunal is alleged to have made. This proceeding is thereby amenable to dismissal on that basis alone.
There were no particulars in this case to the assertion that the tribunal was guilty of actual or apprehended bias. It was not possible to understand what the applicant contended in that regard. The assertion to ground 1 was unparticularised and therefore meaningless. From a reading of it, I was unable to gain any understanding of the way, and on what matters of fact or propositions of law, the applicant said the tribunal had fallen into jurisdictional error. Ordinarily, although by no means exhaustively, an applicant for judicial review contends that a tribunal –
a)identified a wrong issue for its consideration;
b)asked itself a wrong question;
c)took into account an irrelevant consideration;
d)failed to take into account a relevant consideration; or
e)in some instances, made an erroneous finding or reached a mistaken conclusion.
Those are the conventional forms of the existence of jurisdictional error as was described by the High Court in Craig v State of South Australia,[22] although no rigid taxonomy exists, as was held in Kirk v Industrial Court (NSW).[23]
[22] (1995) 184 CLR 163
[23] (2010) 239 CLR 531
Here, by reason of the broad and unparticularised nature of the single ground of review, it was not possible to say that the assertion of bias in some form had any prospect of success. If the applicant was relying on the concept of actual bias, she did not say what acts, facts, circumstances and things constituted the actual bias. Conversely, if she was relying on the apprehension of bias, a long line of cases has canvassed the complex considerations that attend that field, including the decisions in Re L; Ex parte L,[24] Ebner v Official Trustee in Bankruptcy,[25] Sharma v Minister for Immigration and Border Protection[26] and my own decisions in Singh v Minister for Immigration and Border Protection,[27] upheld in Singh v Minister for Immigration and Border Protection,[28] as well as in Howell v Carter (No 2).[29]
[24] (1986) 161 CLR 342
[25] (2000) 205 CLR 337
[26] [2017] FCAFC 227
[27] [2017] FCCA 247
[28] [2017] FCA 994
[29] (2017) 317 FLR 151
Today, when I asked the applicant about the bias alleged in the ground of review, the applicant told me she did not know what bias was. By reason of the absence of particulars, ground 1 rendered the proceeding amenable to dismissal in accordance with the decisions in WZATH, BK15, AQN15 and WZAVW.
In a show cause application the whole case may be dismissed if an arguable case for relief claimed is not shown. But a decision to summarily dismiss a proceeding is not to be made lightly, as the High Court has held in Spencer v Commonwealth[30] and as the Full Court of the Federal Court held in AMF15 v Minister for Immigration and Border Protection.[31]
[30] (2010) 241 CLR 118
[31] (2016) 241 FCR 30
That may have been enough to dispose of this case. However, two other decisions of the Federal Court of Australia have held that this court possesses a residual discretion such that it can refuse to summarily dismiss a case in the exercise of its discretion. Those cases are Siddique v Minister for Immigration and Border Protection[32] and SZTTW v Minister for Immigration and Border Protection.[33] In Siddique, Gilmour J held that the power in r.44.12 of the Federal Circuit Court Rules has two components to it. The first is the lack of satisfaction that an applicant has raised an arguable case for the relief claimed. The second is a residual discretion whether or not to dismiss the application.
[32] [2014] FCA 1352
[33] [2014] FCA 837
So far as the residual discretion is concerned, the merits of the application for judicial review are critical. It was therefore necessary for me to examine whether the applicant raised an arguable case for the relief she sought, and it was also necessary for me to examine the merits of the case in the overall. As Gilmour J held in Siddique, in very many cases, the answer to the first question will lead to the second question. In SZTTW, Beach J held, to like effect, that two questions are involved in any consideration of a summary dismissal application under r.44.12 of the Federal Circuit Court Rules.
Having considered the reasons of the tribunal in their entirety, it seemed to me that the reasons advanced by the tribunal were open on the material before it. It seemed to me that the findings reached by the tribunal between paragraphs 67 and 90 of the tribunal’s reasons were open on the material to which the tribunal had regard. It should not be forgotten that in this case the applicant applied for a protection visa four years after having been in the country. In Selvadurai v Minister for Immigration and Border Protection[34] Heerey J held that a 20 month delay in an application for refugee status was a factor relevant to the consideration of the tribunal.
[34] [1994] FCA 1105
Here the delay was substantially longer, a matter of obvious relevance to the tribunal and a matter upon which it was open for the tribunal to proceed in assessing the legitimacy of the protection visa application.
Conclusion
No arguable case was raised for the issue of constitutional writs on the basis that the tribunal had fallen into jurisdictional error on any of the grounds set out in Craig or on the basis that the tribunal was actually biased or on the basis that the tribunal exhibited an apprehension of bias.
This afternoon, I asked the applicant to tell me in her own words what she said the tribunal did wrong in this case. She gave two apparently contradictory reasons, but the latter of which seemed to me to be the most important. Initially, she said that the reason for applying for a protection visa was to stay in Australia. She then said that her true reason for raising a protection visa application was not to remain in Australia but rather to raise her child in a safe environment. While I fully understand her desire to raise her child in a safe environment, that is an altogether different matter than the legal matter that fell for my consideration on the application for judicial review of the tribunal’s decision in this case. It seemed to me that this was the very type of case for which the procedure set out in r.44.12 of the rules was intended.
I dismiss this proceeding and order the applicant to pay the minister’s costs fixed in the amount of $3,080.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 30 April 2018
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