BMY19 v Minister for Immigration

[2019] FCCA 3240

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMY19 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3240

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 438

Cases cited:

Minister for Immigration v SZMTA [2019] HCA 3

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

First Applicant: BMY19

Second Applicant: BMZ19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 909 of 2019

Judgment of: Judge Driver

Hearing date: 11 November 2019

Delivered at: Sydney

Delivered on: 11 November 2019

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Ms D Stone of Sparke Helmore

INTERLOCUTORY ORDERS

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

2. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 909 of 2019

BMY19

First Applicant

BMZ19

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 27 March 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. 

2. There are two applicants who are a husband and wife.  Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 4 November 2019. 

3. The first applicant (applicant), a citizen of the Republic of Korea (South Korea), applied for a protection visa on 5 January 2016.[1]  The application included the applicant’s wife (second applicant).[2]  On 19 May 2016, the delegate refused to grant the applicants visas.[3]

   [1] Court Book (CB) 1-44

   [2] CB 96

   [3] CB 96-103

4. On 1 June 2016, the applicants applied to the Tribunal for review.[4]  On 27 March 2019, the applicants appeared before the Tribunal to give evidence and present arguments, without the assistance of an interpreter.[5]  Later that day, the Tribunal affirmed the delegate’s decision to refuse to grant the applicants visas.[6]  On 28 March 2019, the Tribunal referred this matter to the Minister’s Department for consideration under the Ministerial intervention guidelines.[7]

   [4] CB 104-110

   [5] CB 135-137

   [6] CB 224-234

   [7] CB 235-236

Applicants’ claims

1. The applicant raised the following claims to fear harm in a statement provided with his visa application:[8]

   a)the applicant had been in Australia since June 1994;

   b)he had two sons and a daughter who were born in Australia and are Australian citizens.  His children would not be able to adjust to living in South Korea where they would be emotionally and physically harmed because they had never lived or received education in South Korea;

   c)South Korea is a good country and he did not experience physical harm there but he feared emotional and mental harm because it would be difficult to adjust to living there and the type of life he enjoys in Australia would not be available to him;

   d)he and his children would be prejudiced if they return to South Korea as he would have to sell his house in Australia, his children could speak Korean but were unable to read or write fluently in Korean.  South Korea would not have a suitable school for his children; and

   e)the political situation in Korea was heated and he feared something would happen in the near future which would affect his family.

   [8] CB 36-37

2. The second applicant did not make any claims in her own right.

Tribunal decision

1. The applicant gave evidence at the hearing that he was aware that he did not satisfy the requirements for a protection visa.  Both he and the second applicant requested that the Tribunal refer their application to the Minister for Ministerial intervention.[9]

   [9] CB 228, [25]-[26]

2. The Tribunal informed the applicants that their file contained a non-disclosure certificate issued under s.438 of the Migration Act 1958 (Cth) (Migration Act), which appeared on its face to be invalid. The Tribunal invited the applicants to comment on the validity of the certificate and the applicant responded that he thought it was a valid certificate.[10]  The Tribunal found that the certificate was not valid as it did not specify a reason that could form the basis for a claim of public interest immunity.[11]

   [10] CB 229, [28]

   [11] CB 229, [29]

3. The Tribunal found that the applicant was a credible witness and accepted that he applied for protection visas so that he and the second applicant could remain in Australia with their three children.[12]

   [12] CB 229, [30], [32]

4. The Tribunal accepted that it would be difficult for the applicant to establish himself and adjust to living in South Korea after his long absence.  The Tribunal also accepted that if his three children accompanied him to South Korea it would be very difficult for them to adjust to living and studying in South Korea.  The Tribunal was not satisfied that these difficulties amounted to serious or significant harm.[13]

   [13] CB 229, [33]

5. Having considered all of the applicant’s claims, individually and cumulatively, the Tribunal was not satisfied that the applicant met the requirements of s.36(2)(a) or s.36(2)(aa) of the Migration Act.[14] Accordingly, the Tribunal found the second applicant was unable to satisfy the criteria in s.36(2)(b) or s.36(2)(c) of the Migration Act.[15]

   [14] CB 229-230, [35], [38]

   [15] CB 231, [44]

6. The Tribunal considered the applicants’ request to be referred to the Minister for Ministerial intervention and found that there were circumstances in this case that justified referral.[16]

   [16] CB 230-231, [39]-[41]; CB 235-236

The present proceedings

1. These proceedings began with a show cause application filed on 11 April 2019.  The applicants now rely upon an amended application filed on 14 June 2019.  The grounds in that application are:

   1.In light of the Federal Court of Australia judgment of 4 April 2019 NSD1500 of 2018, Jabbour v Secretary Department of Home Affairs, the Ministerial Intervention Unit in their letter of 4 April 2019 acted unreasonably and denied me and my family ministerial intervention as recommended by the Tribunal and I do believe that my case was judicially reviewable for legal unreasonableness.

   2.I do believe that the Delegate of the Minister namely Rashmi, Position no 60019093, should not make the decision and assess that the request by the Tribunal does not meet the guidelines for referral to the Minister.

   3.The Tribunal was generous and sympathetic but failed to consider my fear of harm with my family should we be compelled to return to Korea.

