CCI17 v Minister for Home Affairs
[2019] FCA 392
•19 February 2019
FEDERAL COURT OF AUSTRALIA
CCI17 v Minister for Home Affairs [2019] FCA 392
Appeal from: CCI17 v Minister for Immigration & Anor [2018] FCCA 2610 File number: VID 1080 of 2018 Judge: BROMBERG J Date of judgment: 19 February 2019 Catchwords: MIGRATION - Protection (Class XA) visa – appeal from the Federal Circuit Court of Australia (“FCC”) – whether FCC erred in failing to find jurisdictional error in the decision of the Administrative Appeals Tribunal (“Tribunal”) – exercise of power under s 426A of the Migration Act 1958 (Cth) – whether Tribunal should have offered the appellant an opportunity to make comments or provide more detailed information before making its decision – where the appellant had notice of, and opportunity to present further evidence and information to the Tribunal – appeal dismissed Legislation: Migration Act 1958 (Cth), ss 425, 426A Date of hearing: 19 February 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 18 Counsel for the Appellant: The Appellant appeared in person assisted by an interpreter Solicitor for the First Respondent: Ms N Buhary of DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 1080 of 2018 BETWEEN: CCI17
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
19 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
This is an appeal from the judgment of the Federal Circuit Court of Australia published as CCI17 v Minister for Immigration & Anor [2018] FCCA 2610. By that judgment the primary judge dismissed the appellant’s application for judicial review of a decision of the second respondent (“the Tribunal”), to affirm a decision of a delegate of the first respondent (“the Minister”) to reject the appellant’s application for a Protection (Class XA) visa (“visa”).
The relevant background facts are conveniently set out in the reasons for decision of the Tribunal. The appellant is a citizen of Malaysia who arrived in Australia on 25 December 2014. On 24 March 2015, the appellant applied for the visa. The appellant failed to attend an interview with a delegate of the Minister and his application for the visa was refused on 19 December 2016. The appellant then applied to the Tribunal for review of the delegate’s decision.
The summary of the appellant’s claims for protection are set out at [11] of the Tribunal’s reasons. In summary, those claims were:
(1)he fears harm by “Zammuddins’s people”. They damaged his home and work office, hurt him and threatened him with a knife; and
(2)the police refused to protect the appellant and his father as someone of high rank had ordered the police to ignore him.
As the Tribunal records at [13] of its reasons, on 4 April 2017 the Tribunal wrote to the appellant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the appellant to give oral evidence and present arguments at a hearing scheduled on 3 May 2017. The invitation advised the appellant that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice.
The appellant replied to that invitation advising that he would attend the scheduled hearing. However as the Tribunal records at [15] of its reasons, the appellant did not appear before the Tribunal at the scheduled hearing, nor did he contact the Tribunal in relation to that non‑attendance or seek any further postponement. The Tribunal’s reasons record that in those circumstances and pursuant to s 426A of the Migration Act 1958 (Cth) (“Act”), the Tribunal decided to make a decision on the appellant’s application for review without taking any further action to enable the appellant to appear before the Tribunal.
So far as its provisions are relevant, s 426A of the Act is in the following terms:
Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 425 to appear before the Tribunal; but
(b)does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a)by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b)by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.
…
The critical findings of the Tribunal in determining to dismiss the appellant’s application are set out in [18]-[21] of the Tribunal’s reasons. In summary, the Tribunal regarded the information that had been provided in support of the appellant’s application to be vague, ambiguous and lacking in detail in significant respects. In particular, the Tribunal determined that it had insufficient information about the appellant’s claim that he was targeted by “Zammuddins’s people”, and also insufficient details of his claim that the police refused to protect him and his family. On that basis, as the Tribunal stated at [20] of its reasons, the Tribunal was unable to be satisfied that the appellant was targeted by “Zammuddins’s people” and harmed and threatened as alleged in the application. Furthermore, the Tribunal was unable to be satisfied that the police had refused to protect the appellant and his family.
