CFD17 v Minister for Immigration

[2017] FCCA 3146

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFD17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3146

Catchwords:
MIGRATION – Administrative Appeals Tribunal – the Tribunal complied with its statutory obligations in the conduct of the review – the questioning of the applicant in the course of the review is not conduct by which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 5J, 36, 438, 476.

Applicant: CFD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1596 of 2017

Judgment of: Judge Street

Hearing date: 14 December 2017

Date of Last Submission: 14 December 2017

Delivered at: Sydney

Delivered on: 14 December 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr J Pinder
Minter Ellison Lawyers

ORDERS

1. The application is dismissed.

2. The applicant to pay the first respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1596 of 2017

CFD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 1 May 2017 affirming a decision of the Delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of Malaysia and his claims were assessed against that country. The applicant arrived in Australia on an Electronic Travel Authority (Visitor) (Subclass 976) visa on 12 November 2008. It was not until 26 March 2015 that the applicant applied for a protection visa. On 22 February 2016, the Delegate found the applicant failed to meet the criteria for the ground of a visa. 

The Tribunal’s decision

1. The applicant applied for review on 18 March 2016. By letter dated 3 April 2017, the applicant was invited to attend a hearing before the Tribunal on 28 April 2017. The applicant appeared on that date to give evidence and present arguments. The applicant claimed to fear harm on the basis of his Chinese ethnicity, his political opinion, and on account of a car accident in which two people were killed. The applicant initially claimed some Malays were racist and that he was involved in campaigns against racially discriminatory policies in Malaysia.  However, at the hearing, the applicant conceded that he did not fear harm on that basis.

2. The Tribunal identified the background to the application for review and set out the relevant law.  The Tribunal summarised the applicant’s migration history and relevantly, that the applicant remained unlawfully in Australia from 12 October 2011 until applying for the protection visa on 26 March 2015. The Tribunal identified the applicant’s claims and summarised the applicant’s evidence.

3. The Tribunal in the course of its reasons, identified the applicant appeared to be unaware of the claims he had made in his written statement and the applicant himself acknowledged that these claims have no substance. The Tribunal referred to the delay in the applicant seeking protection and found it is more likely the applicant did not seek protection sooner because he does not actually fear suffering serious or significant harm in Malaysia, rather than because he was unaware that he could not seek protection in Australia. The Tribunal found the applicant’s delay reflected poorly on his credibility in relation to his alleged fear of persecution if he returns to Malaysia. 

4. The Tribunal found there was not a real chance the applicant will suffer serious harm as a result of being an ethnic Chinese. The Tribunal was not satisfied that the applicant’s fear is well-founded or that there is a real chance that he will be threatened, harassed, detained, or otherwise persecuted for one or more of the five reasons set out in s 5J(1) of the Act if he returns to Malaysia now or in the reasonably foreseeable future. The Tribunal found the applicant did not meet the criteria under s 36(2)(a) of the Act. 

5. The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

Grounds in the application

1. These proceedings were commenced on 24 May 2017 and the application sets out the following orders sought:

   1. I don't think DIBP and AAT's decision are fair and reasonable as they failed to take a good consideration in my real situation in my home country and ignoring the risk of our background

   2, AAT did not consider my statement and comments given to the questions asked in the hearing and judge my fears simply by the member's prejudice.

   3. AAT failed to prudently consider my risk, discrimination and financial hardship if I return to origin.

2. Under orders sought by Applicant, the applicant set out the grounds of the application as follows:

   1, I am a Malaysia citizen and suffered from fears for returning to my home country due to discrimination

   2, AAT ignored my fears and financial hardship

   3, AAT member have strong prejudice to our appeal, I do not think I have been fairly treated.

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by a relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.  The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

4. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs. 

5. The Court explained that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

The applicant’s submissions from the bar table

1. From the bar table, the applicant indicated that he did not wish to make any submissions. The applicant confirmed that he had received the first respondent’s written submissions and that he had the submissions read to him. The Court explained to the applicant that those written submissions identified why the first respondent submitted that the grounds in the applicant’s application failed to make out any relevant legal error and why the Minister submitted that the existence of the s 438 certificate in the present case did not give rise to any denial of procedural fairness or jurisdictional error and why the first respondent submitted that the Tribunal’s decision was not unlawful or unfair.

