CJK16 v Minister for Immigration
[2018] FCCA 2571
•4 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJK16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2571 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – where Applicant claims to fear harm from moneylenders – non-disclosure of s.438 of the Act certificate – no practical unfairness demonstrated – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12 Migration Act 1958 (Cth), ss.5H, 36, 438 |
| Cases cited: Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 Stead v State Government Insurance Commission (1986) 161 CLR 141 |
| First Applicant: | CJK16 |
| Second Applicant: | EVM18 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1823 of 2016 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 4 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 4 September 2018 |
REPRESENTATION
| The First Applicant: | In Person |
| The Second Applicant: Solicitor acting as Counsel for the First Respondent: | No appearance Ms He |
| Solicitors for the First Respondent: | Mills Oakley |
ORDERS
The application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $6,300.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1823 of 2016
| CJK16 |
First Applicant
EVM18
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
These proceedings commenced some considerable time ago, namely 25 August 2016, upon the First Applicant (‘the Applicant’) filing an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 4 August 2016, which affirmed the decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicants protection (Class XA) visas (‘the visa’). The First Respondent filed a response on 1 September 2016 seeking that the proceedings be dismissed and that the Applicants pay the First Respondent’s costs in a fixed amount.
On 8 November 2017, there was leave granted to the Applicant to file an amended application. On that day the matter was to have proceeded to final hearing, but an interpreter in the Malay language was not able to be found, and the matter was required to be adjourned to a date dependent upon the availability of a Malay interpreter. Thereafter there was a further attempt to hear the proceedings on a final basis. Again, there were difficulties in obtaining a Malay interpreter.
Finally, the matter proceeded this day. The Applicant relied upon her amended application filed 8 November 2017. The single ground of application is as follows:-
“1. The decision of the Second Respondent was affected by jurisdictional error, by failing to find that a purported section 438 certificate was invalid and that the consequent failure to put the material purportedly covered by the certificate to the applicant for comment constituted a denial of procedural fairness.
Particulars
a) The certificate purportedly issued under section 438 stated that “the disclosure of this information would be contrary to the public interest because the aforementioned folios contained information relating to an internal working document and business affairs.”
b) Neither internal working documents nor business affairs constitute a claim to public interest immunity. A claim to public interest immunity must be based on the contention that the disclosure of some document, matter, information etc. would harm the functioning of government in some way.
c) The certification in the purported s 438 certificate did not relate to a matter permitted under section 438(1), with the result that it was invalid.
d) The non-disclosure of material before the Tribunal constituted a denial of procedural fairness, because the applicant could not comment on either:
a. The validity of the certificate; and/or
b. Make submissions on the exercise of the Tribunal’s discretion under section 428(3), being whether to disclose the material the subject of the certificate.”
There is before the Court the evidence as contained in the Court Book filed 27 January 2017. The First Respondent relied upon affidavit evidence of Ms Siran Jennifer Nyabally affirmed on 19 October 2016 and the annexures exhibited thereto. The First Respondent also relied upon submissions filed by the First Respondent on 1 November 2017. The Applicant failed to file written submissions, but was given an opportunity this day to make oral submissions to the Court. The Applicant sought to put before the Court a document or documents from a psychiatrist or psychologist (as described by her) which went to her current, claimed depression issues. This material was not before the Tribunal. Accordingly, the Court determined the Applicant could not rely upon these documents in the judicial review application.
Background
The Applicant and her brother are citizens of Malaysia. The Applicant arrived in Australia on 19 May 2015 on a tourist visa. The Second-named Applicant, the Applicant’s brother, arrived on 19 October 2015 on a tourist visa. The application for the visas (for both the First and Second named Applicants) was lodged on 7 July 2015. The Applicant lodged the application, including her brother as a dependant member of the Applicant’s family unit. At the first Tribunal hearing on 19 June 2016 the Applicant indicated that whilst she lived in Melbourne, her brother lived in Brisbane and was working to support himself. That being the case, as set out in paragraph 10 of the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’), the Tribunal was not satisfied that the Applicant and the Second-named Applicant were usually resident in the same household, or that the Second-named Applicant was dependent on the Applicant. For those reasons the Tribunal found the Second-named Applicant not to meet the requirements as a member of the same family unit as the Applicant. The Second-named Applicant was, therefore, not in a position to be granted a protection visa unless he himself faced a real chance of serious or significant harm and met additional criteria in his own right. The Tribunal thus indicated to the Applicant when she appeared before the Tribunal on 29 June 2016, that the Tribunal would convene a second hearing to enable exploration of the Second-named Applicant’s claims. A further hearing of the Tribunal was convened on 2 August 2016 by video link between Brisbane and Melbourne. At that hearing, whilst the Applicant appeared, the Second-named Applicant did not. The Applicant indicated at that time that the Second-named Applicant had returned to Malaysia on approximately 20 July 2016.
