CDV17 v Minister for Immigration

[2018] FCCA 3489

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDV17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3489

Catchwords:
MIGRATION – Protection visa – claim to fear harm from loan sharks – credibility based findings adverse to applicant – adjournment application refused – application contained generalised grounds of review – show cause hearing – applicable principles – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 65, 474, 476

Federal Circuit Court Rules 2001 (Cth), r.44.12

Cases cited:

Morad v El-Ashey [2017] FCA 1136
MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593
Nichol v Discovery Africa Limited [2016] FCAFC 182
Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476
Siddique v Minister for Immigration and Border Protection [2014] FCA 1352
Spencer v The Commonwealth (2010) 241 CLR 118
SZTTW v Minister for Immigration and Border Protection  [2014] FCA 837
SZUTB v Minister for Immigration & Border Protection [2015] FCCA 1383
Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158, 122
IPR190

Applicant: CDV17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1032 of 2017

Judgment of: Judge A Kelly

Hearing date: 27 November 2018

Date of Last Submission: 27 November 2018

Delivered at: Melbourne

Delivered on: 30 November 2018

REPRESENTATION

The Applicant: In person

Solicitor for the Respondents: Ms Buhary

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application filed on 19 May 2017 be dismissed.

2. The applicant pay the costs of the first respondent fixed at $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1032 of 2017

CDV17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 19 May 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 28 April 2017 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa pursuant to s 65(1)(a) of the Migration Act 1958 (Cth) (Act).

Background

1. The applicant, a Malaysian national aged 30 years, first arrived in Australia on 29 July 2015.

2. On 12 October 2015, the applicant applied for a Protection (subclass 866) visa.  By her application, the applicant claimed she became involved with loan sharks since she was not working after her company was shut down in September 2015. She claimed she did not have any financial resources to pay the loan sharks and that they had come to her office and house and threatened her.

3. On 27 May 2016, a delegate of the Minister refused to grant the applicant a Protection visa. The delegate was not satisfied that the applicant met the relevant criteria for the grant of the visa.  The delegate recorded the applicant’s claims at [4] and found at [22] that the applicant provided minimal detail and vague information in her application.  The delegate further noted the applicant’s claim that her company was shut down in September 2015 while Department records indicated the applicant had arrived in Australia on 29 July 2015 and had remained onshore since. This raised significant doubt as to the applicant’s claims. Country information before the delegate confirmed that in Malaysia the practice of illegal money lending was widespread but that police took action against it.  The delegate was satisfied that the applicant could reasonably expect to obtain protection from the Malaysian authorities.

4. On 30 May 2016, the applicant lodged an application to the Tribunal for a review of the delegate’s decision.

5. On 6 March 2017, the applicant was invited to attend a hearing before the Tribunal on 21 April 2017 to give evidence and present arguments relating to the decision under review. The applicant attended that hearing and was assisted by a Malay interpreter.  

6. On 28 April 2017, the Tribunal made a decision to affirm the delegate’s decision to refuse the visa application.  It provided a statement of reasons for that decision (Reasons) which, although brief addressed the issues that arose in relation to the delegate’s decision that was under review.

Tribunal decision

1. The Tribunal found significant discrepancies in the applicant’s evidence relating to the circumstances of her claimed dealings with loan sharks including that the loan had been taken out because she was unemployed, that the loan had been taken out to assist her mother’s business and that the loan was for the assistance of her brother who had been incarcerated. The inconsistencies also included whether the applicant had been working for her company or as a nurse and whether the hospital at which she had worked had been shut down or was still operating: [12]-[17]. It found her chronology of events to be implausible: [17].

2. A note to the Hearing Record stated that the applicant had no documents but wanted time in which to procure a document from her mother in relation to her having borrowed money for the apparent purpose of securing her obligations as guarantor for her brother. The Tribunal refused that request because the applicant had been on notice from the delegate’s decisional record that her claim to owe money was not accepted, and that she had had sufficient time to provide supporting evidence and the evidence she intended to obtain did not corroborate her claim to owe money: [18].

3. The Tribunal found that the claim to have borrowed money from loan sharks had been fabricated: [19]. It further found that the applicant had not claimed that she had a well-founded fear of persecution for any of the reasons enumerated in s 5J. The Tribunal further found that even had it accepted the applicant’s clams to fear of retribution from loan sharks, there was nothing to indicate that such fear amounted to persecution for a prescribed reason: [20].

4. The Tribunal found that the applicant did not satisfy the refugee criterion in s 36(2)(a) and further that the applicant was not a person in respect of whom Australia owed protection obligations.

Procedural history

1. On 19 May 2017, the applicant filed an application for judicial review of the Tribunal’s decision.

2. On 15 May 2017, the applicant affirmed an affidavit which exhibited a copy of the Reasons but which did not otherwise adduce any evidence in support of the application for judicial review.

3. By a Response filed on 7 August 2017, the Minister sought that the application be dismissed on the basis that no arguable case for the relief sought was raised.

