BNR16 v Minister for Immigration

[2017] FCCA 1938

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNR16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1938

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal’s decision was affected by an apprehension of bias or actual bias – whether the Tribunal erred by not providing the applicant with particulars under s.424A of the Migration Act 1958 (Cth) – whether the applicant was denied procedural fairness – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA

Cases cited:

SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26

First Applicant: BNR16

Second Applicant: BNS16

Third Applicant: BNT16

Fourth Applicant: BNU16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1596 of 2016

Judgment of: Judge Smith

Hearing date: 17 July 2017

Date of Last Submission: 17 July 2017

Delivered at: Sydney

Delivered on: 17 July 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms S. He, Mills Oakley

ORDERS

1. The application be dismissed.

2. The first, second and third applicants pay the first respondent’s costs fixed in the amount of $5,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1596 of 2016

BNR16

First Applicant

BNS16

Second Applicant

BNT16

Third Applicant

BNU16

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for a judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 June 2016.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicants protection visas.  The relevant background and claims are set out accurately in [2] to [10] of the respondent’s written submissions and I will adopt those submissions for the purposes of these reasons and set same out below:

   Background and the Applicants’ case

   2.The first applicant (the applicant) is a male citizen of Malaysia. The second, third and fourth applicants are the applicant's children who applied for protection visas as members of his family unit. The applicant arrived in Australia on 2 April 2010 and the applicants made their Protection visa applications on 4 April 2014: CB 9-209.

   3.The applicant set out his claims in a statutory declaration dated 24 March 2014, in which he claimed to have operated three family businesses and to fear harm from gangsters: CB 3-5.  He claimed to have been harmed on a number of occasions in the past. On 22 June 2006, he received threats of violence over the telephone against him and his family. On 6 July 2006, he lodged a complaint with the police that a man followed his mother home. On 25 April 2008, the applicant was attacked and abducted by four Malay Muslim men who demanded a large sum of money which the applicant paid. In December 2008, a customer of the applicant's restaurant business threatened to cause problems unless the applicant offered him a refund. On 2 May 2009, Chinese men came to his restaurant to demand payment for invoices. In May 2009, Chinese men caused a disturbance at the family's home and the applicant was demanded to pay a debt. On 31 July 2009, his staff resigned “en masse” after they had embezzled money from him and on 11 September 2009 his restaurant manager received a phone call from a hitman (Mr Chan) who said he had been hired to destroy the applicant's business and his family but would accept RM 50,000 not to do so. The applicant abandoned his restaurant in and came to Australia on 2 April 2010 on a Tourist visa. The applicant returned to Malaysia on 5 June 2010 and was targeted by gangsters. After travelling back to Australia, he again returned to Malaysia on 17 July 2010 and was again harassed by gangsters. The applicant re-entered Australia on 28 July 2010 on a Student visa. The applicant claimed to have made a number of reports to the police in respect of these incidents, which he provided along with his visa application: CB 94-120.

   4.The applicant attended an interview with the Department on 5 November 2014: CB 232.

   5.On 3 December 2014, a delegate of the Minister refused to grant the visa application: CB 227-239. The delegate found that the applicant's fear of returning to Malaysia was of a “criminal nature” and that his fear did not fall within the Refugees Convention grounds of race, religion, nationality, or political opinion. The delegate found country information indicated that he could obtain state protection such that he would not face a real risk of significant harm.

   6.The applicant applied for review of the delegate's decision on 23 December 2014: CB 240-242.

   7.On 5 April 2016, the applicant was invited to attend a hearing on 12 May 2016: CB 248-250. A request for postponement by the applicant's migration agent was refused: CB 254-257; CB 278, [7].

   8.The applicant and representative appeared at the scheduled hearing on 12 May 2016, which was adjourned as the applicant indicated that he had difficulty understanding the Malay interpreter: CB 262-264; CB 278-279, [8].

   9.The applicants were invited to (CB 265-267) and attended a resumed hearing on 13 May 2016 with the assistance of a Cantonese interpreter: CB 270-273; CB 279, [9]-[1 O].

   10.On 2 June 2016, the Tribunal affirmed the delegate's decision: CB 277-293.

   (Emphasis and errors in original)

Tribunal’s decision

1. The Tribunal’s decision was based upon its rejection of the applicant’s claims on a factual basis.

2. The Tribunal found that the first applicant was evasive, vague and contradictory.  The Tribunal found that some of his claims were implausible and that during the hearing the applicant was fabricating his evidence as he was giving it.  As a consequence, it found that the first applicant had fabricated most of his material claims and it rejected them.  For those reasons, the Tribunal found that the applicants did not satisfy the criteria for the grant of protection visas and affirmed the delegate’s decision.

