BXM16 v Minister for Immigration

[2018] FCCA 2531

FEDERAL CIRCUIT COURT OF AUSTRALIA

BXM16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2531

Catchwords:
MIGRATION – Application for judicial review – protection visa – whether Tribunal erred in failing to put material covered by the certificate issued under s.438 of the Migration Act 1958 (Cth) to the applicant – whether that resulted in a failure to afford procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 65, 424, 438

Migration Regulations 1994 (Cth), Sch.2

Cases cited:

BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198

Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241
AXC17 v Minister for Immigration & Anor [2018] FCCA 1843
Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194

Applicant: BXM16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1559 of 2016

Judgment of: Judge Riethmuller

Hearing date: 20 August 2018

Date of Last Submission: 20 August 2018

Delivered at: Melbourne

Delivered on: 10 September 2018

REPRESENTATION

Counsel for the Applicant: Ms Nicholson

Solicitors for the Applicant: Maddocks Lawyers

Counsel for the First Respondent: Mr McDermott

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1559 of 2016

BXM16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 24 June 2016 which affirmed the decision of a delegate to the Minister not to grant the applicant a protection visa under s.65 of the Migration Act 1958 (Cth) (“the Act”).

2. The applicant is a Malaysian citizen who arrived in Australia on

   
   

   1 August 2013 as the holder of a subclass 601 Electronic Travel Authority.  The applicant has remained in Australia since that date. The applicant applied for a protection visa on 24 October 2013. 

3. The relevant criteria for a protection visa is contained in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). The applicant must either be a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

4. The application was refused by the delegate on 22 July 2014.  The applicant appeared before the Tribunal on 16 December 2015 with the assistance of a Tamil interpreter.  On 24 June 2016 the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.

5. The Tribunal had regard to the documents provided by the applicant to the delegate (at [5] of the decision) and the documents the applicant provided to the Tribunal (at [6] of the decision).

The Applicant’s claims

1. The Tribunal summarised the applicant’s claims at [4] of the decision:

   4. In her application for a protection visa, the applicant has claimed essentially that she left Malaysia because she is not safe there and she had received threats. She claims to have been attacked by members of a Malay gangster organisation called “Gang 31”. She claims to have been harmed and that they also tried to kill her. This was because she fell in love with a Malaysian man [Mr F]. His father is very rich and has police and political influence. She and [Mr F] had been in love for about a year and in about August 2013 his father came to know about their relationship and tried to harm her. He arranged for members of “Gang 31” to harm her. Her boyfriend tried to warn her and advised her not to stay in Malaysia. The reason why [Mr F’s] father does not approve of the applicant's relationship with his son is because she is Hindu. She does not want to change religion. If she returns she will be killed. The applicant also claims that her mother, father and brother were attacked and her mother hid the applicant at a neighbour's house. The applicant claims that she was later attacked by a member of the gang wielding a samurai sword, but she escaped with help from her neighbours and her parents. Her boyfriend later told her that his father will not let her live because he is racist and he hates her because she is Hindu. The applicant also claims that the authorities did not protect her. When the gang attacked her neighbour the police attended but after her boyfriend's father spoke to them they just went away and did not take any action. She claims there is no justice for Hindus in Malaysia as they are treated like third class citizens and like animals not human. A Malaysian man with influence can rule anyone, even the police.

The Tribunal’s findings

1. The Tribunal considered the applicant’s claims at [83] of the decision as ‘fear [of] harm at the hands of her boyfriend’s father who is a Muslim because he disapproves of her as a Hindu and of their relationship’.

2. The Tribunal had ‘significant doubts of the credibility of the applicant’s protection claims’: see [84] of the Tribunal’s decision.

3. The applicant was unable to provide ‘credible evidence of the relationship being ongoing’: see [88]. Oddly, she denied providing evidence of the relationship to the delegate on 1 June 2014.