4. On 5 December 2017, orders were made, by consent, listing the application for a show cause hearing. By this order, the applicant was afforded an opportunity to file an amended application with proper particulars, a supplementary court book and written submissions in support of the application. The applicant did not take those opportunities.

5. On the day of the hearing the applicant sought an adjournment. The application was opposed.  I refused the application.  The application had been set down for hearing by consent orders made on 5 December 2017.  The applicant had been on notice from the Minister’s Response that no arguable case for relief was shown.  The applicant was asked when she had decided to consult a lawyer.  He produced her phone which displayed a message to the effect that the consultation of a lawyer had been under consideration from at least 12 November 2018.

Applicable principles

1. Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: ss 474(2), 476(2). Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision: Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

2. Rule 44.12(1) of the Federal Circuit Court Rules 2001 (Cth) confers power on the court at the hearing of an application to show cause, to grant relief by way of dismissal of the proceeding, or to adjourn the proceeding for a final hearing, or otherwise to make final orders in relation to the claims for relief.

3. The course which the court may adopt on a show cause hearing will depend upon whether or not it has been satisfied that the applicant has raised an arguable case for relief: r 44.12(1)(a)-(c). An order under r 44.12(1) is an interlocutory order: r 44.12(2). The power conferred by r 44.12 has been described, aptly, as a form of summary dismissal: MZAJQ v Minister for Immigration & Border Protection [2015] FCCA 593, [13] (Whelan J); SZUTB v Minister for Immigration & Border Protection [2015] FCCA 1383, [10] (Smith J).

4. As the power conferred by r 44.12 is akin to a form of summary dismissal, it is convenient to address briefly the principles relating to summary judgment. Those principles are well settled: see Spencer v The Commonwealth (2010) 241 CLR 118.

5. Caution must be exercised when considering whether to grant summary judgment.  Such caution is equally appropriate upon the determination of a show cause hearing.

6. The power to grant summary judgment is expressed in permissive terms; the court may give judgment and may order that it be dismissed generally or in relation to any claim.  Critically, in the case of summary judgment, the power is not engaged unless the court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding.  So too, the power to dismiss an application on a show cause hearing is engaged only where the applicant has not satisfied the court that an arguable case for relief has been raised.

7. In Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158, 122 IPR 190, Perram, Jagot and Beach JJ considered the principles applicable to summary judgment not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer, supra, stated a series of further propositions, including the following:

   a)first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success;

   b)secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification;

   c)thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved;

   d)fourthly, the familiar intensifying epithets such as ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power to grant summary judgment;

   see at [46]-[49].  The propositions stated in Upaid Systems were endorsed by the Full Court in Nichol v Discovery Africa Limited [2016] FCAFC 182 at [133]-[142] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey [2017] FCA 1136, [15] (Kenny J).

8. In SZUTB, Smith J held that the power conferred by r 44.12(1) had two components: (1) lack of satisfaction that the applicant had raised an arguable case; (2) a residual discretion whether or not to dismiss the application: (2015) 298 FLR 6, [12]-[16] citing Siddique v Minister for Immigration and Border Protection [2014] FCA 1352,

   
   

   [19]-[21] (Gilmour J); SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [20] (Beach J). As Gilmour J explained in Siddique, it would be “wrong for the court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed the application should necessarily be dismissed.”  That is, the residual discretion remains to be considered.

9. I apply those principles in determining this show cause application.

Consideration

1. The application contains four grounds of review which read:

   1. The Administrative Appeals Tribunal erred in law by taking into consideration facts not relevant to the matter in making the decision.

   2. The Administrative Appeals Tribunal erred in law by not taking into considerations relevant facts in making the decision.

   3. The Administrative Appeals Tribunal erred in not taking into consideration relevant Country information in making the decision.

   4. The Administrative Appeals Tribunal erred in not taking into consideration under the Complementary Protection Provision of the Migration Act 1958 of the information provided by the Applicant.

2. Grounds 1 and 2 are wholly unparticularised and do not demonstrate any error on the part of the Tribunal.

3. Ground 3, which complains of a failure to consider country information, is to be assessed in the context that neither the applicant nor her representative submitted any country information. The applicant was given the opportunity to give evidence and present arguments in relation to the issues arising on the decision of the Delegate. The Delegate had regard to and set out in detail, extensive country information: [20]. The Tribunal was well entitled to decide as it did upon the factual issues respecting the applicant’s claims to fear harm from loan sharks. Those factual premises for her claim were rejected. This obviated the need to consider further any issue in relation to country information.

4. Ground 4 asserts, contrary to the fact, that the Tribunal failed to consider the issue of complementary protection. It clearly did so: [21]-[22]. Insofar as the applicant complains of a failure to consider information that she provided, this is undermined by the matters in [28] above.

Conclusion

1. As the applicant was self-represented, I have examined the Tribunal’s decision and the materials comprised in the court book.  I do not identify any error in the process or reasons of the Tribunal such as to suggest that the decision is affected by jurisdictional error.  The application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Associate: 

Date:  30 November 2018