BRB16 v Minister for Immigration
[2019] FCCA 430
•27 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRB16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 430 |
| Catchwords: MIGRATION – Protection (Class XA) subclass 866 visa – review of decision of the Administrative Appeals Tribunal (AAT) – where the AAT affirmed decision of the delegate – grounds of judicial review unparticularised – no basis for Applicant’s claim that the AAT did not conduct a proper review – where the AAT afforded the Applicant procedural fairness – where the Applicant seeks impermissible merits review – application dismissed with costs. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 414, 476 Federal Circuit Court Rules 2001 (Cth), sch.1, pt.3 |
| Cases cited: AXR16 v Minister for Immigration and Border Protection [2019] FCA 42 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 |
| Applicant: | BRB16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1417 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 8 May 2018 |
| Date of Last Submission: | 8 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 27 February 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the First Respondent: | Ms Kowalewska of Australian Government Solicitor |
| Solicitors for the Second Respondent: | The Second Respondent filed a submitting notice save as to costs |
ORDERS
The Application filed on 4 July 2016 is dismissed.
The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1417 of 2016
| BRB16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant is a national of Malaysia who arrived in Australia on 1 March 2010 as the holder of a class UD subclass 976 visitor or Electronic Transfer Authority visa, which expired on 1 June 2010. The Applicant remained in Australia as an unlawful non-citizen until he applied for a Protection (class XA) subclass 866 visa (Visa) on 28 August 2015. On 9 March 2016 a delegate of the First Respondent (Delegate) determined that the Applicant did not satisfy the relevant criteria for the grant of the Visa.
On 15 June 2016 the Administrative Appeals Tribunal (Tribunal) affirmed the decision of the Delegate. The Applicant has applied for judicial review pursuant to s.476 of the Migration Act 1958 (Cth) (Act) of the decision of the Tribunal.
Synopsis
I have determined that each of the two grounds of the application should be dismissed with costs of $6,000 to be paid by the Applicant to the First Respondent (Minister).
Background
The Applicant who is a citizen of Malaysia was born on 13 May 1981 and is now 37 years old. The Applicant claims that his ethnicity is Chinese Malaysian and his religion is Buddhist[1].
[1] Court Book (CB) 14, at [33] and [34].
The Applicant applied for the Visa on 28 August 2015[2]. The Applicant’s claims were set out in a statement of claims attached to his Visa application (Statement of Claims) which said:
[2] CB 11-47.
I am a [….], from Malaysia.
Malaysia is a country of three races. Including Indians, Chinese in Malaysia, as well as Muslims. Muslims in Malaysia accounted for the majority of. I received a bunch of political background of the underworld oppressed in Malaysia. I chose to leave Malaysia in the case of last resort. I hope to get a protection. I hope to get a protection from Australian government[3]. (Errors and omissions in original).
[3] CB 46.
The Delegate determined on 9 March 2016 that the Applicant did not satisfy the relevant criteria for the grant of the Visa (Delegate’s Decision)[4]. The Delegate’s reasons for decision included the following:
The applicant provided vague information and minimal detail in his protection visa application. No evidence was provided to support the applicant’s claims and when considering this against his residence in the Australian community for more than five years before lodging an application for a protection visa, I have significant doubts regarding the veracity of the applicant’s claims[5].
[4] CB 52-59.
[5] CB 58.
Tribunal Decision
On 22 March 2016 the Applicant filed an application for review of the Delegate’s Decision in the Tribunal[6]. On 17 May 2016 the Applicant was sent an invitation to attend a hearing at the Tribunal in Melbourne on 10 June 2016[7]. The Applicant completed a response to hearing invitation, dated 23 May 2016 and returned it to the Tribunal[8].
[6] CB 60-61.
[7] CB 62-64.
[8] CB 65-67.
