CCF17 v Minister for Immigration

[2018] FCCA 2967

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCF17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2967

Catchwords:
MIGRATION – Protection visa – applicant’s grounds of review unparticularised – consideration of applicant’s claims and country information – applicant’s claims not credible – applicant could relocate within her home country – applicant’s allegation of actual or apprehended bias not made out – application dismissed.

PRACTICE AND PROCEDURE – Application for reinstatement of proceeding – no reasonable grounds in substantive application – no merit to grant rehearing – application refused.

Legislation:

Migration Act 1958, ss.5J, 5H, 36(2)(a), 425, 425A, 438

Cases cited:

AQN15 v Minister for Immigration and Border Protection [2016] FCA 571

AVO15 v Minister for Immigration and Border Protection [2017] FCA 566

BHK15 v Minister for Immigration and Border Protection [2016] FCA 569

CNN15 v Minister for Immigration and Border Protection [2017] FCA 579

Minister for Immigration and Border Protection v BJN16 (2017) 253 FCR 21

Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
MZAFZ v Minister for Immigration and Border Protection and Anor (2016) 243 FCR 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZNXA v Minister for Immigration and Citizenship [2010] FCA 775

WZATH v Minister for Immigration and Border Protection [2014] FCA 969

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Applicant: CCF17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 993 of 2017

Judgment of: His Honour Judge Wilson

Hearing date: 5 October 2018

Date of Last Submission: 5 October 2018

Delivered at: Melbourne

Delivered on: 5 October 2018

REPRESENTATION

Applicant: In person

Solicitors for the Applicant: None

Counsel for the First Respondent:

Solicitors for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Sparke Helmore

ORDERS

1. The application in the case filed on 25 September 2018 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $1 000. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 993 of 2017

CCF17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. On 12 September 2018, on the return of the hearing of the applicant’s application for judicial review, this case was listed before me and Mr Cunynghame appeared for the first respondent at the time and place listed for hearing. 

2. The applicant was called in court and out of court several times but did not answer the call.  The call was made in earshot of every other litigant in this court building.  The applicant did not appear, as a result of which I dismissed the application by reason of her non-appearance. 

3. On 12 September 2018 the applicant has filed an application for reinstatement of her application for judicial review.  She needed to demonstrate three things on the hearing of the application for rehearing.  First, she needed to demonstrate that she had a reasonable excuse for her non-appearance.  The minister did not contest the reason that she gave, namely, that she went to a different court.  While I hear the minister’s position on the point, I do not regard her explanation as providing a reasonable excuse.  But I recognise that the minister does not challenge the point.  Next, she needed to demonstrate that there was no prejudice to the minister if an order for rehearing were granted.  The minister did not press that he would suffer any prejudice if the case were reheard.  The third issue on which she needed to provide satisfaction was that she had arguable grounds for her application for judicial review.  On this point the minister did offer resistance, submitting that no arguable grounds had been demonstrated on the substantive issues raised in the judicial review application.  The minister said I should dismiss this application.

Synopsis

1. For the reasons that follow, I agree with the minister’s position and I refuse the application for a rehearing.  I make that observation principally for the reasons that in my view the applicant does not have reasonable grounds for her contentions in the judicial review application. 

2. Let me turn to the detail. 

Short factual narration

1. The applicant filed an application in this court on 16 May 2017.  In this proceeding she sought judicial review of a decision of the Administrative Appeals Tribunal made on 18 April 2017.  The tribunal affirmed a decision of the minister’s delegate not to grant the applicant the protection visa that she sought.  This proceeding was before a registrar of this court on 6 December 2017 at which time the registrar ordered the filing of written submissions by the applicant by 15 August 2015.  The applicant failed to comply. 

2. Some background information must now be stated. 

3. The applicant is a citizen of Malaysia.  On 3 November 2015 she arrived in Australia as the holder of a visitor’s visa.  On 27 January 2016 she applied for the visa in issue in this case.  With her application she provided a statement of the grounds to support her claims to fear if she were to return to Malaysia.  She relied on five main grounds.  First, she said she had been the victim of domestic violence from her husband who she married in the year 2000, after which he became addicted to drugs, resulting in his personality changes.  Second, she said she told family and friends about her husband’s drug addiction resulting in an increase in his anger and a subsequent assault upon her.  Next, she said in 2014 she sent her children to live with her parents and sought a divorce from her husband leading to her being detained against her will at the behest of her husband.  Also, she said her husband’s father was a senior ranking police officer and by reason of his status, she received no help from police upon her complaint to the police.  She said as the fifth ground that her husband discovered her whereabouts, beat her and threatened to kill her. 