The Applicant’s claims
The Applicant claimed to fear harm in Malaysia from money-lenders because she had borrowed approximately MYR 400,000 from them at high interest rates to start a business with a friend. The Applicant was the guarantor for the loan and was unable to repay the loan after her friend absconded with the money to repay it. The Applicant tried to borrow money from her parents and friends, but they did not have enough money to help her. The Applicant claimed she then received death threats and was beaten by the debt collectors because she was unable to repay the loan. The debt collectors forbade her from making a police report, damaged her car, splashed her office with red paint and put out dog carcasses as a sign to demand repayment. The Applicant saw money-lenders each day at her home or office and was followed by an “unknown” person which made her feel insecure all the time. The Applicant also claimed the money-lenders had threatened to kill her family; that she went to “another place” but that the money-lenders still found her. The Second Applicant at the time of the visa application being lodged did not raise his own claims for protection, but noted that his claims were “the same as my sister case/problem”.
On 4 April 2016, the delegate made a decision to refuse to grant the visas. The delegate found on the basis of its assessment of the Applicant’s claims and evidence, and relevant country information, that the Applicant was not a refugee as defined in s.5H of the Migration Act 1958 (Cth) (‘the Act’) and that the Malaysian authorities would provide the Applicant with a reasonable level of protection. The delegate accepted for the purposes of its assessment that the Second-named Applicant was a member of the Applicant’s family unit, but found that as the First Applicant was not a person in respect of whom Australia had protection obligations, the Second-named Applicant did not satisfy s.36(2)(b) or s.36(2)(c) of the Act.
Tribunal proceedings
On 7 April 2016, the Applicants applied to the Tribunal for a review of the delegate’s decision. The Applicants provided the Tribunal with a copy of the delegate’s decision record and notification letter with the application for review.
On 30 May 2016, the Applicants were invited to attend a hearing on 29 June 2016. On 27 June 2016, the Applicant telephoned the Tribunal to inform the Tribunal that she had moved to Victoria and did not know where to attend the hearing. The same day the Tribunal wrote to the Applicant to provide details of the hearing to be conducted by video link between Sydney and Melbourne. A completed hearing response form was received by the Tribunal the following day.
The Applicant appeared before the Tribunal on 29 June 2016, and on 2 August 2016. The Applicant appeared with the assistance of a Malay interpreter.
On 28 July 2016, the Applicant provided the Tribunal with a translated police report from the Royal Malaysian Police made by the Applicant’s father.
The Tribunal Decision
On 4 August 2016, the Tribunal affirmed the delegate’s decision. The Tribunal accepted the Applicants were nationals of Malaysia, but found the Applicant was not a witness of truth and rejected her claims to fear harm, on the basis of adverse credibility findings.
As set out in paragraph 34 of the Decision Record, the Tribunal considered that:-
“…the applicant has displayed an extremely cursory understanding of the details of the loan, or details of the business that the applicant was investing in, for which the loan was to be utilised. The Tribunal considers that the lack of detail is undermining of the credibility of the applicant’s claims of organising and acting as guarantor for the loan, or buying or investing in the business.”
The Applicant was unable to tell the Tribunal the amount of capital her business partner put into the business, nor did the Applicant have any knowledge of the interest rate on the loan. As set out in paragraph 32 of the Decision Record:-
“The Tribunal expressed surprise to the applicant that she would take out a loan of such an amount without having a clear idea of the details of the business venture.”
The Tribunal found that the Applicant’s evidence that the weekly repayment of the loan was MYR 2000 did not make sense in the context of her evidence as to the monthly income of the business, which was MYR 4000 to 5000. The Tribunal found given that the 4000 to 5000 MYR took no account of expenses and thus the business had no prospect of repaying an amount of approximately MYR 8000 per month, undermined the credibility of the Applicant’s claims concerning the loan.
Additionally, the Tribunal found that the Applicant provided inconsistent information concerning the documents relating to the loan. The Tribunal stated that the Applicant initially said these were in the possession of her business partner and not available, but later claimed that she had the documents but that they were back in Malaysia. When the Tribunal pointed out to the Applicant the inconsistency in relation to this evidence, the Applicant provided a further and differing answer. As set out in paragraph 36 of the Decision Record the Tribunal considered:-
“…that the evidence on this issue has been directly inconsistent, and does not accept the applicant’s explanation given her clear initial statement that she did not have loan documents or access to them.”
The Tribunal also observed that the Applicant’s evidence as to the identity of the money-lender was unsatisfactory in circumstances where the Applicant initially stated she did not know the name of the money-lender, but later gave evidence that “the person’s name was Jack.”[1]
[1] Decision Record dated 4 August 2016, 38.
