BZF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 312

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 312

File number(s):

SYG 1402 of 2017

Judgment of:

JUDGE DRIVER

Date of judgment:

23 February 2021

Catchwords:

MIGRATION – review of Administrative Appeals Tribunal decision – refusal of a protection visa - applicant claiming a fear of harm in Malaysia – applicant’s fears found not to be well founded – unparticularised grounds of review – refusal of an adjournment – application dismissed

Cases cited:

Attorney-General (NSW) v Quin (1990) 170 CLR 1

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Number of paragraphs:

28

Date of hearing:

23 February 2021

Place:

Sydney

Applicant appeared in person

Solicitor for the Respondents:

Ms J Strugnell of Minter Ellison

ORDERS

SYG 1402 of 2017

BETWEEN:

BZF17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	23 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.The application is dismissed.

3.The applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $5,600.

REASONS FOR JUDGMENT

(Revised from transcript)

JUDGE DRIVER

INTRODUCTION AND BACKGROUND

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 13 April 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. Background facts relating to this matter are set out in the Minister’s outline of submissions, which I adopt.

3. The applicant is a citizen of Malaysia, who last arrived in Australia on 6 January 2016 on a visitor (Class UD) (subclass 601) visa.  The applicant applied for a protection visa on 16 March 2016[1].

   [1] Court book (CB) 1–41

4. On 13 May 2016, the delegate refused to grant the applicant a protection visa[2].

   [2] CB 47–52

5. The applicant sought review of the delegate's decision before the Tribunal by application dated 30 May 2016[3].

   [3] CB 53–59

6. The applicant appeared at a hearing before the Tribunal on 10 March 2017[4].

   [4] CB 80–82

7. The Tribunal made its decision on 13 April 2017, affirming the decision not to grant the applicant a protection visa[5].

   [5] CB 90–100

   Applicant's claims

8. The applicant claimed to fear harm in Malaysia because the economy was not stable, the pay was low, he was liable to be declared bankrupt and he could not get a job or support his family. Before the Tribunal, the applicant also claimed to fear harm on the basis of his political opinion, as a supporter of opposition groups who attended Bersih rallies in 2013. He claimed the government was corrupt and would not help Malaysians.

   Tribunal decision

9. The Tribunal rejected the applicant's claims on the basis that they were not well-founded.

   Economic hardship

10. The Tribunal found that the applicant's evidence was vague, lacking in detail and inconsistent in parts[6]. Further, his evidence did not indicate he had suffered harm in the past, but indicated he was well-educated and had been gainfully employed in Malaysia and Australia, was able to pay for his travel to Australia and was merely unable to find a job with the salary he wished to receive[7]. For these reasons, and on the basis of country information, the Tribunal did not accept that the applicant would suffer serious harm in Malaysia for reasons relating to his ability of capacity to find, obtain or maintain employment or for any related economic or financial reason[8].

    [6] CB 93: [17]

    [7] CB 93–94: [17]–[19]

    [8] CB 94: [20]

    Political opinion and activity

11. The Tribunal found that the applicant's evidence was again vague, lacking in detail and inconsistent[9] as well as unpersuasive and unconvincing[10].  As a result, the Tribunal was not prepared to accept that the applicant was ever of interest to the authorities for his participation in Bersih rallies or any related reason[11].  It did not accept he was involved with politics or that his non-involvement was a result of him modifying his conduct out of fear of mistreatment[12]. Noting that the applicant did not claim he would be involved in politics in the future, and in any event that country information did not indicate those who participated would be mistreated, the Tribunal was not satisfied that there was a real chance the applicant would face serious harm for reason of his political views and opinions[13].

    [9] CB 94: [21]

    [10] CB 95: [22]

    [11] CB 95: [23]–[24]

    [12] CB 95: [24]

    [13] CB 96: [26]

12. For these reasons, the Tribunal was not satisfied the applicant met the refugee criterion[14]. In the context of complementary protection, for the same reasons (and having considered the applicant's claims individually and cumulatively), the Tribunal was not satisfied that the applicant met the complementary protection criterion[15].

    [14] CB 96: [27], [32]

    [15] CB 96: [28]–[32]

13. These proceedings began with a show cause application filed on 8 May 2017.  The applicant continues to rely upon that application.  There are two unparticularised grounds in the application:

    1.The decision was effected by an error of law

    2.Denied the applicant procedural fairness.