4. On 29 February 2016 the minister’s delegate refused to grant the applicant the visa she sought.  Mainly, the delegate said that Australia did not owe her protection obligations under the Migration Act (“Act”).  On 22 March 2016 the applicant applied to the tribunal for a merits review of the delegate’s decision.  On 24 March 2017 the tribunal invited the applicant to attend a hearing scheduled for 12 April 2017, which she did with the assistance of a Mandarin interpreter.  At the tribunal hearing she presented in a highly agitated state, resulting in the tribunal offering her an adjournment that she refused.  After discussion, the tribunal in 67 paragraphs of reasoning rejected her claims and affirmed the delegate’s decision. 

5. It is necessary to briefly focus on the tribunal’s reasoning. 

6. Between paragraphs 38 and 40 of its reasons the tribunal took into account country information prevalent in Malaysia, noting that domestic violence was a serious problem.  The tribunal found that while the situation was improving, confusion still existed between federal and state laws and that led to difficulties encountered for women seeking adequate state protection.  At a factual level and based on country information, in paragraphs 34 and 41 of its reasons the tribunal did not accept that the applicant’s husband’s father, that is to say her father-in-law, was a deputy vice policeman in the Royal Malaysian Police because it said there was no such rank in the police force in Malaysia.  The tribunal said that it was not credible that the applicant would not know her father-in-law’s actual rank, having regard to the duration of time she had been a member of the her husband’s family. 

7. In paragraph 42 of its reasons the tribunal did not accept the applicant’s version of events of her interaction with the police and her reasons for that interaction. 

8. In paragraph 43 of its reasons the tribunal accepted that the applicant had been a victim of domestic violence and that her husband had been a drug user and was frequently violent towards her.  The tribunal said that there was a real chance that the applicant would suffer serious harm by reason of her membership of a particular social group, as a Malaysian woman who was a victim of domestic violence in her home area of Selangor. 

9. The tribunal focused on the issue of relocation between paragraphs 51 and 65.  The tribunal said in paragraph 53 that it did not accept as credible that she was unable to relocate to her parents’ home to be safe from her husband.  The tribunal relied on country information in paragraphs 54 and 55 of its reasons in reasoning that Malaysians can and do freely locate internally, resulting in its conclusion that the applicant could safely and reasonably relocate to Kuala Lumpur so as to live with her parents and children.  The tribunal accepted in paragraph 56 of its reasons that the applicant could relocate, if she wished, to any other city in Malaysia to escape the fear that she said existed in her home area.  The tribunal pointed to the applicant’s resourcefulness in coming to Australia and living and working in Sydney and Melbourne.  The tribunal reasoned that there was no reason why she could not do the same in some other part of Malaysia. 

10. In paragraphs 57 and 64 of its reasons the tribunal found that there was not a real chance that the applicant would be persecuted for any reason in Malaysia and that her fear of persecution was not well founded within the meaning of s 5J of the Act. The tribunal therefore concluded that, based on the definitions in ss 5J and 5H of the Act, the applicant was not a refugee within the meaning of s 36(2)(a) of the Act.

11. The tribunal found in paragraph 63 of its reasons that the applicant could safely and reasonably relocate to Kuala Lumpur or any other city in Malaysia where she would not be at real risk of significant harm. 

12. Ultimately, the tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa. 

In this court

1. On 16 May 2017 the applicant applied for judicial review in this court relying on three grounds, none of which contained particulars. 

2. The grounds were as follows, expressed verbatim –

   The Second Respondent denied the applicant natural justice or procedural fairness in making the decision. 

   The Second Respondent was or appeared to be biased. 

   The Second Responded is affected by jurisdictional error in that it did not comply with its obligation to put adverse information relied upon as part of the reason for the decision to the applicant to comment. 