2. In addition to the court book filed on 5 June 2019, I have before me as evidence the applicants’ affidavit filed with the show cause application and the affidavit of Toufic Laba Sarkis made on 27 May 2019.  Attached to that affidavit is a transcript of the hearing conducted by the Tribunal on 27 March 2019. 

Consideration

1. It is painfully obvious that the application for protection and these proceedings were strategic decisions by these applicants in order to deal with their predicament.  Their predicament is that they have been permitted to remain in Australia for approximately 25 years.  In that period they have put down roots and have had three children, all of whom are Australian citizens.  They wish to remain in Australia and support their children through their education. 

2. The applicants were frank and honest with the Tribunal in explaining their circumstances.  The Tribunal accepted the frankness and honesty of the applicants and referred the case for Ministerial consideration.  That request was unsuccessful.  Indeed, I understand from the applicants that the request was not passed on to the Minister by the Minister’s Department.  The applicants handed up written submissions in court today in which they take issue with that matter.  That issue is beyond the scope of this proceeding, except to say that the answer to the applicants’ predicament ultimately lies with the Minister. 

3. The applicants have investigated various forms of visa application, but the only ones suitable to their circumstances appear to have Schedule 3 criteria attached to them.  The Schedule 3 criteria would require them to return to South Korea and apply from there.  That is not something the applicants want to do because it would either separate them from their children or interrupt their education.  The purpose of any future request for Ministerial intervention, as I explained to them, would be to ask that the Minister direct his mind to the proposition that the Schedule 3 criteria should be waived.  That is, of course, entirely a matter for the Minister, but it does appear to me to be a practical and humane solution which would permit the applicants to make their case in Australia for some new form of visa. 

4. There is no substance to the grounds of review advanced by the applicants.  The Minister’s submissions deal with those grounds, and I agree with them. 

5. Grounds 1 and 2 are misconceived in seeking review of the decision of a delegate of the Minister not to refer the request for Ministerial intervention to the Minister.  The request for Ministerial intervention is not the subject of these judicial review proceedings.  Further, it is not relevant to establishing whether there was any jurisdictional error in the Tribunal’s decision in circumstances where the request for referral was denied by the Minister’s Department after the Tribunal’s decision was made.  Further and in any event the Tribunal did refer the matter for Ministerial intervention.

6. Ground 3 is merely a broad assertion of error that without further particulars fails to identify any jurisdictional error in the Tribunal’s decision. The Tribunal correctly set out the criteria in s.36 of the Migration Act.[17] On a review of the material before the Court, including the transcript of the Tribunal hearing, the Tribunal considered and made findings in relation to all of the claims raised by the applicants. The applicant accepted that they did not meet the criteria for the grant of protection at [25].

   [17] CB 226, [10]-[14]

7. The Tribunal accepted the applicant’s claims that it would be difficult for the applicant and his children to adjust to living in South Korea, but was not satisfied any difficulties would amount to serious or significant harm.[18]

   [18] CB 229, [33]

8. The Tribunal recognised the applicant’s claim to fear harm because the political situation in South Korea is “heated” and he feared something would happen in the future.[19]  The Tribunal concluded, on the basis of the applicant’s evidence that he applied for protection so that he and the second applicant could remain in Australia with their children, there was no real chance or real risk the applicant would suffer serious or significant harm for any of the reasons claimed if he returned to South Korea now or in the reasonably foreseeable future.[20]  While the Tribunal did not expressly consider the political situation in South Korea, the Tribunal’s findings were sufficient to deal with this claim, especially in circumstances where no further evidence was provided to support it and at the hearing the applicants acknowledged that they did not meet the protection criteria and the applicant accepted he did not meet the criteria for the grant of the visa.[21]

   [19] CB 227, [16]

   [20] CB 229, [34]

   [21] Transcript page 11 lines 13-14, page 13 lines 1-6, page 15 lines 1-4, page 18 lines 5-10

9. The Tribunal’s findings were open to it for the reasons it gave and this ground goes no further than to seek impermissible merits review.[22]

   [22] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

10. Accordingly, the grounds in the amended application do not raise an arguable case for the relief sought.

11. The Minister also properly raises an issue of a s.438 certificate.[23]  The certificate was properly dealt with by the Tribunal, and no arguable case of error arises. 

    [23] CB 117

12. The certificate covered a disclosure checklist, onshore protection 866 processing checklist and email to the applicant.[24]  The certificate was issued on the basis it would be contrary to the public interest to disclose the information because it related to “an internal working document and business affairs”.

    [24] CB 118-122

13. As was found by the Tribunal, the certificate was invalid as the specified reason for the non-disclosure was not capable of grounding a claim of public interest immunity.[25]  There was no breach of procedural fairness in circumstances where the Tribunal informed the applicant at the hearing of the existence of the certificate, the documents it covered and invited the applicant to comment on the validity of the certificate, which he did.[26]

    [25] CB 229, [29]; Minister for Immigration v SZMTA [2019] HCA 3 at [19], [39]-[40]

    [26] CB 229, [28]; Transcript page 15-16; SZMTA at [29]-[31]

Conclusion

1. I conclude that the applicants are unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant indicated that he had no contest with the issue of costs.

3. I will order that the applicants pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:         13 November 2019