14. In the absence of particulars, the grounds are meaningless.

15. The application was accompanied by a short affidavit filed with it in which the applicant also asserts, without particulars, an error of law.  I received that affidavit as a submission. 

16. Given the state of the application, it should, in my view, have been listed for a show cause hearing in 2017.  Instead, however, it was listed before a different judge of this Court in March 2019 for a callover.  On 11 March 2019, despite nothing having been done to clarify the application, it was listed for a final hearing before me on 8 April 2020.  The applicant attended that callover in person.  The hearing was further adjourned until today due to the COVID-19 pandemic. 

17. The applicant attended today’s hearing in person by telephone.  At the outset, he asked for an adjournment based on the assertion that he only received the court book last week.  I questioned the applicant and the Minister’s solicitor closely about the relevant facts and circumstances.  The court book was filed on 11 July 2017.  It was sent to the applicant’s address for service in his application and was not returned.  The applicant moved house the following month, but as best as he can recall, he was still living at the initial address for service when the court book was sent to him. 

18. It appears that last Monday, when the applicant received the Minister’s outline of submission by email, he was, at last, stimulated to take some action.  He sought legal advice and attended upon a legal advisor.  The legal advisor asked for the court book referred to in the Minister’s submissions.  The applicant was unable to produce it.  In the circumstances, the legal advisor declined to represent the applicant today.  Instead, the legal advisor suggested to the applicant that he attend court today and ask for an adjournment. 

19. In pursuit of that objective, the applicant notified the Minister’s solicitors on Tuesday last week that he did not have the court book and asked for another copy.  Further copies were sent to the applicant later in the week. 

20. The only basis upon which the request for an adjournment is put is the receipt of the court book last week.  The applicant has been unable to explain satisfactorily why he apparently did not receive the court book when it was sent to him nearly four years ago.  Neither was he able to satisfactorily explain why he has done virtually nothing to this point in the pursuit of his judicial review application. 

21. The Minister opposed the adjournment sought.  In the circumstances, I refused it.  I then called upon the applicant to make oral submission about the Tribunal decision.  He was either unwilling or unable to say anything on that subject.  Instead, he complained repeatedly about the refusal of an adjournment. 

    CONSIDERATION

22. The application before me is wholly without merit.  To the extent that it is possible to say anything useful about the grounds in the application, the Minister’s submissions make that attempt.  I agree with those submissions and adopt them.

    Ground 1

23. The first ground contends that the Tribunal's decision was affected by an error of law.  This ground is a mere assertion that does not identify any arguable jurisdictional error that would warrant the granting of relief.  In substance, this ground seeks impermissible merits review[16].

    [16] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–36; [1990] HCA 21 at [16]–[17] per Mason CJ; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ.

    Ground 2

24. The second ground contends that the Tribunal failed to afford the applicant procedural fairness.  This again is a general assertion of error, which fails to identify or articulate any jurisdictional error on the part of the Tribunal.

25. In any event, the Tribunal complied with its procedural fairness obligations set out in Part 5 of the Migration Act 1958 (Cth) (Migration Act).

26. By letter dated 20 February 2017, the applicant was invited to attend a hearing before the Tribunal[17]. The applicant attended that hearing with the assistance of a Malay interpreter on 10 March 2017[18]. That the applicant's economic claim was not well-founded was the central issue addressed by the delegate[19], and the applicant provided a copy of the delegate's decision to the Tribunal with his application[20]. Further, the Tribunal's decision indicates this issue was discussed with the applicant at the hearing[21]. In relation to his political claims, the Tribunal's decision indicates this issue was also discussed with the applicant at the hearing[22]. In those circumstances, the applicant was plainly afforded sufficient opportunity to give evidence and present arguments about his claims, being the determinative issues on review[23].

    [17] CB 71

    [18] CB 80

    [19] CB 50

    [20] CB 91: [6]

    [21] CB 92: [9], CB 93–94,[16]–[20]

    [22] CB 92: [10]; CB 94–97: [21]–[26]

    [23] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

    CONCLUSION

27. I conclude that the applicant is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.  The decision is, therefore, a privative clause decision and the application must be dismissed.  I will so order.

28. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,600.  The applicant inquired about the possibility of the costs being waived, but did not oppose the making of an order.  I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in the sum of $5,600.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       4 March 2021