BVS18 v Minister for Home Affairs

[2018] FCCA 2176

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVS18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2176

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Permanent Protection visa – whether the applicant had a real and meaningful hearing – whether the Tribunal complied with its statutory obligations – whether the Tribunal complied with the requirements of procedural fairness – invitation to this Court to engage in impermissible merits review – no arguable case of jurisdictional error – application dismissed under r 44.12 of the Federal Circuit Court Rules 2001.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r. 44.12

Migration Act 1958 (Cth), ss.5H, 5J, 36, 476

Applicant: BVS18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1018 of 2018

Judgment of: Judge Street

Hearing date: 9 August 2018

Date of Last Submission: 9 August 2018

Delivered at: Sydney

Delivered on: 9 August 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms A Davyskib
MinterEllison

ORDERS

1. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

DATE OF ORDER: 9 August 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1018 of 2018

BVS18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 16 March 2018 affirming a decision of the delegate not to grant the applicant a Permanent Protection visa.

2. The applicant was found to be a citizen of Malaysia and his claims were assessed against that country. The applicant claimed to fear harm by reason of owing money to a moneylender and that if he returned to Malaysia, the illegal moneylenders would do everything including kidnapping, torture and physical harassment or even kill the applicant and that the moneylenders might find and threaten his family. The applicant also claimed to fear harm by reason of having a Christian girlfriend.

3. On 6 March 2017, the delegate found the applicant failed to meet the criteria for the grant of a Permanent Protection visa. The applicant arrived in Australia on a UD-601 Electronic Travel Authority visa on 9 November 2016. It was not until 22 December 2016 that the applicant applied for a protection visa.

4. The applicant lodged an application for review to the Tribunal on 18 March 2017. By letter dated 27 November 2017, the applicant was invited to attend a hearing on 19 January 2018 which the applicant attended to give evidence and present arguments.

5. The Tribunal identified the background to the application for review and set out the relevant law. The Tribunal took into account the applicant was of Malay ethnicity and a Muslim. The Tribunal referred to the applicant’s claims and found that the applicant was an unsatisfactory witness and that the applicant’s testimony was inconsistent with the information in his protection visa application. The Tribunal found the applicant to be evasive, vague and rambling and that the applicant seemed to shift, exaggerate and invent his evidence as he testified. It was in these circumstances the Tribunal concluded the applicant was not a credible witness.

6. The Tribunal records that at the beginning of the hearing the Tribunal asked the applicant why he had applied for a protection visa, and the applicant responded that the ‘true story’ was that four years ago he met a Christian girl at work and they decided to have a business together but that it was not profitable so they had lost money. The Tribunal found the applicant’s response indicated the applicant came to Australia to earn money and not to avoid an illegal moneylender who he feared may kidnap, torture, harass or kill him or may harm his family. The Tribunal found that the applicant in response to further questioning appeared to embellish and change his ‘true story’.

7. In relation to whether the applicant would suffer harm, the applicant responded that he would be separated from his girlfriend if he returned to Malaysia. The Tribunal was of the view that if the applicant had come to Australia to be with his girlfriend and genuinely feared possible harm from her family if he returned to Malaysia, then he would have been able to convey that in a clear and forthright manner. The Tribunal found the applicant appeared to invent his evidence as he testified.

8. The Tribunal questioned the applicant about his girlfriend and their relationship and, in particular, whether there is a real chance her family would threaten him if he returned to Malaysia. The Tribunal referred to the applicant’s response that they were of different religions, that it was not easy and that he decided to stay away from his family. The Tribunal did not find it credible that the applicant believed that he would be threatened by his girlfriend’s family given that they had not threatened him in the past. The Tribunal was also of the view that if the applicant genuinely believed that his girlfriend’s family would separate them and threaten him that the applicant would have mentioned that when first asked why he applied for protection.

9. The Tribunal found the applicant further embellished his claims when asked whether there was any other reason he would face harm if returned to Malaysia. The Tribunal found the applicant was evasive when asked which family members he owed money to. The Tribunal found the applicant gave reasons at the hearing for applying for protection that were different to those in his protection visa application which the applicant indicated he had completed without assistance. The Tribunal found the applicant was evasive when the Tribunal sought to determine the extent to which his claims for protection were true. The Tribunal found the information provided by the applicant to be vague and contradictory.

