BVU17 v Minister for Immigration

[2017] FCCA 2975

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVU17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2975

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – the Tribunal’s reasons applied a logical and cogent basis for the adverse findings – no basis to find that the Tribunal failed to comply with the provisions of the Act – existence of section 438 certificate – the material the subject of the certificates did not give rise to any practical injustice in the conduct of the review – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 438, 476

Cases cited:

BEG15 v Minister for Immigration and Border Protection (2017) FCAFC 198

Applicant: BVU17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1292 of 2017

Judgment of: Judge Street

Hearing date: 30 November 2017

Date of Last Submission: 30 November 2017

Delivered at: Sydney

Delivered on: 30 November 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1292 of 2017

BVU17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 31 March 2017 affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of Malaysia and her claims were assessed against that country. On 24 February 2016 the applicant applied for an Electronic Tourist (subclass UD 601) visa in effect until 26 May 2016. On 26 February 2016 the applicant arrived in Australia.  It was not until 19 May 2016 that the applicant lodged an application for protection. 

3. The applicant claimed to fear harm from the Royal Security Forces of the Sultanate of Sulu and North Borneo. A delegate on 22 June 2016 found the applicant failed to meet the criteria for the grant of a protection visa.

The Tribunal’s decision

1. The applicant applied for review on 28 June 2016. A section 438 certificate was issued on 1 July 2016 and was provided to the Tribunal. The documents the subject of that certificate have been tendered into evidence. The documents are an identification test, enterprise correspondence and a disclosure decision checklist. On the face of the documents, they were not relevant to or prejudicial to the applicant’s claims and evidence in the review. The documents were not credible, relevant and significant.

2. The Tribunal sent the applicant an invitation by letter dated 2 March 2017 to appear at a hearing on 31 March 2017. The applicant appeared on that date to give evidence and present arguments. The Tribunal in its reasons identified the background to the application for review. The Tribunal summarised the relevant law in respect of the application for review.  The Tribunal summarised the applicant’s claims and evidence. The Tribunal made reference to the applicant having worked in a hair salon in Sabah and that she works in Australia and sends money back to her father. The Tribunal made reference to the applicant failing to tell the Department that she was living in Sandakan at the time of the Sulu skirmish and that she moved away to reside again in Kota Kinabulu from 2013 until 2016 when she came to Australia.

3. The Tribunal identified certain country information. The Tribunal found the applicant lived safely and securely with her family from 2013 to 2016. The Tribunal found the applicant physically resided from birth until her departure in 2016 in the vicinity of Kota Kinabulu. The Tribunal did not accept from the inconsistent evidence of the applicant that the applicant resided in Sandakan as claimed. Even allowing for the applicant to have stayed in or near Sandakan, the Tribunal did not accept that the applicant was in anyway implicated in the episode, or harmed by it, or that she has any ongoing relevant implications for her, let alone for her protection from persecution or significant harm in the event she returned to and resided in Malaysia.

4. The Tribunal found that the applicant fabricated the account she gave of being told of an incursion, or planned incursion by the Royal Army of Sulu in Kota Kinabulu in 2013. The Tribunal did not accept on the evidence that the applicant had provided that she had any significant or genuine fear of persecution or significant harm in her home state of Sabah in any time. The Tribunal took into account the evidence of the applicant that the applicant came to Australia with the express intention of working to support her family at home. 

5. Having considered the evidence in the matter and the applicant’s claims, the Tribunal was not satisfied that the applicant is a reliable witness and was not satisfied that she faces a real chance of persecution in Malaysia in the reasonably foreseeable future for any of the reasons in s 5J(1)(a) of the Act. The Tribunal found the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

6. The Tribunal was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. On 10 August 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed. 

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review.  The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the applicant would be dismissed. 

3. The Court explained it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that she understood the nature of the hearing as explained by the Court.

4. From the bar table, the applicant indicated that she wanted permission to stay in Australia for several more years. The Court explained to the applicant that it could not decide the matter on compassionate grounds and could not make fresh findings on the merits. The Court again invited the applicant to put submissions as to why the Tribunal’s decision was unlawful or unfair.  The applicant said nothing to identify any basis upon which it could be said the Tribunal’s decision was unlawful or unfair.

5. The grounds in the application are as follows:

   1. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

   The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon her returns to Malaysia

   2. The second respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

   Particular:

   The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

   3. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

The Court’s reasoning

Ground 1

1. In relation to ground 1, on the face of the Tribunal’s reasons, the Tribunal correctly identified the relevant law. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal and the Tribunal complied with its statutory obligations 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 adverse findings were open to the Tribunal for the reasons given by the Tribunal which cannot be said to be illogical or unreasonable.

2. Ground 1 in substance, reflects a disagreement with the adverse finding by the Tribunal. The reference to risk and fear being construed erroneously is in substance an invitation to engage in impermissible merits review. There was is no misconstruction of the relevant legislation by the Tribunal. On the face on the Tribunal’s reasons, this Court does not have power to revisit the merits.  No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, no information has been identified enlivening an obligation under s 424A of the Act. Accordingly, no jurisdictional error is made out as mentioned in ground 2.

Ground 3

1. In relation to ground 3, the Tribunal’s reasons applied a logical and cogent basis for the adverse findings. The adverse findings cannot be said to lack an evident and intelligible justification. There is no basis to find that the Tribunal failed to comply with the provisions of the Act.   No jurisdictional error as alleged in ground 3 is made out.

Section 438 certificate

1. For the reasons earlier given, it is apparent that there was a section 438 certificate and documents the subject of that certificate that were not disclosed to the applicant in the course of the review. The Court has the benefit of that material before the Court and the Court has already found that those documents are not credible, relevant or significant to the applicant’s claims in the review. The documents were not adverse to the applicant and did not undermine the applicant’s claims.

2. On the face of the material before the Court, the Tribunal did not act upon the material the subject of the certificate. On the face of the material before the Court, the material the subject of the certificate did not give rise to any practical injustice in the conduct of the review.

3. The first respondent has drawn the Court’s attention to the recent decision in BEG15 v Minister for Immigration and Border Protection (2017) FCAFC 198, relevantly at [16]-[17] and [32] and [33]. The Court is satisfied that the non-disclosure of the certificate and the documents the subject of the certificate are not relevant to the applicant’s claims and did not give rise to any jurisdictional error in the conduct of the review.

4. Further, the material the subject of the certificates could not possibly have given rise to any different outcome in the conduct of the review and accordingly, is a case where relief would be withheld is discretionary grounds. No jurisdictional error is made out by reason of the failure to disclose the certificate and the documents the subject of the certificate. 

5. Accordingly, the application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  13 February 2018