4. The Tribunal explained the evidence at [92] of the decision:

   92. The Tribunal had difficulty in accepting the applicant's explanation in relation to the documents provided to the Department under cover of a letter bearing her name. Taking into consideration the evidence provided by the applicant at the hearing, including her evidence that her relationship with her cousin and her husband had broken down and as well as the contents of the applications for the intervention orders, the Tribunal considers it is plausible that in light of the applicant's limited English and her apparent inability to use a computer as well as the timing of the provision of this information to the Department, her cousin and/or her husband were assisting her with her application for a protection visa and forwarded these documents to the Department on her behalf. However, the applicant's evidence is that the documents provided to the Department were not genuine. The Tribunal considers that the documents were provided by the applicant with the assistance of her cousin and/or her husband and does not accept the applicant's evidence that she did not know who or why these had been provided to the Department. The Tribunal bases this conclusion on the sequence of events, that is the interview with the Department, the applicant's request to her mother to provide additional documents to support her application, the provision of the additional documents to the Department after the interview which included a letter with the applicant's signature, the subsequent breakdown of the relationship with the applicant's cousin and her husband and the contents of the applications for the intervention orders provided to the Tribunal.

5. The applicant was provided a further opportunity at the Tribunal hearing to submit evidence of the relationship. The applicant produced some additional information, but in light of the Tribunal’s doubts about the applicant’s credibility, the Tribunal ‘could not give much weight to this’: see [93].

6. At [96] the Tribunal concluded:

   …after considering all the available evidence before it that there is no real chance that the applicant will suffer serious harm amounting to persecution for a Convention reason in the reasonably foreseeable future should she return to Malaysia.

7. The Tribunal considered whether there would be a significant risk if the applicant returned to Malaysia.  At [97], the Tribunal concluded:

   97…. In light of the findings above, in that the Tribunal does not accept the applicant's reason for leaving Malaysia was because of threats received because of her religion as a consequence of a claimed relationship with a Muslim man, the Tribunal does not accept there is a real risk that the applicant will suffer any form of significant harm at the hands of [Mr F’s] father or anyone else if she returns to Malaysia. As a result, the Tribunal is 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 she will suffer significant harm.

8. At [99], the Tribunal concluded the applicant was not a person to whom Australia has protection obligations under s.36(2)(aa) of the Act.

9. The Tribunal also considered whether the applicant was able to relocate within Malaysia. The applicant’s evidence was that her only option ‘was to flee Malaysia’: see [95]. The Tribunal concluded that ‘there is no real chance that the applicant will suffer serious harm amounting to persecution’ if she were to return to Malaysia (at [96]).

10. The Tribunal did ‘not accept the applicant’s reasons for leaving Malaysia’ and did ‘not accept there is a real risk that the applicant will suffer any form of significant harm’ if she were to return to Malaysia (at [97]).

Adjournment application

1. At the outset of this application, the applicant sought an adjournment pending the outcome of a special leave application to appeal the decision in BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198. The application in this case has been pending before this Court for some two years. An adjournment would necessarily delay the matter for six to nine months before another listing date would be available in this Court.

2. The law at present is clear as a result of the decision of the Full Court in BEG15.  If the law changes in a material way as a result of the High Court’s decision, the matter may be taken up by the applicant in a subsequent appeal of this decision.

3. However, on the facts and circumstances of this particular case, it seems unlikely that the applicant will be able to establish jurisdictional error, even if jurisdictional error is established simply by the failure to disclose the certificate, as the certificate in this case purported to restrict only material the substance of which had already been provided by the applicant to the Tribunal.

4. The applicant has, in these circumstances, lost no opportunity to access the said material by challenging the certificate; nor, if the certificate is invalid, by looking at the material behind the certificate, as it is merely a repetition of the material of which she had received full particulars, with such repetition being undertaken by the same person.

5. In these circumstances, I am not persuaded that it is appropriate to delay the application further.

Grounds of application

1. The applicant filed an amended Application on 1 August 2018.  That application contains one ground:

   1. The decision of the Tribunal was affected by jurisdictional error in that the Tribunal:

   a. had regard to a purported section 438 certificate that was invalid;

   b. failed to disclose the existence of the purported section 438 certificate to the Applicant.

   Particulars

   Invalidity of certificate

   i. The purported section 438 certificate was issued pursuant to section 438(1)(b),that is, on the ground that the information it related to was given to the Department in confidence. The information was not given to the Department in confidence and therefore the certificate was invalid.