A hearing took place at the Tribunal on 10 June 2016 (Tribunal Hearing). The Applicant attended the Tribunal Hearing and was assisted by a Mandarin interpreter[9]. The Applicant provided oral evidence at the Tribunal Hearing which included evidence that:
a)While in Pinang he was twice targeted by a gang of Malays. The first incident took place about nine months prior to the Applicant departing from Malaysia to Australia. In this incident the Applicant claimed he was hit by the gang members although he had done nothing to provoke the attack. The second incident took place about six months before he departed Malaysia. During this incident the Applicant claimed he was struck with a motorcycle helmet and required stitches in his head. The Malay gang did not insult him but they stole his money[10].
b)He was “bullied” and “belittled” by the chefs in the restaurant in which he worked in Kuala Lumpur[11].
c)He had sought protection of the police when he ran a street stall and a gang of Malays asked for protection money. He said the police did not do anything and so he found another job[12].
d)He had initially come to Australia for a holiday and had originally intended to return to Malaysia but the money for his return ticket was stolen and he “[…] could not afford a return ticket and needed to work in Australia”. He had initially wanted to:
[…] start life over again in Malaysia but afterwards he became afraid of being hit by gangs so he decided to remain in Australia for a while[13].
e)He was afraid of being bullied in Malaysia and he said that he had been “[…] bullied since he was young, even from Chinese people and that he feels threatened by everybody”[14].
f)He claimed that he had first heard about protection visas about three years earlier but did not apply as he had heard that it cost $4,000 to $5,000 to apply. He said that he consulted a migration agent or lawyer in June 2015[15].
[9] CB 71, [4].
[10] CB 73, [25].
[11] CB 73, [26].
[12] CB 73, [27].
[13] CB 73, [28].
[14] CB 74, [30].
[15] CB 74, [31].
The Tribunal affirmed the Delegate’s Decision on 15 June 2016 (Tribunal Decision)[16]. The Tribunal Decision commenced by setting out the law relevant to the Visa application and the claims made by the Applicant, which were made in the Statement of Claims and in the oral evidence that the Applicant gave at the Tribunal Hearing.
[16] CB 70-83.
The Tribunal found that the Applicant was a citizen of Malaysia[17] and found the Applicant to overall be a credible witness, despite some inconsistencies[18]. The Tribunal accepted that the Applicant had been attacked twice by a Malay gang and that he had experienced bullying in various jobs and workplaces[19]. However the Tribunal found that the gang attacks were opportunistic and it was not satisfied that these attacks were motivated:
[…] for any one or more of the reasons outlined in s.5(1)(a), including the applicant’s race or religion that would indicate he would be targeted in the future for serious or significant harm, if the applicant returned to Malaysia[20].
[17] CB 74, [34].
[18] CB 74, [42].
[19] CB 76, [44].
[20] CB 76, [45].
The Tribunal took into account the Applicant’s delay in applying for protection. It did not accept the Applicant’s explanation for the delay that it was too expensive to apply earlier. The Applicant was earning money, had no family and made no claims that he was sending money to anyone. The Tribunal found that the Applicant’s fear of gangs in Malaysia “[…] lacked urgency and depth”[21].
[21] CB 76-77, [47]-[48].
The Tribunal considered the relevant country information and the Applicant’s evidence and found that the Applicant did not face a real chance of serious harm from the Applicant’s accepted fears of gangs in Malaysia[22].
[22] CB 78, [50].
The Tribunal also found the Applicant made no claim that the bullying he experienced at various times was motivated by one or more of the reasons mentioned in s.5J(1)(a) of the Act. The Tribunal found that the Applicant did not face a real chance of serious harm arising from his claims of bullying[23].
[23] CB 79, [59].
Having considered the Applicant’s claims both individually and cumulatively, the Tribunal found that the Applicant did not have a well-founded fear of persecution for one or more of the reasons mentioned in s.5J(1)(a) of the Act. Accordingly the Tribunal found the Applicant was not a person in respect of whom Australia has protection obligations[24].