Accordingly, the Tribunal found that it was unable to be satisfied that the appellant’s fears were well founded or that the appellant may face serious or significant harm if he is returned to Malaysia. The Tribunal held that the appellant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act. For those reasons, the Tribunal affirmed the decision of the delegate of the Minister not to grant the appellant the visa.
The appellant then applied for a judicial review of the Tribunal’s decision before the Federal Circuit Court of Australia. The appellant was unrepresented. It is not necessary for me to set out the grounds of review agitated before the primary judge, save to say that those grounds were brief and, in the main and as the primary judge held, the grounds essentially sought a review of the appellant’s case on its merits.
By his Notice of Appeal in this Court, the appellant has identified two grounds of appeal. Those grounds are as follows (errors in original):
1.The Federal Circuit Court Judge Riethmuller was wrong in making the decision to dismissed the application that the review applicant filed on May 16th 2017 with the Federal Circuit Court of Australia.
2.The Federal Circuit Court Judge Riethmuller failed to consider the arguments the review applicant had put forward to the Federal Circuit Court that the AAT had constituted judicial error when considering the review applicant's arguments in the way that the review applicant had already provided information about his personal encounters with Zammuddin's group in Malaysia and had suffered harm, threat and persecuted by the group, which had led him to flee the country, if the tribunal had any doubts on any particular issues, the tribunal should offered the visa applicant to make comments or provided more details information before a decision can be made.
The appellant appeared before me today unrepresented but assisted by an interpreter. After having explained to him the nature of the proceeding I invited the appellant to make submissions. The appellant made very brief submissions. First, he sought to tell the Court about the person who he claimed had harmed him. Otherwise, his submission was confined to a general complaint that the “judge” had not granted him a visa.
By Ground of the appeal, the appellant merely asserts that the primary judge was wrong. The ground is completely unparticularised and no particulars of it were provided at the hearing. For that reason alone this ground is incapable of establishing any appellable error in the decision of the primary judge. Ground 1 of the Notice of Appeal must therefore be dismissed.
The terms of Ground 2 are somewhat convoluted and it is difficult to gain a full understanding of what is intended. The ground seems to allege that the primary judge failed to consider the arguments put before him, and in particular, that the appellant had put arguments to and provided information to the Tribunal about his encounters with “Zammuddin’s group” in Malaysia and the harm that he had suffered and that if the Tribunal had any doubts about those matters, the Tribunal should have offered the appellant an opportunity to make comments or provide more detailed information before making its decision.
A generous construction of Ground 2 might result in a conclusion that Ground 2 is really a re‑agitation of the grounds put to the primary judge. A less generous construction would result in a conclusion that Ground 2 is really raising a new ground for which leave would be required. The Minister’s submissions proceeded on the generous basis that Ground 2 should be regarded as a re-agitation of a matter or matters already argued before the primary judge. I will proceed on that basis and, accordingly, not deal with any questions as to whether leave may be required to agitate Ground 2.
In my view, Ground 2 does not point to any error of the Tribunal at all, let alone jurisdictional error. It is not the case that the Tribunal is obliged to make out the case for a visa applicant. The Tribunal came to the view, as its reasons identify, that it was unable to make a decision favourable to the appellant on the basis of the information provided by the appellant which accompanied his application.
Accordingly, the Tribunal did what s 425 of the Act contemplates, which is to invite the appellant to put before the Tribunal further evidence or information in support of his case. The appellant failed to do that and, as I have already detailed, in those circumstances, the Tribunal exercised the power given to it by s 426A of the Act to make a determination without taking any further action to enable the applicant to appear before the Tribunal.
There was no error in the Tribunal taking that course. Nor is there any error by the primary judge failing to identify an error of the kind that Ground 2 of the appellant’s Notice of Appeal alleges. That ground must also be dismissed.
For those reasons, the appeal must be dismissed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 20 March 2019
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