Cci18 v Minister for Home Affairs
[2019] FCCA 537
•5 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CCI18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 537 |
| 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 – claim of bias not substantiated – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: AEH of 2002 v Minister for Immigration [2002] FCA 927 CQG15 v Minister for Immigration [2016] FCAFC 146 Htun v Minister for Immigration (2001) 233 FCR 136 Minister for Immigration v Eshetu (1999) 197 CLR 611 Selvadurai v Minister for Immigration [1994] FCA 301; (1994) 34 ALD 347 |
| Applicant: | CCI18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1165 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 5 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2019 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Ms C Hammerton of Sparke Helmore |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1165 of 2018
| CCI18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 April 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to this matter are set out in the Minister’s outline of submissions, filed on 26 February 2019.
The applicant, a citizen of Malaysia, arrived in Australia on 30 September 2016 as the holder of a UD-601 Electronic Travel Authority visa.[1] On 29 December 2016, he applied for a protection visa.[2] The applicant claimed to fear harm in Malaysia arising from a dispute with corrupt government officers and police in relation to the operation of his mobile phone business.[3] On 7 March 2017, the delegate refused to grant the visa.[4] The applicant applied to the Tribunal for review on 2 April 2017[5] and attended a hearing with the assistance of a Mandarin interpreter on 8 September 2017.[6] On 5 April 2018, the Tribunal affirmed the delegate’s decision.[7]
[1] Court Book (CB) 56
[2] CB 1
[3] CB 37
[4] CB 56
[5] CB 74
[6] CB 83
[7] CB 89
Tribunal decision
The Tribunal noted that the applicant provided no documentary evidence in support of his claims[8] and did not suggest that his race (ethnic Chinese) had anything to do with the harm he feared in Malaysia.[9]
[8] CB 92 at [17], [22]
[9] CB 92 at [19], [30]
The Tribunal accepted that the applicant ran a mobile telephone shop in Kuala Lumpur from 2007 to 2016, and was also prepared to accept (albeit with difficulty) that:
a)items of his stock were confiscated;[10]
b)local police were contacted and showed perfunctory interest in the applicant’s plight initially and then treated him more harshly when he tried to follow up the matter; and
c)local police obtained a 5,000 Malaysian dollar bribe from the applicant when he complained to them in May 2015.[11]
[10] CB 93 at [31]
[11] CB 94 at [32]
The Tribunal found that on the second occasion that the applicant tried to engage the police, the police stopped mistreating him. The Tribunal observed that this was about three months before the applicant departed Australia, without any hindrance from the authorities.[12] The Tribunal found that the applicant did not face a real chance of harm from government officials[13] or the police.[14] It further found that the authorities would not prevent the applicant from starting another business or seeking employment in Malaysia,[15] and was satisfied that the applicant would have adequate protection from the police.[16] Further, the Tribunal was not satisfied that the applicant continued to have any genuine interest in pursuing the matter of his confiscated stock and found that he would not pursue the matter, not due to a fear of harm, but due to a lack of genuine interest and lack of evidence.[17]
[12] CB 94 at [32]
[13] CB 94 at [34]
[14] CB 94 at [35]
[15] CB 94, [36]
[16] CB 95, [37]
[17] CB 95 at [38]
In light of the above, the Tribunal was not satisfied that the applicant faced a real chance of persecution[18] and, for the same reasons, was not satisfied that there was a real risk the applicant would suffer significant harm.[19]
[18] CB 95 at [39]
[19] CB 95 at [45]
The present proceedings
These proceedings began with a show cause application filed on 26 April 2018. The applicant continues to rely upon that application. There are three grounds in it:
There exist jurisdictional errors.
1. The Tribunal considered my application with bias.
The Tribunal relied on his experience in Australia to judge what had happened in different country.
2. The Tribunal refused my claims without reasonable grounds.
3. The Tribunal does not properly consider the discrimination faced by Chinese in Malaysia and referred to improper evidence against my claims.
I have before me as evidence the court book lodged on 15 June 2018 and filed on 26 June.
I received as a submission the applicant’s affidavit filed with his application. That refers to the difficulties the applicant says he encountered in Malaysia.
I invited oral submissions from the applicant this afternoon. He said that his concern with the Tribunal’s decision was that it was biased. When I asked him what gave rise to that concern, however, he was not able to point to anything. It is apparent that there is nothing manifest supporting the allegation of bias. Neither was the applicant able to expand upon his other grounds of review. The Minister’s submissions deal adequately with those grounds and I agree with them.
Insofar as Ground 1 alleges bias, the decision record reveals no pre‑judgement, and indicates that the applicant was provided with an adequate opportunity to give evidence and present arguments at the hearing. The material before the Court does not otherwise provide any foundation for a claim that the Tribunal approached the matter with a closed mind or did not conduct its review in good faith.
As for the allegation that the Tribunal relied on its own personal experience, while the Tribunal is entitled to rely on its own knowledge or personal experience to inform its view of relevant issues,[20] there is no indication that the Tribunal did so in the present matter. It largely accepted the applicant’s claims, but was not satisfied that he faced harm on return to Malaysia. These findings were open to the Tribunal on the material before it and for the reasons it gave.
[20] AEH of 2002 v Minister for Immigration [2002] FCA 927 at [13] per Branson J
In relation to the contention in Ground 2 that the Tribunal refused the applicant’s claims without “reasonable grounds”, the Tribunal does not need to possess rebutting evidence before holding that a particular factual assertion is not made out.[21] Insofar as this ground amounts to a contention that the Tribunal’s reasoning is illogical or unreasonable, it should be viewed as merely an emphatic way of expressing disagreement with it.[22]
[21] CQG15 v Minister for Immigration [2016] FCAFC 146 at [65]; Selvadurai v Minister for Immigration [1994] FCA 301; (1994) 34 ALD 347 per Heerey J (at 348)
[22] Minister for Immigration v Eshetu (1999) 197 CLR 611 at 626 [40] per Gleeson CJ and McHugh J
Contrary to the assertion in Ground 3, the applicant made no claim to fear harm based on his race (ethnic Chinese). The decision record indicates that the Tribunal went so far as to “prompt” the applicant to consider if race was relevant to why he was targeted by the authorities, but the applicant “explicitly excluded the claimed events … involved discrimination for the reasons of race, religion, nationality, membership of a particular social group or political opinion”.[23] The Tribunal was not required to consider a claim not made or clearly arising on the material before the Tribunal.[24] This ground cannot succeed.
[23] at [30]
[24] Htun v Minister for Immigration (2001) 233 FCR 136
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court’s scale as it applied when the application was filed. The applicant did not wish to be heard on costs.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 8 March 2019
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