First Ground

1. In their amended application the applicants raised four grounds. The first is that the Tribunal misconstrued the risk and fear of significant harm as set out in s.36(2A) of the Migration Act 1958 (Cth) (Act). Section 36(2A) relevantly provides for the meaning of “significant harm” for the purpose of s.36(2)(aa) of the Act. It may be accepted that if the Tribunal had misconstrued the meaning of that term, then it might have fallen into jurisdictional error. However, there is nothing in the Tribunal’s reasons to suggest that it did misconstrue that provision.

2. First, as I have observed, the Tribunal rejected most of the applicants’ material claims at a factual level. Secondly, insofar as there remained any factual claims after those findings, the Tribunal found that in the circumstances there was no real risk of the harm claimed arising. In those circumstances, it was not a necessary part of the Tribunal’s decision to determine whether the harm feared by the applicants might amount to significant harm within the meaning of s.36(2A) of the Act. For that reason, as the question did not arise, the Tribunal did not fall into the error alleged in ground 1.

Second Ground

1. The second ground is that the Tribunal failed to comply with s.424A of the Act. The ground in the application does not specify what information it is said gave rise to that obligation. However, [58] and [59] of the Tribunal’s reasons suggest that the Tribunal did make an attempt to comply with its obligation under s.424A of the Act. It appears that the information that the Tribunal considered might be the reason, or part of the reason for its decision, was that the applicant had returned to Malaysia from Australia on two occasions, once in June 2010 and once in July 2010.

2. However, in my view, no obligation arose under s.424A in respect of that information. First, it did not in and of itself, undermine the applicant’s claim to be a refugee or otherwise to be owed protection by Australia: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [17]. Secondly, and in any event, that information was contained in the delegate’s decision, a copy of which was sent by the applicant to the Tribunal with his application for review.

3. In those circumstances, the information was given to the Tribunal by the applicant and so fell outside the scope of s.424A(1): see sub-s.424A(3)(b). Further, and in any event, the Tribunal stated that it complied with s.424AA of the Act. There is no evidence to suggest that it was incorrect to say so. If it was correct, then the Tribunal had no obligation to give written particulars to the applicant in respect of that information. For those reasons, the second ground is rejected.

Third Ground

1. The third ground is the Tribunal had no jurisdiction to make the decision because its satisfaction was not arrived at in accordance with the Act. I understand this ground simply to be another way of saying that the Tribunal fell into jurisdictional error. However, there were no particulars in the amended application, the applicant did not file written submissions and did not expand upon this in his oral submissions at the hearing today. For that reason, I leave the ground to one side and consider it no further.

Fourth Ground

1. The fourth ground is that the Tribunal failed to investigate the applicants’ claims and therefore, the decision of the Tribunal was affected by actual bias.  The state of mind described as “actually biased” is one which has so prejudged a matter as to be incapable of alteration.  An allegation of bias is extremely serious; it must be clearly established.  On its face, the ground is that actual bias is established by a failure to investigate claims.  It is not clear what is meant by “investigate” in this context and, once again, no particulars of the ground have been given by the applicant.

2. In his oral submissions, the applicant suggested that the Tribunal had failed to investigate all the material.  That submission suggested to me that what the applicant meant by the word “investigate” was “to accept as truthful”.  If that is what is meant, then it is undoubtedly true that the Tribunal failed to investigate the applicants’ claims.  That is because it rejected all of them.  However, that does not establish actual bias.  It simply shows that the Tribunal, having considered the material before it, was not satisfied of their credibility, including the credibility of the evidence of the applicant.  For that reason, on that understanding of the meaning of the word “investigate”, the ground must be rejected.

3. However “investigate” can also mean “to make inquiries into”.  There are two ways of making inquiries into something.  The first is to ask questions about that thing or matter.  On that understanding, the Tribunal did investigate the applicants’ claims.  At the hearing that it conducted, the Tribunal asked the first applicant a number of questions about his claims.  In that way, it undertook an investigation into those claims and the ground would be rejected if that were the proper understanding of what was meant by “investigation”. 

4. The second way of making inquiries into something is for the Tribunal to exercise its powers to obtain information from people other than the applicants.  Grounds relying on this type of investigation often refer to what is called the “duty to inquire”.  However, as has often been explained, there is no such duty, speaking in general terms, although it may be that where there is an obvious inquiry that can be made in respect of critical material, the Tribunal might fall into jurisdictional error by failing to make that inquiry.

5. Here, the applicant has not suggested, and there does not appear, on my reading of the material, to have been any such obvious inquiry which the Tribunal could have made.  In any event, I cannot see any connection between the failure by the Tribunal to exercise any of its powers of inquiry and the probability that it had prejudged the applicants’ case, or importantly, that it had prejudged the case to such an extent that it was neither willing, nor able to change its mind, regardless of the evidence or claims made before it.  For all of those reasons, I would reject ground four. 

6. There is no jurisdictional error in the Tribunal’s decision.  The application must be dismissed. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     17 August 2017