BSW17 v Minister for Immigration

[2017] FCCA 2448

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSW17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2448

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36,424A, 424AA
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases cited:
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68

First Applicant: BSW17

Second Applicant: BSX17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1218 of 2017

Judgment of: Judge Emmett

Hearing date: 9 October 2017

Date of Last Submission: 9 October 2017

Delivered at: Sydney

Delivered on: 9 October 2017

REPRESENTATION

Applicant appeared in person with the assistance of a Mandarin interpreter

Solicitor for the Respondents: Ms Chloe Hillary
DLA Piper Australia

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 1218 of 2017

BSW17

First Applicant

BSX17

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 21 April 2017, the applicants filed an application in this Court seeking judicial review of a decision of the Administrative Appeals Tribunal (“The Tribunal”) dated 29 March 2017. The Tribunal affirmed the decision of a delegate of the first respondent (“the Delegate”) refusing the applicants a Protection (Class XA) visa. The second named applicant is the wife of the first named applicant (“the Applicant”). The claims of the second named applicant are dependent on those of the Applicant.

2. On 3 August 2017, the Applicant attended a directions hearing before a registrar of this Court, and on that occasion was given leave to file and serve an amended application, any further evidence and submissions in support. The Applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.

3. At the request of the first respondent, the matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), on the basis that the Applicant’s application did not raise an arguable case for the relief sought.

4. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

5. Relevantly, r.44.13 of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

Background

1. The applicants are citizens of Malaysia and of Chinese ethnicity.

2. On 28 August 2003, the Applicant arrived in Australia on a visitor visa.

3. On 9 December 2004, the second named applicant arrived in Australia on a visitor visa.

4. After the expiry of the applicants’ respective visitor visas, the applicants remained in Australia as unlawful non-citizens until they applied for protection visas in 2009.

5. On 8 February 2010, the Delegate refused the visa application.

6. On 7 May 2010, the Refugee Review Tribunal affirmed the decision of a delegate of the first respondent.

7. On 11 August 2010, the applicants commenced proceedings in the Federal Circuit Court but then subsequently withdrew their application.

8. On 6 September 2010, the applicants applied for ministerial intervention under s.417 of the Act.

9. On 3 March 2011, the applicants were notified that their request for intervention was unsuccessful.

10. On 25 August 2011, the applicants were removed from Australia.

11. On 20 May 2012, the applicants returned to Australia as holders of visitor visas, using different names to the ones used on their first trip. The second named applicant unsuccessfully applied for two student visas with the Applicant included as a dependant.

12. On 21 July 2014, the Federal Circuit Court dismissed an application for judicial review in respect of the Migration Review Tribunal decision.

13. The applicants subsequently requested ministerial intervention under s.351 of the Act which was refused.

14. On 15 December 2014, the applicants made a second application for protection visas.

15. On 14 April 2015, the Delegate refused to grant the protection visas, having found that the applicants were not credible witnesses and were not owed protection.

16. On 19 May 2015, the applicants lodged an application for review of that decision with the Tribunal. The applicants were invited to appear at a hearing before the Tribunal and did so appear on 9 November 2016.

17. On 29 March 2017, the Tribunal affirmed the decision under review.

18. On 21 April 2017, the applicants filed an application with this Court seeking judicial review of the Tribunals decision.

Proceeding before this court

1. The Applicant confirmed that he continued to rely on the complaints made in his initiating application for judicial review, filed on 21 April 2017. Those complaints are identified as follows:

   “Final orders sought by applicant/s

   1. I don't think DIBP and AAT's decision are fair and reasonable as they failed to take a good consideration in my real situation in my home country and ignoring the risk of our background

   2. AAT did not consider my statement and comments given to the questions asked in the hearing and judge my fears simply by the member's prejudice.

   3. AAT failed to prudently consider my risk, discrimination and financial hardship if I return to origin.

   Grounds of application

   1. I am a Malaysia citizen and suffered from fears for returning for returning to my home country due to discrimination

   2. AAT ignored my fears and financial hardship

   3. AAT member have strong prejudice to our appeal, I do not think I have been fairly treated.”

   (Errors in original)

2. The Applicant was unrepresented before the Court this morning, although he had the assistance of a Mandarin interpreter.

3. Each of the six complaints made by the Applicant in the initiating application was interpreted for him, and he was invited to say whatever he wished in support of those grounds.

4. At the commencement of the hearing this morning, the Applicant handed to the Court a document that I understand to be a submission. It was not objected to by the solicitor for the first respondent, and accordingly was filed in Court.

5. The submission referred to various materials in relation to racial discrimination in Malaysia. The Applicant told the Court that it is material that was given to the Tribunal. However, the solicitor for the first respondent disagreed. In any event, the document identified as a submission by the Applicant does not otherwise address the issue as to whether the decision of the Tribunal was affected by jurisdictional error.

6. I explained to the Applicant that the role of this court is very different to that of the Tribunal. It is not for this court to reconsider his claims and make different factual findings or reach different conclusions. I further explained that this Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the Tribunal’s decision is affected by a mistake that goes to the jurisdiction of the Tribunal. Disagreement with the findings and conclusions of the Tribunal rarely by itself establishes such a mistake.

7. In support of his grounds, the Applicant stated that the Tribunal did not believe that he and his wife had faced discrimination in Malaysia, and that the Tribunal had failed to give his case prudent consideration, and that he wished the Tribunal had believed him.

8. A fair reading of the Tribunal’s decision record makes clear that the Tribunal identified with specificity the claims made by the Applicant in his first application for a protection visa lodged on 26 November 2009. The Tribunal then summarised with specificity the claims made by the Applicant in his second application for a Protection visa lodged on 15 December 2014.

