CJN15 v Minister for Immigration

[2016] FCCA 3033

FEDERAL CIRCUIT COURT OF AUSTRALIA

CJN15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3033

Catchwords:
MIGRATION – Review of a decision of the Administrative Appeals Tribunal – application for a Protection (Class XA) visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 36(2)(aa), 425(2)(b), 426A,

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

Applicant: CJN15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2509 of 2015

Judgment of: Judge Hartnett

Hearing date: 21 October 2016

Delivered at: Melbourne

Delivered on: 21 October 2016

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Ms Saunders

Solicitors for the Respondents: DLA Piper

ORDER

1. The application be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2509 of 2016

CJN15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed 11 December 2015 seeking relief in the form of constitutional writs against the decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 28 October 2015.  The Tribunal affirmed a decision by a delegate of the First Respondent not to grant the Applicant a protection (class XA) visa.

Background

1. The Applicant is single, and a Tamil male citizen of Malaysia.  He arrived in Australia in November 2011.  He applied for a protection visa on 28 August 2014.  He claimed to fear discrimination from Malays because he was an ethnic Indian and he claimed to fear harm from a moneylender because he could not repay a personal financial debt.

2. The Applicant failed to attend an interview before the Department of Immigration and Border Protection scheduled on 31 March 2015.  On 2 April 2015 a delegate of the First Respondent (‘the delegate’) made a decision to refuse the grant of the visa.  The delegate noted that, due to the Applicant’s non-attendance at his scheduled interview, he was unable to test the Applicant’s claims.  On the basis of the lack of information provided by the Applicant, the delegate could not be satisfied the Applicant had suffered significant harm in the past or would suffer harm in the reasonably foreseeable future.

3. The Applicant applied to the Refugee Review Tribunal (as it then was) for review of the delegate’s decision on 5 May 2015.

4. The Applicant was invited to attend a hearing before the Tribunal scheduled for 29 October 2015 by letter of 7 October 2015, sent by email to the Applicant’s migration agent as nominated by the Applicant on his application for review, and to the email address provided by the Applicant on his application for review of the delegate’s decision.

5. The “response to hearing invitation” was returned to the Tribunal signed by the Applicant on 19 October 2015. It indicated that neither the Applicant nor his representative would be attending the hearing.  The Applicant did not attend the schedule hearing on 29 October 2015.

6. Pursuant to s.426A of the Migration Act 1958 (Cth) (‘the Act’), the Tribunal decided to make a decision on the review without taking any further action to enable the Applicant to appear before it. It made its decision on 29 October 2015, affirming the decision under review.

7. The Tribunal said in paragraph 9 of its Statement of Decision (‘the Decision Record’) the following:-

   “It is reasonable to believe that someone who feared serious harm and had to flee Malaysia would seek protection in Australia earlier than two and a half years after arriving here, and would be willing and able to provide information about those claims when invited to do so.”

8. The Tribunal considered the Applicant’s written claims to be very brief and lacking in detail.  The Tribunal did not accept the claim of the Applicant regarding a debt to a moneylender, given the Applicant’s delay in applying for a protection visa.  The Tribunal said, at paragraphs 10 and 11 of the Decision Record:-

   “10. While I accept that there is institutionalised discrimination in Malaysia through affirmative action programs for indigenous Malays, the applicant provided no details as the type or level of discrimination he claimed that he faced and I am not satisfied that any discrimination he faced reached anywhere near the threshold of serious harm for Convention purposes.

   11. As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future.”

9. When looking to the complementary protection criterion as set out in section 36(2)(aa) of the Act the Tribunal said:-

   “12. …I do not accept that the applicant owes a money lender an unpaid debt given the lack of evidence to support such a claim or, that any discrimination the applicant faces constitutes significant harm.

   13. I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in section 36(2)(aa).”

Consideration

1. The application before the Court states the following ground:-

   “The Tribunal affirmed the delegate’s decision.  I provided evidence to support the claim that upon my return to my home country I will suffer harm in the hands of the offenders.  I provided evidence to that regard.  The AAT did not consider or take into account the evidence provided by me.  The AAT erred in not giving consideration to the evidence provided by the Applicant.  Accordingly the Tribunal has erred as a matter of law.”

2. The Applicant provides no particularisation of his single ground of application. The only material placed before the Tribunal by the Applicant was the Applicant’s claims as set out in the Applicant’s protection visa application form.  These were clearly considered by the Tribunal as set out in its Decision Record.

3. No issue arises with the Tribunal’s exercise of its discretion under s.426A of the Act. The hearing invitation forwarded by the Tribunal to the Applicant which invited the Applicant to appear before it to give evidence and arguments in support of his application complied with the statutory and regulatory requirements. The Applicant consented to the Tribunal deciding the review without appearing before it and, pursuant to s.425(2)(b) of the Act, the Tribunal was no longer under any obligation to afford the Applicant a hearing opportunity once the response to hearing invitation had been received by it.

4. The Tribunal reached a decision on the evidence before it, that decision being open to the Tribunal on such evidence.

5. This application will be dismissed pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) and costs shall follow that event as set out in the Schedule scale of costs in the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 25 November 2016