CCZ17 v Minister for Immigration

[2020] FCCA 696

FEDERAL CIRCUIT COURT OF AUSTRALIA

CCZ17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 696

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to a decision made by the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – unparticularised claims of errors of law – whether Tribunal relied on findings unsupported by evidence – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476

Cases cited:
Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105

Applicant: CCZ17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1524 of 2017

Judgment of: Judge Manousaridis

Hearing date: 13 March 2020

Date of Last Submission: 13 March 2020

Delivered at: Sydney

Delivered on: 27 March 2020

REPRESENTATION

Applicant in person, assisted by an interpreter

Solicitors for the First Respondent: Mr C Burke of Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1524 of 2017

CCZ17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Malaysia, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the second respondent (Tribunal) affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) Subclass 866 visa (Protection visa).

Claims for protection

1. In her (valid) form of application for a Protection visa the applicant claimed she is seeking a Protection visa because of the political situation in her country.[1] She claimed she is one of the Malaysians against the current government. The applicant was involved in many demonstrations, assemblies, and revolutions that were held by the Opposition “to make changes for better government”. The applicant claimed that if she were returned to Malaysia, it will be hard for her to live because the unstable political environment affected the economy of the country, and it will be impossible for her to obtain a job in her country.[2] The applicant also claimed she might be caught by the Malaysian authorities because she is against the government.[3]

   [1] The applicant had earlier lodged an invalid application.

   [2] CB100

   [3] CB102

2. Before the Tribunal the applicant said she did not vote at the last general election, and she feared she might be jailed for not doing so. The applicant also said she attended one demonstration two or three years before she came to Australia. The applicant said she followed her friends, but did not speak.[4]

   [4] CB190-191, [15]-[22]

Tribunal’s reasons

1. The Tribunal did not accept the applicant had ever attended any political demonstrations, or that the applicant would ever face any potentially relevant difficulty for having declined to vote in elections in Malaysia. The Tribunal relied on its finding that the applicant’s “evidence was vague and also contradictory, to the very small extent that any of it was in any way detailed”; on the applicant’s evidence that she belonged to no associations, groups, or parties, she did not have a preferred party, that she had been confused and did not know who to support, and she attended a demonstration but the applicant did not claim anything happened to the protesters; and on country information that showed voting was not compulsory in Malaysia.

2. Given these findings the Tribunal was not satisfied the applicant met the refugee criterion provided for by s.36(2)(a) of the Act or the complementary protection criterion provided by s.36(2)(aa) of the Act.

Grounds of application

1. The application contains the following grounds (errors in original):

   1.The decision was effected by an error of law.

   2.The decision was made without proofs by tribunal.

2. At the hearing before me I invited the applicant, who is not legally represented, but who was assisted by an interpreter, to inform me why she believes the Court should set aside the Tribunal’s decision. The applicant said the Tribunal was correct. The only submission the applicant made was that she be allowed to remain in Australia for a little longer to enable her to earn money to pay medical bills. That does not disclose any jurisdictional error by the Tribunal.

3. The grounds stated in the application also disclose no jurisdictional error. The first ground asserts an error of law without identifying the error. The second ground assumes the Tribunal made findings that could only have been made on the basis of evidence, but there was no evidence to support such findings. That assumption is incorrect. The Tribunal’s decision was one of non-satisfaction. That is, the Tribunal was not satisfied that the claims and evidence on which the applicant relied met the criteria for the grant of a Protection visa, either under s.36(2)(a) or s.36(2)(aa) of the Act. A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out. [5]

   [5] Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105, at [7] (Heerey J)

Disposition and costs

1. I propose to order that the application be dismissed. At the hearing before me I invited submissions on costs. The Minister submitted that costs should follow the event, and that, should the Minister succeed, his costs should be set in the amount of $5,000. I took the applicant to submit that she would be unable to meet any costs order. That is not a sufficient reason, at least in the circumstances of this case, for not awarding costs. I am also satisfied that $5,000 is a reasonable amount for which the Minister’s costs should be set. I propose, therefore, to also order that the applicant pay the Minister’s costs set in the amount of $5,000.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 27 March 2020