The Tribunal found, as set out in paragraph 38 of the Decision Record:-
“…the applicant’s inability initially to provide the name of the moneylender as troubling in relation to her credibility. This is reinforced by the applicant’s later evidence in the hearing of numerous conversations by telephone with both Jack and his staff, together face-to-face meetings which would indicating [sic] frequent contact, making it unlikely that the applicant would be unable to initially recall the name of the person that she had been dealing with.”
The Tribunal additionally set out in the Decision Record that in the first Tribunal hearing the Applicant failed to mention key claims of harm from the money-lenders as set out in the Applicant’s written statement, including being physically assaulted on multiple occasions, her car being damaged and the carcass of a dog being left. The Tribunal considered that had those events occurred they would have been mentioned by the Applicant in the Tribunal hearing. The Tribunal acknowledged that the Applicant claimed at the hearing that her arm was grabbed at the airport, but found that was not the same as her written claims to have been physically assaulted on multiple occasions. The Tribunal also indicated that the Applicant’s claim that her father had the window of his car damaged by money-lenders in an incident where the money-lenders had knives seemed at odds with the police report provided to the Tribunal dated September 2015. The Tribunal considered that had there been a specific event, where the Applicant’s father’s car was damaged, and the perpetrators were armed with knives, it would have been an event that would be specifically mentioned in the police report in addition to more general claims as to difficulties faced from money-lenders. The fact that it was not mentioned in the police report “is undermining as to the truth of the claimed event”.[2]
[2] Ibid 44.
As a further deficiency, the Tribunal did not consider it plausible, as set out in paragraph 45 of the Decision Record, that the Applicant’s brother would have returned to Malaysia if there was a real chance of serious or significant harm to him along with the family from the money-lenders.
The Tribunal said, relevantly, in paragraph 46 of the Decision Record:-
“The cumulative impact of the … deficiencies in the evidence are significantly damaging to the credibility of the applicant’s claims. They cause the Tribunal to not be satisfied as to any substantive aspect of the applicant’s claims.”
Having rejected each and every one of the Applicant’s claims, the Tribunal did not accept there was a real chance the Applicant would suffer serious or significant harm for any of the reasons claimed or for any other reasons. Under the refugee criterion, the Tribunal was not satisfied the Applicants had a well-founded fear of persecution for a refugee criterion reason for any of the reasons claimed or for any other reasons. In relation to the complementary protection criterion, the Tribunal was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicants being removed from Australia to Malaysia there was a real risk that they would suffer significant harm.
Non-Disclosure of the Certificate issued under s.438 of the Act
On 12 April 2016, the Department of Immigration and Border Protection (‘the Department’) issued a non-disclosure certificate under s.438 of the Act, which was stated to cover information in “Folios 41, 80, 88 of file number CLF2015/40350”, because “the aforementioned folios contained information relating to an internal working document and business affairs”.
On 20 October 2017, the First Respondent filed and served the affidavit of Ms Nyabally and relied upon that affidavit evidence at hearing. The affidavit annexed the documents, the subject of the non-disclosure certificate. Folios 41 and 80 were also indexed and reproduced in full in the Court Book filed by the First Respondent.
The Court observes that folios 41 and 80 consist of an identification test check list confirming the integrity of the personal identifiers provided by the Applicant. Folio 88 is an internal departmental disclosure check list compiled prior to the file being transferred to the Tribunal. None of these folios, being the material behind the s.438 of the Act certificate, were relevant to the matters in dispute before the Tribunal.
The Tribunal did not disclose the existence of the non-disclosure certificate or the documents, the subject of the certificate, to the Applicant. However, that did not give rise to jurisdictional error because the material behind the certificate was not relevant to the matters in dispute.
The Tribunal accepted the Applicant’s identity and citizenship was genuine. As submitted by the First Respondent, there is thus no factual or legal issue in these proceedings arising from the s.438 of the Act certificate, and the relevant documents to which it relates, because underlying information concerning the identity of the Applicants was not in dispute.[3]
[3] SZVDC v Minister for Immigration and Border Protection [2016] FCA 1382, 38.
There was no practical injustice that would found a breach of procedural fairness in the circumstances of this matter.[4]
[4] Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40.
There was no denial of procedural fairness to the Applicants in circumstances where no practical unfairness is demonstrated.[5] There is no basis to infer that the Tribunal acted upon the certificate in some impermissible way such that jurisdictional error such as that described in the Minister for Immigration and Border Protection v Singh [2016] FCAFC 183 occurred.
[5] VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459, 30; Stead v State Government Insurance Commission (1986) 161 CLR 141.
No jurisdictional error attends the decision of the Tribunal and the application shall be refused, with costs being awarded to the First Respondent.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 18 September 2018
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