   Failure to disclose existence of certificate

   i. The Tribunal denied the Applicant procedural fairness by failing to:

   a. Give the Applicant an opportunity to make submissions on the validity of the certificate;

   b. disclose to the Applicant the extent to which it would take the information subject of the certificate into account;

   c. give the Applicant an opportunity to seek a favourable exercise of discretion under section 438(3)(b) of the Migration Act.

2. The point that the applicant makes is that the Tribunal relied upon a certificate issued under s.438 of the Act which was not a valid certificate. Therefore the Tribunal erred in failing to disclose the particulars of the information purportedly covered by that certificate to the applicant.

3. Counsel for the first respondent accepted that the issue to be determined in this matter was whether or not the failure of the Tribunal to disclose to the applicant, the contents of the material covered by the certificate resulted in jurisdictional error.

4. Prima facie, it appears to be jurisdictional error, subject to the exception discussed in BEG15.

5. It is convenient to turn to the facts and circumstances related to the specific information in this case in order to understand the ground that was argued.

6. As appears at Court Book pp.94 to 101, three emails were sent to the Department over the period 30 June to 1 July 2014, alleging that the applicant had made false claims for a protection visa, and in particular that she had edited a picture that she relied upon in support of her application, depicting a man and a woman.

7. The person who made the complaints to the Department utilised a particular email address (“the cleaning services email address”) and described themselves as “Shri”, although the email address username appears to have been “Ravi”.  This is the same in the first two emails, and in the third email, the email address name remains “Ravi”, but no particular name is set out in the body of the email.

8. At Court Book p.105, there is a note of a telephone call made on
   17 July 2014, repeating the relevant information, which is sufficiently factually similar to indicate it was the same person, who then described themselves as “Shirlene”, and gave a mobile telephone number, 04xx xxx x51.

9. Later (as appears at Court Book p.114), in the delegate’s decision, full particulars of this information was provided as follows:

   On the 30 June 2014 (f: 87 & 88), the 1 July 2014 (f: 89 & 90-94), and the 17 July 2014 (f: 98), the department received dob-in information, both verbally and in writing stating:

   ·Photographs as provided by the applicant to the department had been altered and were not sent in the original form which they were taken;

   ·Photographs of applicant and her male friend were taken at the informant’s house;

   ·The male appearing in the photograph is the informant’s husband’s friend and car mechanic;

   ·The applicant’s two brother’s and mother have travelled to Australia in the past and lodged applications for Protection visas;

   ·Despite currently working as a cleaner, the applicant is in receipt of Red Cross payments.

   While dob-in information pertaining to the applicant has been considered, I have given this no weight. On the applicant’s written application and testimony at interview, I accept the applicant was in a relationship with a young man named [Mr F] whilst she was living in Malaysia.

10. The applicant was certainly aware that these issues had arisen (at least from the delegate’s decision), and addressed them in part by way of providing copies of applications and summonses for intervention orders that were pending in the Magistrates’ Court in Victoria, copies of which appear at Court Book pp.132 – 136.

11. It seems that the applicant sought intervention orders against two people; Shrim and Ravis.  Similarly, Ravis and Shrim had sought intervention orders against the applicant.

12. In seeking the intervention orders against Ravis and Shrim, the applicant lists Shrim’s mobile telephone number.  It is the same number that appears in the earlier emails that were sent to the Department, apparently by Shrim, 04xx xxx x51.

13. The application made by Shrim in the Magistrates’ Court does not list her own mobile telephone number (at least in the copy in the Court Book), but sets out the reason for the application as follows:

    I HAVE KNOWN THWE RESPONDENT FOR ABOUT 11 MONTHS. MY FAMILY AND I PREVIOUSLY SHARED ACCOMMODATION WITH HER. WHILST LIVING TOGETHER THE RESPONDENT ALWAYS USED THE PC BELONGING TO ME AND MY HUSBAND. AFTER SHE MOVED OUT I BECAME AWARE THAT SHE HAD ACCESSED THE COMPUTER AND EDITED A PICTURE OF OUR MOTOR MECHANIC AND HERSELF AND USED THIS FOR IMMIGRATION/VISA PURPOSES. I HAVE SINCE CONTACTED THE DEPARTMENT OF IMMIGRATION ABOUT THIS. ON JULY 28TH 2014 THE RESPONDENT CONSTANTLY RANG MY MOBILE PHONE AND LANDLINE MAKING THREATS AND SCREAMING AT ME ABOUT LOSING HER VISA.