3. Before turning to the grounds in detail it is important to observe that none were supported by particulars.  As a result it was not possible to tell what was the real basis, in fact or law, upon which the contentions for the existence of jurisdictional error were premised. 

4. There is a long line of cases now developing to the effect that grounds without particulars are amenable for dismissal on that basis alone.  The cases include WZATH v Minister for Immigration and Border Protection,[1] BHK15 v Minister for Immigration and Border Protection,[2] AQN15 v Minister for Immigration and Border Protection,[3] WZAVW v Minister for Immigration and Border Protection,[4] SZNXA v Minister for Immigration and Citizenship[5] and CNN15v Minister for Immigration and Border Protection.[6]  That said, I do not consider it appropriate to dismiss this case simply because the applicant, who is not legally trained, does not provide particulars.  Instead, I propose to consider each ground on its merits. 

   [1] [2014] FCA 969

   [2] [2016] FCA 569

   [3] [2016] FCA 571

   [4] [2016] FCA 760

   [5] [2010] FCA 775

   [6] [2017] FCA 579

Grounds one and three

1. In my view, these grounds fail. 

2. The tribunal properly invited the applicant to attend a hearing before it in accordance with ss 425 and 425A. She attended and was accompanied by an interpreter. She was on notice of the issues on review. It seemed to me that the tribunal complied with the obligations that were imposed upon it, as stated by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs.[7] In fact, the tribunal discussed with the applicant whether it was possible for the applicant to relocate safely or reasonably to another part of Malaysia so as to avoid the harm feared from her husband. In doing so, the tribunal considered her submissions as to why she said she could not relocate. The tribunal addressed that in paragraphs 45 to 50 of its reasons. To my mind, no breach of s 425 occurred.

   [7] (2006) 228 CLR 152

3. The information upon which the tribunal relied in making its decision was either country information or it was information which the applicant herself provided.  No breach of s 424A therefore occurred. 

Ground two

1. In this ground the applicant made a feigned attempt to assert that the tribunal was biased.  Since the High Court’s decision in Minister for Immigration and Multicultural Affairs v Jia Legeng,[8] it has been the law that an allegation of bias must be firmly and distinctly made then it must be clearly proven.  The applicant in this case made no attempt to provide any evidence to suggest the tribunal exhibited either actual or apprehended bias.  I was unable to discern the existence of any. 

   [8] (2001) 205 CLR 507

2. To the contrary.

3. The tribunal’s reasons indicated that the applicant was provided with an opportunity to give evidence and present arguments.  In my view, the tribunal approached its task with an open mind amenable to persuasion.  This ground was without merit. 

4. Finally, the minister brought to my attention a point that was not strictly the subject of the applicant’s application to this court, namely the s 438 certificate. Mr Cunynghame did so consistent with his obligations as the representative of the minister as a model litigant.

5. The relevant certificate related to folios 54 and 56 of departmental documents.  One was a checklist and the other was an internal email concerning the tribunal’s request for the departmental file.  No evidence was adduced before me to suggest that the tribunal disclosed the certificate to the applicant or invited her to comment on the certificate.  In my view, the considerations espoused in such cases as Minister for Immigration and Border Protection v Singh,[9] MZAFZ v Minister for Immigration and Border Protection[10] and Minister for Immigration and Border Protection v BJN16[11] are apposite.  In my view, the disclosure of the certificate could have made no difference to the tribunal’s task. 

   [9] (2016) 244 FCR 305

   [10] (2016) 243 FCR 1

   [11] (2017) 253 FCR 21

6. In my view, it could not be said that the applicant lost an opportunity to advance her case as a result of the tribunal’s failure to disclose the existence of the certificate.  To that end I agree with the minister’s submissions, specifically that the observations of Barker J in AVO15 v Minister for Immigration and Border Protection[12] and the observations of the High Court in Minister for Immigration and Border Protection v WZARH[13] apply. 

   [12] [2017] FCA 566

   [13] (2015) 256 CLR 326

Conclusion

1. For the reasons given above, in my view, no jurisdictional error was made. 

2. It follows that the applicant should not have leave for this case to be reheard as there was no merit in the grant of such leave. 

3. I dismiss this proceeding and order the applicant pay the minister’s costs.  To the costs order, I will add the figure of $1 000. 

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date:              25 October 2018