2. Following the submissions of the first respondent identifying that the first respondent relied upon the written submissions and the authorities identified in relation to the s 438 certificate, the Court having received the documents the subject of the certificate, should consider to determine whether there is any relevant jurisdictional error. The applicant still maintained that he did not wish to put any submissions.

Adjournment application raised from the bar table

1. The applicant then in reply indicated that he wanted more time. The Court treated the applicant as seeking an adjournment.  The applicant contended that he had only recently received the first respondent’s submissions. This is a case where the proceedings were commenced on 24 May 2017 and on 16 June 2017 orders were made by a Judge of the Court giving the applicant an opportunity to file an amended application and affidavit evidence.  No such documents were filed.

2. Moreover, on 26 October 2017, this Court made an order fixing the matter for hearing today which was sent to the applicant’s address identified on the application. Nothing said by the applicant from the bar table identified any utility in granting an adjournment. The Court is not satisfied that an adjournment is warranted in the interests of the administration of justice. The Court notes that the first respondent neither consented nor opposed the adjournment.

Existence of section 438 certificate

1. The Court has had tendered the documents the subject of the section 438 certificate. Those documents are a disclosure decision checklist and an identification test. Neither document was relevant to the issues in the applicant’s application for review. Neither document can be said to be credible, relevant, and significant. On the face of the material before the Court, the Tribunal did not have regard to or act upon the documents the subject of the certificate. In these circumstances where the documents are plainly irrelevant to the issues before the review, there was no denial of procedural fairness in the conduct of the review by the failure to disclose the certificate or the documents the subject of the certificate.

2. Further, there was no practical injustice in the present case by reason of the failure to disclose the certificate or the documents the subject of the certificate, because the documents are patently irrelevant. Accordingly, no jurisdictional error is made out by reason of the failure to disclose the s 438 certificate or the documents the subject of the certificate. Further, this is a case where the documents the subject of the certificate could not possibly have an impact on the outcome of the review, and even if there was a relevant error, relief should be refused on discretionary grounds.

Reasoning in paragraph 1 of the orders sought

1. In relation to paragraph 1 of the orders sought, the Tribunal’s reasons reflect an orthodox approach to the determination of the applicant’s claims. The adverse findings by the Tribunal in respect of the applicant’s Chinese ethnicity or having an actual or imputed political opinion cannot be said to lack an evident and intelligible justification, particularly given the very substantial delay by the applicant in seeking protection. For the reasons given by the Tribunal summarised above, the adverse findings were open and logical. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. Accordingly, no jurisdictional error is made out by paragraph 1 of the orders sought.

Reasoning in paragraph 2 of the orders sought

1. In relation to paragraph 2, the Tribunal’s reasons reflect a consideration of the applicant’s claims and evidence. The adverse findings by the Tribunal was not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. Further, the questioning of the applicant in the course of the review is not conduct by which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. It was appropriate for the Tribunal to determine the applicant’s credit particularly in the circumstances of the present case, given the very substantial delay.  No jurisdictional error was made out by paragraph 2 of the orders sought.

Reasoning in paragraph 3 of the orders sought

1. In relation to paragraph 3, this in substance reflects a disagreement with the adverse findings and invites the Court to engage in impermissible merits review. No jurisdictional error is made out by paragraph 3.

Reasoning in ground 1 of the application

1. In relation to ground 1, this is a mere assertion of the applicant’s claims and does not identify any jurisdictional error. 

Reasoning in ground 2 of the application

1. In relation to ground 2, this reflects a disagreement with the adverse findings by the Tribunal and does not identify any jurisdictional error. 

Reasoning in ground 3 of the application

1. In relation to ground 3, this in substance is a repetition of the assertions made in paragraph 2 of the orders sought. For the reasons already given, there is no substance in the contention that the Tribunal was the subject of actual or apprehended bias. On the face of the material before the Court, the Tribunal conducted the review with an open mind reasonably capable of persuasion as to the merits. No jurisdictional error is made out by ground 3.

2. Accordingly, as the application fails to disclose any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 February 2018