10. It was in these circumstances that the Tribunal found that due to the applicant’s lack of credibility as well as the unsatisfactory testimony about his written and oral claims, and how his application was completed and what information he provided, the Tribunal did not accept any of the claims made in his protection visa application or at the hearing. The Tribunal did not accept the applicant borrowed money from an illegal moneylender, family or friends or anyone else in Malaysia to set up or support a business that he had. The Tribunal did not accept the applicant faces any harm if he returns to Malaysia because he borrowed money or related to any business.

11. The Tribunal did not accept the applicant left Malaysia for reasons related to having a Christian girlfriend, or that he will be separated from her, unable to marry or face harm if he returns to Malaysia because he has a Christian girlfriend. The Tribunal found there is not a real chance that the applicant would face persecution or significant harm if he returns to Malaysia.

12. The Tribunal found the applicant does not have a well-founded fear of persecution within the meaning in s 5J of the Act. The Tribunal found the applicant does not meet the definition of refugee in s 5H of the Act. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) of the Act.

13. The Tribunal found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, that there is a real risk that the applicant will suffer significant harm. The Tribunal found the applicant does not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 12 April 2018. On 7 May 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

2. At the commencement of the hearing the Court explained to the applicant that this was a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant maintained that what he had said was true and that he wants to continue his relationship. The Tribunal took into account the applicant’s claims to fear harm and made adverse credibility findings for reasons given by the Tribunal summarised above. Those reasons were open to the Tribunal and cannot be said to lack an evident and intelligible justification. The Tribunal also took into account the applicant’s claims concerning his Christian girlfriend and made adverse findings in that regard that were open to the Tribunal and again cannot be said to lack an evident and intelligible justification.

4. In that regard, the Tribunal also referred to the applicant’s failure to raise such a claim when first seeking protection. The applicant’s submissions from the bar table in substance identified a disagreement with the adverse findings of the Tribunal and did not identify any arguable jurisdictional error.

5. The applicant also asked the Court to permit his continued stay in Australia so he could pursue his relationship. This Court has no power to decide the matter on compassionate grounds. The Court has no discretion that it can exercise in relation to whether or not to grant relief.

6. Nothing said by the applicant from the bar table identified any jurisdictional error. On the face of the material before the Court the Tribunal complied with its statutory requirements in the conduct of the review. On the face of the material before the Court the Tribunal complied with the requirements of procedural fairness in the conduct of the review.

The grounds

1. The grounds in the application are as follows:

   Myself and my partner faithfully and sincerely believe and uphold that Australian people value the fairness and honesty. We are in relationship from year 2012 until now, and we want to start a new life chapter from the pursuit of happiness. We are seriously believed on the humanitarian grounds and for the sake of justice and fairness, which is totally demonstrated by the Australian government.

   – Humble and deeply requesting Federal Circuit Court of Australia Commonwealth Australia to review and reconsider my case for second time because of our situation, (different religion relationship) which is not accepted in my country. I also have a debt in my country that not allowed me to go back because if I’m back, the Shark Loan will threatened me.

   – We are loving couple who believed in love and mutual respect, also trust is essential and care in establishing our long lasting relationship. I am begging for pardon and deeply seeking apology if my application before is seen inexperienced. We do our best and willing to allocate our time and resources in order to reinstate my case, to AAT.

2. The grounds in substance identify the applicant’s claim in respect of his girlfriend and his debt situation but do not identify any arguable case of relevant legal error. The grounds in substance invite the Court to engage in impermissible merits review. On the face of the material before the Court, the Tribunal made dispositive findings in respect of the applicant’s claims that were open for the reasons summarised above. The application fails to disclose any arguable case of jurisdictional error.

3. The Court accepts the first respondent’s submission that there is an obvious typographical error in paragraph 25 of the Tribunal’s reasons where in the third sentence the Tribunal commences “I thus”. On a fair reading, it is clear that the Tribunal’s reasons should read “I thus do not accept”. The context of the paragraph before and after where the error appears and the other reasons referring to “I do not accept” makes clear that this was a typographical error. No arguable case of jurisdictional error arises in that regard.

Conclusion

1. As the application fails to identify any arguable case of jurisdictional error, I am satisfied that this is an appropriate matter in which to exercise the Court’s power under r 44.12 of the Rules.

2. Accordingly, the application is dismissed under r 44.12 of the Rules.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 29 November 2018