[24] CB 80, [46]-[65].
In considering the complimentary protection criterion, the Tribunal was not satisfied on the evidence before it that as a necessary and foreseeable consequence of the Applicant being removed to Malaysia, there was a real risk he would suffer significant harm now or in the future either on account of the harm feared from Malay gangs or arising out of the claims about bullying[25].
[25] CB 79, [62]-[63], CB 80, [68].
The Tribunal therefore affirmed the Delegate’s decision not to grant the Applicant the Visa[26].
[26] CB 80, [69]-[72].
Judicial Review
In his application for judicial review filed on 4 July 2016 (Application), the Applicant specified the following grounds of judicial review (Grounds of Application):
Ground 1: The Tribunal acted under dictation of the delegate to the Department of Immigration. On the facts, it did not conduct a proper review of the decision. Rather, the Tribunal merely echoed the delegate’s considerations. The Statement of Decision and Reasons does not reflect a proper analysis and consideration of the evidence (sic) (Ground One).
Ground 2: The Tribunal was too rigid in applying its policies and did not have regard to the individual merits and circumstances of the Applicants’ case at the time of the delegate’s decision (sic) (Ground Two).
The application was supported by an affidavit deposed to by the Applicant on 4 July 2016 and filed that day (Affidavit). The Affidavit annexes a copy of the Tribunal Decision. The Applicant says in the Affidavit the following:
I did not have enough time to prepare for the [Tribunal] hearing and I was not provided with enough time to explain my circumstances. I tried to explain my story to the [Tribunal] however they did not consider my circumstances[27].
[27] Affidavit, at [8].
The Response of the Minister was filed on 18 July 2016 (Response). The Response seeks orders that the Application be dismissed and that the Applicant pay the Minister’s costs of the proceeding. The Response contends that the Tribunal Decision is not affected by jurisdictional error.
On 7 December 2016 Orders were made for the Applicant to file and serve any amended application with proper particulars of the grounds of the Application and written submissions 28 days before the final hearing. The Applicant did not file any further documents. The Minister filed written submissions on 23 April 2018.
Consideration
Ground One
The Applicant in Ground One claims that the Tribunal did not conduct a proper review of the Delegate’s Decision and that the Tribunal merely “[…] echoed the delegate’s considerations”.
The Applicant does not provide any particulars as to the basis of his claim the Tribunal:
a)Did not conduct a proper review.
b)Did not properly analyse and consider the evidence.
The consequence of a failure to particularise a claim has been considered in a number of migration cases. Recently Colvin J said in DQQ17 vMinister for Immigration and Border Protection[28]:
[28] [2018] FCA 784.
[8] The consequences of a failure to particularise a ground depend upon the circumstances.
[…]
[9]However, it will rarely be appropriate to dismiss an appeal ground (or a review ground) in a migration case for lack of particularisation where, as here, the appellant (applicant below) seeks relief in respect of a decision concerning an application for a protection visa and the person is appearing on his or her own behalf. In such cases, it is usually appropriate for the party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review) ground. Also, the Court is greatly assisted in these cases by the Minister’s discharge of responsibilities as a model litigant in drawing the attention of the Court to any matters known to the Minister through informal communications or consideration of the relevant matters as being underlying concerns that the appellant seeks to raise.
[10] Further, in these cases, a submission by counsel appearing for the Minister that a decision under appeal is not attended with any doubt, or sufficient doubt or error must reflect the independent judgment of counsel after considering all the materials in performance of counsel’s paramount duty to the Court. It is not to be based upon the lack of particularisation of grounds by an appellant who is appearing in person[29].
[29] Ibid., at [8]-[10].
At the hearing before this Court the Applicant was afforded the opportunity to explain the Grounds of Application further, with the assistance of a Mandarin interpreter, however no further relevant explanation was provided by the Applicant.
