Cci17 v Minister for Immigration

[2018] FCCA 2610

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCI17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2610

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Applicant: CCI17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 995 of 2017

Judgment of: Judge Riethmuller

Hearing date: 23 August 2018

Date of Last Submission: 23 August 2018

Delivered at: Melbourne

Delivered on: 23 August 2018

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application filed 16 May 2017 be dismissed.

2. The Applicant shall pay the First Respondent’s costs fixed in the sum of $6,659.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 995 of 2017

CCI17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered ex tempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made 4 May 2017. 

2. The applicant in this case applied for a protection visa on 23 March 2015.  At question 17 of his application form (at court book p.9) the applicant sets out that he filled in the form himself without assistance.  The applicant gave a contact address which included an email address that was used via the Tribunal throughout the process.  The applicant did not attend for a hearing before the Tribunal, who ultimately did not accept his claim and rejected his visa application. 

3. The applicant is a citizen of Malaysia who speaks Mandarin.  The applicant had been in Australia from 2009 to 2014 under a different name.  He had previously applied for a protection visa in 2011 but the application was invalid.  With respect to the current application, the applicant did not attend an interview with the delegate and so the delegate refused his application. 

4. The applicant then applied to the Tribunal to review the delegate’s decision.  As set out above, the applicant did not attend for the Tribunal hearing.

5. Not surprisingly, the Tribunal affirmed the decision of the delegate not to grant him a protection visa.  The Tribunal considered the grounds of his application setting them out in summary at [11] as follows:

   ·   He fears harm by [Z’s] people. They damaged his home and work office, hurt him and threatened him with a knife.

   ·   The police refused to protect the applicant and his family as someone of high rank had ordered the police to ignore him.

6. The Tribunal also had regard to the limited evidence before it, bearing in mind that the applicant had not attended to give oral evidence either before the delegate or the Tribunal.  The Tribunal records show that the applicant was invited to attend the hearing on 3 May 2017.  The applicant was also told that if he did not attend the hearing, a decision would be made without further notice. 

7. Although the applicant advised that he would attend, he did not attend the hearing.  The Tribunal proceeded to make a decision.  The Tribunal considered the material it had and found that the information was vague and ambiguous and lacking in detail.  The Tribunal found itself unable to assess the nature and severity of the problems that the applicant referred to in his application.  In summary, the Tribunal concluded:

   22. In sum, I am unable to be satisfied that the applicant has suffered threats, harm, property damage or any other problems that amount, individually or cumulatively, to serious harm for the reasons set out in s.5J(1 ), or for any reasons at all. I am unable to be satisfied that he has suffered any harm that amounts to significant harm. I am unable to be satisfied that the applicant departed Malaysia so as to escape feared harm (such as threats, intimidation, physical or other harm) from a gang, group, or police there, or that he now fears to return to Malaysia for the reasons he has given. I am unable to be satisfied that the applicant genuinely fears serious harm amounting to persecution, or significant harm, arising from any of these circumstances.

Grounds of Application

1. The grounds for the application in his application document:

   Review the Decision Record

   I wish the Judge will consider to re-open the court and review the case

   The decision made by the Tribunal Affirms is not correct Since I wasn’t informed about the hearing

   Because at that time I didn’t know my visa status and was unable to check it, I didn’t know the process of the interview.

   The tribunal didn’t give me enough info about my application.

2. The first ground seeks to have this Court review the case on its merits.  It is not open to this court to rehear cases of this type.  The Court’s jurisdiction is limited to questions of jurisdictional error. 

3. The first part of the second ground suffers the same difficulty in that it seeks to have me reconsider the case on its merits. 

4. The second part of the second ground seems to allege that the applicant did not attend the hearing because he was not told about the hearing.  This ground cannot succeed.  There is ample evidence in the court book that the applicant was told about the hearing. 

5. The next ground says that because the applicant did not know his visa status and was unable to check it, he did not know the process of the interview.  In an affidavit that the applicant lodged at the commencement of these proceedings, the applicant said that he thought if he attended the hearing, he would be at risk of being caught because he thought his visa had expired. 

6. There is nothing to indicate that this misapprehension by the applicant was caused by the Tribunal.  As the applicant sought a protection visa, it is difficult to understand why he would think he would receive such a visa without attending for an interview.  I do not accept that the applicant was unable to check his visa status, as clearly he could have telephoned the department to check his status without them knowing his physical location when he telephoned.

7. In the circumstances, I am not persuaded that this amounts to a ground for judicial review. 

8. The final ground complains that the Tribunal did not give him enough information about his application.  It is not for the Tribunal to assist him in his application.  The obligation on the Tribunal is to consider the material the applicant places before the Tribunal to decide whether he should receive a visa.  The Tribunal had sent the applicant an invitation to attend a hearing: see court book p.73.  In that invitation, the Tribunal told the applicant that they had:

   …considered the material before us but we are unable to make a favourable decision on this information alone.

9. In substance, the applicant was told that if he did not go to the oral interview, he was not going to get the visa.  I am not persuaded that this amounts to a ground for judicial review. 

10. In the circumstances of the case, I therefore dismiss the application.

Costs

1. In this case, the Minister has been successful.  Costs ordinarily follow the event.  The costs order sought is in the sum of $6,659.  Having regard to the Court scale, I find that this is a reasonable sum. 

2. The applicant opposes a costs order on the basis that he does not have the money to pay a costs order.  That is not a basis upon which to refuse to make a costs order. 

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 13 September 2018