14. The applicant faces the difficulty that the delegate’s decision clearly particularises the relevant information that she complains about.  This decision was provided by her to the Tribunal.  She squarely addressed this information, in part by providing copies of the intervention order applications. 

15. The latter email, which arrived after the delegate’s decision, in November 2014, which appears annexed to the affidavit of the solicitor for the Minister as ‘MJG-2’, comes from a person who describes themselves as “Tammy”, and utilises a different email address to those of the previous emails, however has the same telephone number as “Shri”, 04xx xxx x51.  The terms of this complaint are as follows:

    Specific information=she is applied for protection visa and preparing all the fraud document..before i did gave this information to the immigration department her case officer (ms Hayley tuck). [The applicant] had been provided a photo tat she edited as taken at kuala lumpur but actually the photo had been taken in australia .she lie that the person in the picture is her boyfren bt actually he is the car mechanic who is working in australia.and also she is doin some other document as a support document but created by herself.if the department want to have the photograph i can provide the picture.the original picture and the edited picture is with me.and also [the applicant] is receiving asas payment from red cross but she is working as cleaner at nationwide health&agedcareservices which is located at [street address].

    Information source=actually im the who capture the picture and she use my pc to edit the pic.and after I get known about this i did report about this to the case officer who did interview [the applicant] at melbourne office.

16. The complaint is in substantially the same terms as the earlier complaints that were made prior to the delegate’s decision.  Having regard to the identical telephone number and the terms of the complaint, it appears clear that the November complaint was made by the same person and in the same terms as the earlier complaint.  It does not appear to contain any material differences.

17. In these circumstances, the applicant was well aware of the complaint that had been made, having received particulars in the delegate’s decision, and addressed that in her submissions to the Tribunal.

18. The Tribunal member notes the receipt of the intervention order applications (at [90] of the decision), indicating that the Tribunal had discussed these matters with the applicant. In this case, there was no need for the Tribunal to provide particulars of the information pursuant to s.424A of the Act as a result of the exemption in section 424A(3)(b): see Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 at 22.

19. This is not a case where the Tribunal had evidence that had not been particularised to the applicant in the sense discussed in AXC17 v Minister for Immigration & Anor [2018] FCCA 1843. The evidence was particularised firstly in the delegate’s decision, and the only thing that arrived thereafter was simply a repetition, by the same person, of that same information, which in substance was again referred to in the particulars in the intervention order applications.

20. The significant issue became whether or not the applicant had in fact sent the relevant photographs to the Tribunal, which she denied, as is recounted in [91] of the Tribunal’s decision.  The Tribunal did not accept that the applicant’s evidence was correct in this regard, a proposition borne out by the evidence before the Tribunal, which demonstrated that the applicant had corresponded by email with the Tribunal (see Court Book p.48) using a particular Gmail address.

1. At Court Book p.51, the image files were forwarded from that Gmail address to the Department.  That email included (as appears at Court Book p.52) a letter apparently in the applicant’s handwriting, and signed by her, supporting her protection visa application, and dated 1 June 2014.  Various other letters were contained therein.  The same email address then appears in the applicant’s application for review of the delegate’s decision (see Court Book p.125), providing a strong evidentiary foundation for the Tribunal to conclude that the applicant had in fact sent the documents on her own behalf.

2. I am therefore persuaded that the validity or otherwise of the certificate issued in this case makes no difference.  The Tribunal was not required to provide more particulars to the applicant than she had already received through the delegate’s decision in order to ensure that she received a procedurally fair hearing.  There is nothing to indicate that she assumed that this was not an issue before the Tribunal; indeed, the provision of the intervention order applications shows that she was well aware this was a live issue for the Tribunal to determine.

3. In this case I am satisfied that there was, in practical terms, ‘no denial of procedural fairness; or that, if there was, relief should nonetheless be withheld as a matter of discretion’: see Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194, at [88].

4. In this matter, the parties were agreed that costs should follow the event, fixed at $7,328, if the first respondent succeeded.

5. I find that the applicant has not established a ground for judicial review nor an appropriate basis to adjourn the application.

6. I therefore make orders accordingly.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  10 September 2018