It was the Minister’s submission that the Applicant’s complaint that the Tribunal did not conduct a proper review but merely “[…] echoed the delegate’s considerations”, was without merit. It was submitted that the Tribunal discussed with the Applicant and considered at length the Applicant’s claims and oral evidence. It was further submitted that the Tribunal’s reasons for decision show a thorough consideration of the Applicant’s claims and evidence that were before the Delegate and before the Tribunal. For the following reasons I agree with those submissions.
Section 414 of the Act requires the Tribunal to review Part 7-reviewable decisions. The section provides:
414(1) Subject to subsection (2), if a valid application is made under section 412 for review of a Part 7-reviewable decision, the Tribunal must review the decision.
Thawley J recently considered how a review must be carried out under pt.7 of the Act in AXR16 v Minister for Immigration and Border Protection[30]. His Honour said:
A “review” contemplates a consideration and evaluation of the evidence and material before the Tribunal and of the arguments and issues which arise: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [45]; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431.
At least in the circumstances of the present case, where both the “refugee criterion” and the “complimentary protection criterion” were in issue, the Tribunal’s task on a “review” of a decision not to grant a protection visa includes determining whether it is satisfied that the criteria in ss 36(2)(a) and (aa) are satisfied: s65(1); MZYTS at [32][31].
[30] [2019] FCA 42.
[31] Ibid., at [37] and [38].
In Minister for Immigration and Border Protection v MZYTS[32] the Full Court of the Federal Court said:
[…] the terms of ss 65 and 36(2)(a), read with the content of Art 1 of the Refugees Convention, required the Tribunal to assess and determine what might happen to him if he were compelled to return there […], or in the near future thereafter.
That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground […] for him if he were to be returned there. While it is most certainly the case that “[i]t is for the applicant to advance whatever evidence or argument she [or he] wishes to advance in support of her [or his] contention that she [or he] has a well- founded fear of persecution for a Convention reason”, the Tribunal “must then decide whether that claim is made out”: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187] [33].
[32] [2013] FCAFC 114.
[33] Ibid., at [37]-[38].
In this case the Applicant’s claims for protection that were submitted with the Visa application are set out in the Statement of Claims. The content of this document is meaningless in the context of articulating any identifiable reason that the Applicant claimed protection. The Delegate’s Decision specifically states that the Applicant provided “vague information and minimal detail in his protection visa application” and “that no evidence was provided to support the applicant’s claims”[34] .
[34] CB 58.
The Tribunal noted that the Applicant was seeking protection in Australia on the basis of the matters set out in the Statement of Claims and that no further documents or statements had been submitted by the Applicant to the Minister’s Department[35]. The Tribunal described the Applicant’s claims as being “very limited and vague claims”[36].
[35] CB 72-73, [17]-[18].
[36] CB 73, [22].
The Tribunal set out in detail the further evidence that the Applicant gave at the Tribunal Hearing, noting the questions that the Applicant was asked by the Tribunal and the responses received[37]. I refer otherwise to paragraph 8 above. The Tribunal also asked the Applicant what was meant in his Statement of Claims “[…] which the Tribunal found to make little sense in English”. The response is recorded as:
[…] the applicant s[t]ated that the Malays have the political background to make[38].
[37] CB 73-74, [22]-[31].
[38] CB 74, [32].
In relation to the Applicant’s complaint in the Affidavit[39] that he was not provided with enough time to explain his circumstances, the Tribunal records that the Applicant made no request to make a further submission[40]. There is no evidence that the Applicant made any request for an adjournment of the Tribunal Hearing date.
[39] Affidavit, at [8].
[40] CB 74, [33].
The Tribunal otherwise considered the matters as set out in paragraphs 9-16 above.
