CJD17 v Minister for Immigration

[2018] FCCA 2256

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJD17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2256

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by not conducting further hearings – whether the Tribunal erred by not making further enquiries – whether the Tribunal’s decision was affected with illogicality or based upon inferences – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 426A

Cases cited:

Minister for Immigration & Citizenship vSZIAI (2009) 83 ALJR 1123

Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611

Applicant: CJD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1700 of 2017

Judgment of: Judge Smith

Hearing date: 26 July 2018

Date of Last Submission: 26 July 2018

Delivered at: Sydney

Delivered on: 26 July 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms C Hillary, DLA Piper

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $3,900.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1700 of 2017

CJD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal given on 11 May 2017.  The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa. 

2. The applicant is a citizen of Malaysia who arrived in Australia on 3 May 2016 on a tourist visa.  On 26 July 2016, he lodged an application for a protection visa. The claims made by him in support of that application were summarised at [11] of the Tribunal’s decision as set out below:

   According to his protection visa application, the applicant is an ethnic Chinese Christian born in 1988 in Sitiawan, Perak. He arrived in Australia on 3 May 2016 as a visitor. He left Malaysia because he is against the government system. He joined Bersih to show his dissatisfaction and call for free and fair elections. He joined the Bersih rally in Kuala Lumpur. The Minister of Home Affairs said authorities should take action against all Bersih members and that among legal action that could be taken against Bersih members was under the Peaceful Assembly Act, Penal Code and Police Act. Many people were imprisoned during the rally and police started searching for all Bersih members. He decided to seek refuge. If he returns he will be either jailed or face legal action. He cannot seek state protection because Bersih is an ‘illegal party’ and against the government.

3. On 8 September 2016 a delegate of the Minister considered the application and was not satisfied the applicant met the criteria for the grant of a visa and so refused to grant the applicant a protection visa.  The applicant applied to the Tribunal for review of that decision. 

4. In accordance with its obligation under s.425 of the Migration Act 1958 (Cth) the Tribunal wrote to the applicant to invite him to attend a hearing to be conducted on 9 May 2017. That letter, dated 10 April 2017, was sent to the email address of the applicant given by him as the address for correspondence in his application for review. There was no response to that invitation.

5. An officer of the Tribunal contacted the applicant on two occasions prior to the hearing by SMS, reminding him of the time and date of the hearing.  The first such message was sent on the morning of 2 May 2017 and the second was sent on the morning of 8 May 2017.  Despite the invitation and the reminders sent by text message, the applicant did not attend at the hearing.  In those circumstances the Tribunal proceeded, pursuant to its power under sub-s.426A(1A)(a), to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

6. The Tribunal explained at [13] of its reasons that it was not satisfied of the factual basis for the applicant’s claims given the very limited and undetailed information before it.  The Tribunal did not accept for that reason that the applicant left Malaysia because he was against the government system or because he feared either imprisonment or legal action due to his involvement in the Bersih movement.  It also found in the alternative that, in any event, the movement was not illegal as claimed by the applicant, having regard to the country information before the Tribunal.  On the basis of those conclusions the Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the decision under review. 

Consideration

1. In his application for review of the Tribunal’s decision the applicant raises two grounds as set out below:

   1.  The Administrative Appeals Tribunal did not do their job responsibly. Because I did not attend to the hearing then I try to make another appointment, before I do that they just rejected my application. It is hard to believe that they did a detailed consideration of my case. Also they claimed that they are short of details about the movement just because of the absence of hearing, but they need to have more work to do from the outside information as well, not limited to my statement. Again, they should reschedule the time of hearing time and have a further discussion about my case.

   2.  Based on the evidence, all they could supply with the conclusion of my case does not have substantial grounds to believe that I suffered the harm, instead of valid and logical reason to prove that. Obviously, AAT need to focus more on the case that they supposed to. Because I am really rely on this to survive in Australia. So I cannot accept the decision from AAT. I need to justify for myself so I will appeal more.

2. The first of these grounds may be broken into two parts.  The first is an allegation that the Tribunal ought to have adjourned the hearing and conducted a further hearing when the applicant did not appear on 9 May 2017.  In my view, there was no such obligation on the Tribunal and its failure to do so was well within the proper exercise of its discretion under sub-s.426A(1A)(a) of the Act. 

3. In particular, the following should be noted.  First, it appears that the invitation was properly sent to the applicant at his email address and there is no indication at all that the applicant did not receive that invitation.  Secondly, the applicant did not respond to the invitation and indeed, did not communicate with the Tribunal at all.  For that reason, there was no indication before the Tribunal that the applicant ever intended to attend before it at the hearing and that there may have been some mishap which disenabled him from doing so. 

4. Further, as I have noted, prior to the hearing the applicant was reminded on two occasions of the time and date of the hearing and yet still failed to appear.  Given the complete absence of communication from the applicant, the proper notification pursuant to the provisions of the Act and the further communication by text message from the Tribunal, it was open, in my view, for the Tribunal to proceed to make a decision without taking any further efforts or action to enable the applicant to appear before it at a hearing.  For that reason, the first part of the first ground is rejected. 

5. The second part of the first ground may be seen to be an assertion that the Tribunal did not, but ought to have, made further inquiries.  In my view this ground too ought to be rejected.  It may be in certain circumstances that there is jurisdictional error where the Tribunal fails to exercise its power to obtain information not provided by an applicant. In Minister for Immigration & Citizenship vSZIAI (2009) 83 ALJR 1123, it was found that the failure to make an obvious inquiry about a critical fact might have sufficient connection to the exercise of power as to warrant the conclusion that the Tribunal fell into jurisdictional error.

6. Here there was no obvious inquiry that the Tribunal could have made. The Tribunal invited the applicant to attend a hearing to give evidence about the issues that arose upon the review of the delegate’s decision.  The fact that the applicant did not avail himself of that opportunity is not something that infects the Tribunal’s decision with error.  For those reasons, the second part of the first ground is rejected.  Ground one is rejected.

7. The second ground can be read in two ways.  The first, which is put forward by the Minister, is that the applicant simply disagrees with the findings made by the Tribunal.  In other words, that it was an impermissible attack on the merits of the Tribunal’s decision.  I accept that the ground can be read in that way.  Such an attack is impermissible because the jurisdiction of this Court does not allow it to make findings of fact which are different to those made by the Tribunal. 

8. The Tribunal’s duty and power was to determine whether it was satisfied that the criteria for the grant of a visa were met.  The Court does not have that power or duty.  The Court’s duty is to determine whether the Tribunal exercised its power and duty on a proper understanding of the law, having afforded procedural fairness and acting reasonably on the basis of the material before it.  An attack on the merits so called does not address any of the issues within the jurisdiction of this Court. 

9. The other way in which the second ground can be understood is that the findings of the Tribunal and its ultimate conclusion were not based upon logical reasons or inferences based on the material before the Tribunal.  If accepted, that would establish jurisdictional error:  Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611. However, in my view, there was no such error in this case.

10. As I summarised above, the Tribunal’s reasons for its findings was the limited and undetailed information before it.  That information was in effect limited to the claims made within the application for a visa itself.  There was no corroborating material.  There was no oral or other evidence given by the applicant to support the bare claims made by him.  On that basis, it was open to the Tribunal not to accept the bare assertions made by the applicant, and thus its primary basis for the decision was available to it on a proper understanding of the law, acting reasonably and having given the applicant the opportunity to give evidence and to make submissions in support of his claims.  For those reasons the second ground is rejected.

Conclusion

1. I am not satisfied that the Tribunal’s decision is affected by jurisdictional error and the application must be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     15 August 2018