Bod17 v Minister for Immigration

[2019] FCCA 1665

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOD17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1665

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – whether the applicant was asked misleading questions by the Tribunal – whether the Tribunal failed to consider whether the delegate had disclosed information properly – whether the Tribunal failed to consider the applicant’s health during the hearing – where the applicant lodged an application in order to extend his stay in Australia – application dismissed.

Applicant: BOD17

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1096 of 2017

Judgment of: Judge Humphreys

Hearing date: 17 June 2019

Date of Last Submission: 17 June 2019

Delivered at: Parramatta

Delivered on: 17 June 2019

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the Respondents: Mr Valliappan, DLA Piper

ORDERS

1. The first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1096 of 2017

BOD17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EXTEMPORE JUDGMENT

(Revised from Transcript)

1. The applicant is a citizen of Malaysia. The applicant applied for a protection visa on 5 August 2016. On 18 November 2016, a delegate of the Minister refused the visa. The applicant sought a merits review by the Administrative Appeals Tribunal (“the Tribunal”). On 17 March 2017, the Tribunal affirmed the decision of the delegate. The applicant now seeks judicial review of the Tribunal decision.

2. The applicant’s claims are set out in paragraphs 11 to 13 of the Tribunal decision. They may be summarised as follows:

   ·    The applicant claims to be part of the ‘Bersih’’ group and the Malaysian government were pursuing that group.

   ·    If returned to Malaysia, the applicant fears being caught by the police, questioned, jailed and his life will be in danger.

The Tribunal Decision

1. At paragraphs 15 to 16 of the decision, the Tribunal noted the applicant had attended the hearing and given evidence. The applicant then told the Tribunal that the claims in his protection visa had been fabricated by his migration agent. He stated he knew nothing about the ‘Bersih’ group and had not been involved in politics in any way in Malaysia.

2. At paragraph 18 the applicant told the Tribunal he did not think he would suffer persecution or significant harm if he was returned to Malaysia and that he wanted to remain in Australia a little bit longer to continue working. As a consequence, the Tribunal affirmed the delegate’s decision.

Grounds of appeal

1. Three grounds of appeal were filed in the application before this Court. They are set out below as follows:

   1) The Tribunal asked me misleading questions.

   2) The Tribunal did not consider whether the delegate disclosed information properly.

   3) My mind was not clear during the AAT hearing, and the Tribunal did not consider my physical condition.

Consideration

1. During the course of the hearing, the applicant was asked by the Court as to whether or not he still maintained that the claims that he was part of the ‘Bersih’ group were fabricated by his migration agent. The applicant told the Court that they were. The applicant was asked why, if that was the case, he appealed to this Court. The applicant told the Court that he appealed to this Court on the basis that it would allow him to be able to continue to remain in Australia. To that extent, his appeal has been remarkably successful.

2. The Tribunal decision was on 17 March 2017 and this appeal is now being held on 17 June 2019, some two years and two months after the original decision. It is a regrettable fact that the applicant’s actions could be viewed as being an abuse of the process in that his appeal heard here today was lodged for the sole purpose of ensuring that he would be able to continue to stay in Australia and continue to work.

3. Be that as it may, there are three grounds of appeal before the Court which must be considered. As to Ground 1, no particulars are provided as to what misleading questions were asked. The decision record shows that the applicant had every opportunity to put forward his case and that the Tribunal engaged with him and indicated the issues he had in relation to his claim. I can find no apparent jurisdictional error and this ground cannot succeed.

4. Ground 2 is misconstrued. It was a de novo hearing, not a legal review of the conduct of the delegate. There was no jurisdictional error apparent from the decision of the Tribunal.

5. In relation to Ground 3, no evidence has been supplied to support the claim that the applicant was unfit and denied the opportunity to put his case to the Tribunal. If anything, his evidence here today affirms the position that he well-understood what was happening. Indeed, if anything, the entire process has been a sham designed specifically for the purpose of extending his stay in Australia.

6. The application for review is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Date: 25 July 2019