I am satisfied that the Tribunal took time to question the Applicant and to obtain evidence from the Applicant, in order to be able to understand his claims for protection. Having obtained that evidence from the Applicant, the Tribunal evaluated the evidence before it. In this case as both the “refugee criterion” and the “complementary protection criterion” were in issue, the Tribunal undertook the task of determining whether the criteria in ss.36(2)(a) and (aa) of the Act were satisfied. I am also satisfied that the Tribunal gave proper consideration as to what might happen to the Applicant if he were compelled to return to Malaysia[41].
[41] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, at [37]-[38].
For the foregoing reasons I find that Ground One does not give rise to jurisdictional error.
Ground Two
The Applicant in Ground Two claims that the Tribunal was “too rigid in applying its policies” and that it did not have regard to the Applicant’s individual circumstances at the time of the Delegate’s Decision.
The Applicant has again not provide any particulars of the claims made in Ground Two. I will again adopt the approach recommended by Colvin J in DQQ17 v Minister for Immigration and Border Protection[42] for where an applicant is acting on his own behalf.
[42] [2018] FCA 784, at [8]-[10].
As noted above at paragraph 24, the Applicant was afforded the opportunity to explain the Grounds of Application however no further relevant explanation was provided.
The Minister submits that as Ground Two is unparticularised it is without merit. It is submitted by the Minister that the Tribunal discussed with the Applicant his claims and considered his case as presented in detail.
It is submitted by the Minister that the Applicant’s complaint appears to be an expression of his disagreement with the Tribunal’s decision. The Minister contends that the Second Ground is inviting impermissible merits review. I agree with that submission. The Minister relied on Minister for Immigration and Ethnic Affairs v Wu Shan Liang[43] where Brennan CJ, Toohey, McHugh, and Gummow JJ said
[…] The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon a refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court[44] (footnotes omitted).
[43] (1996) 185 CLR 259.
[44] Ibid., at 272.
The Minister also relied upon Minister for Immigration and Citizenship v SZJSS[45] where the full bench of the High Court[46] said:
General principles governing the limited role of the courts in reviewing an administrative error have long been identified. As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd “mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions” is not a sufficient reason for over turning a judicial decision upon a review. Further, Brennan J said in Attorney-General (NSW) v Quinn:
“The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone”[47] (footnotes omitted).
[45] (2010) 273 ALR 122.
[46] French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[47] Ibid., at [23].
The Minister further submits that the Tribunal Decision does not indicate that it failed to accord procedural fairness to the Applicant or that it failed to comply with any of the statutory procedures required by div.4 of pt.7 of the Act. The Applicant was invited to and attended a hearing before the Tribunal at which he gave evidence and presented arguments.
The Minister contends that the Tribunal addressed all of the Applicant’s claims and did not fail to take into account any relevant considerations. The Tribunal correctly stated the relevant legal principles and its reasons for decision disclose no misunderstanding or misapplication of those principles to the Tribunal’s findings.
It was also submitted on behalf of the Minister that the Tribunal’s findings were open to it on the evidence and that the findings are not illogical or irrational.
I agree with the Minister’s submissions. Accordingly, I find that Ground Two does not give rise to jurisdictional error.
Conclusion
For the foregoing reasons I will dismiss Ground One and Ground Two of the Application.
The Minister seeks costs of $6,000. This is less than the sum of $7,328 which is the amount allowed in sch.1, pt.3, item 3 of the Federal Circuit Court Rules 2001 (Cth) for a proceeding concluded at final hearing[48]. The Written Submissions of the Frist Respondent seek costs in accordance with the Scale under the Federal Circuit Court Rules 2001 (Cth)[49]. I note that in submissions at hearing the Minister sought the sum of $6,000. The Applicant will therefore be ordered to pay the Minister’s costs in the sum of $6,000.
[48] Prior to amendment of sch.1, pt.3 of the Federal Circuit Court Rules 2001 (Cth) on 4 August 2018.
[49] Written Submissions of the First respondent, filed 23 April 2018, at [29].
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge C.E. Kirton QC
Associate:
Date: 27 February 2019
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