9. The Tribunal found that the applicants are citizens of Malaysia, and that they had made their second application for protection visas in different names to the names made in their first protection visa applications.

10. The Tribunal summarised various exchanges that it had with the Applicant about his evidence, and put to the Applicant various concerns it had about his claims and noted his responses. The Tribunal also recorded exchanges it had with the second named applicant and noted concerns that it had put to the second named applicant and her responses.

11. The Tribunal also noted that it put to the Applicant, in accordance with s.424AA of the Act, differences in the information provided by the second named applicant to the Tribunal to that of the Applicant, and noted the Applicant’s explanation.

12. The Tribunal also raised with the Applicant his delay in applying for protection, noting that he arrived in Australia for the second time on 12 May 2012 but did not apply for protection until 15 December 2014. The Tribunal noted the Applicant’s explanations.

13. The Tribunal also noted country information on Malaysia contained in a Department of Foreign Affairs and Trade (“DFAT”) country information report that it discussed with the Applicant which indicated that ethnic Chinese make up 24.8 percent of Malaysia’s population; and, that there are no laws or constitutional provisions that directly discriminate against Chinese Malaysians; that Chinese Malaysians make up a high percentage of the professional educated class and they dominate business and commerce sectors.

14. The Tribunal also noted that the country information indicated that Chinese Malaysians freely participate in political life in Malaysia and are represented in the current cabinet and participate in opposition parties. The Tribunal noted the Applicant’s response that maybe the Tribunal saw that information on the internet, but that it is not true. The Tribunal did note that the DFAT information indicated that whilst Chinese Malaysians generally do not experience discrimination or violence on a day to day basis, they may face lower levels of discrimination when attempting to gain entry into the state tertiary system or the civil service. Again, the Tribunal noted that the Applicant responded that that was not true.

15. The Tribunal found that the Applicant was not a witness of truth, and that he had fabricated his material claims for the purposes of obtaining protection visas. The Tribunal found that the Applicant was prepared to say and do anything without any regard for the truth and to enhance his prospects of obtaining a protection visa. 

16. The Tribunal accepted that the applicants were removed from Australia to Malaysia on 25 August 2011 when their first application for protection visas was refused and their request for ministerial intervention was unsuccessful. The Tribunal found that they changed their names for the purpose of obtaining new passports and returning to Australia.

17. The Tribunal accepted that the Applicant may have suffered some discrimination in Malaysia because of his Chinese ethnicity, but was not satisfied that it would not prevent him from obtaining an education, employment or earning a living. Further, the Tribunal was not satisfied that any discrimination that the Applicant may suffer amounted to serious harm or significant harm.

18. The Tribunal rejected the Applicant’s claims to have been detained and questioned by police for allegedly spreading anti-government pamphlets, and did not accept that the Applicant was detained for six days, beaten and humiliated. The Tribunal also did not accept that the Applicant was released, with a monitoring device, and that his daily operations were monitored by the police.

19. The Tribunal comprehensively rejected the Applicant’s claims about the circumstances in which he left Malaysia and the threats that he said he received from police and authorities. The Tribunal rejected the Applicant’s claim to be associated with any union or political party in Malaysia, although it did accept that he once borrowed money from the Malaysian-Chinese Association.

20. The Tribunal accepted that the Applicant is a Buddhist, but found that he had not suffered any problems in Malaysia because of his religion.  The Tribunal found the Applicant was able to practice Buddhism without problems if he returns to Malaysia now or in the reasonably foreseeable future.

21. Ultimately, the Tribunal found that the Applicant did not satisfy the protection criteria, either in section 36(2)(a) or in section 36(2)(aa) of the Act and, accordingly, affirmed the decision under review.

22. The Tribunal’s findings would appear to be open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Those findings would not appear to have been tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative bases or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

23. A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

24. It is also well-established that the Tribunal is not required to accept, uncritically, any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

25. There is nothing in the Tribunal’s decision record to suggest that the Tribunal had not considered the Applicant’s evidence or that it had failed prudently to consider the Applicant’s risk of discrimination or financial hardship.

26. Insofar as the Applicant asserts that he had not been fairly treated or that the Tribunal was prejudiced against him, such allegations are serious, to the extent that they suggest bias and require evidence. The Applicant was given an opportunity to file any further evidence in support of his application, including any transcript of the Tribunal hearing. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

27. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).

28. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal, in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127] per Gleeson CJ and Gummow J) or that it approached its task other than with a mind open to persuasion.

29. Accordingly, to the extent that the Applicant’s complaints suggest that there was any procedural unfairness, none is apparent on the face of the Tribunal’s decision record or in the conduct of its review.

30. The Tribunal complied with its statutory obligations, pursuant to Division 4 of Part 7 of the Act. The applicants were invited to and attended a hearing, to give evidence and present arguments relating to the issues arising in their case. To the extent that the Tribunal purported to give information to the Applicant, in accordance with s.424AA of the Act, the information was not information that would otherwise enliven any obligation under section 424A. However, it is now well established that a tribunal does not err simply because out of an abundance of caution or concern for fairness, a tribunal gives information to an applicant for comment in circumstances where s.424A of the Act has no application (see SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30] per Dowsett, Bennett and Edmonds JJ).

31. Whilst I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the Applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error, and none is apparent on the face of the Tribunal’s decision record. The Tribunal referred to the relevant law in affirming the decision under review, and made findings that were open to it on the evidence and material before it, and to the reasons it gave. 

32. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed and, accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and, on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application, filed on 21 April 2017, should be dismissed, pursuant to r.44.12(1)(a) of the Rules, with costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 17 October 2017