CKJ15 v Minister for Immigration
[2016] FCCA 1990
•2 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKJ15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1990 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal Decision – refusal of a protection visa – interlocutory dismissal of a show cause application – no arguable case of jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.426A, 441A, 441C Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: Hossain v Minister for Immigration [2000] FCA Kaur v Minister for Immigration [2014] FCA 915 Minister for Immigration v Lay Lat (2006) 151 FCR 214 Minister for Immigration v Wu Shan Liang and Ors (1996) 185 CLR 259 NAVX v Minister for Immigration [2004] FCAFC 287 Prasad v Minister for Immigration (1985) 6 FCR 155 SZCIJ v Minister for Immigration [2006] FCAFC 62 VNAA v Minister for Immigration [2004] FCAFC 134 |
| Applicant: | CKJ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3108 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 2 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 2 August 2016 |
REPRESENTATION
The applicant appeared in person
| Solicitors for the Respondents: | Mr Keevers of Sparke Helmore |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application filed on 16 November 2015 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the amount of $3416, in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth), as it applied at the time the application was filed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3108 of 2015
| CKJ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Administrative Appeals Tribunal, formerly the Refugee Review Tribunal (Tribunal). The decision was made on 19 October 2015. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The background facts relating to this matter are set out in written submissions filed on behalf of the Minister on 25 July 2016.
Background
The applicant is a citizen of Malaysia and is of the Buddhist faith.[1] He arrived in Australia on 25 December 2012 on a passport issued in his own name and as the holder of a visitor visa, which was valid until 24 March 2013.[2] On 14 July 2014, the applicant lodged an application for a protection visa.[3] That application was refused by the delegate on 4 March 2015, the applicant having failed to attend the interview with the delegate.[4]
[1] Court Book12-13.
[2] Court Book 14, 49.
[3] Court Book 1.
[4] Court Book.45, 52.
On 30 March 2015, the applicant lodged with the Tribunal an application for review of the delegate’s decision.[5] On 30 September 2015, the Tribunal wrote to the applicant inviting him to appear at a hearing before the Tribunal on 19 October 2015 to give evidence and present arguments in relation to the issues arising in his case.[6] The applicant did not respond to the Tribunal’s invitation or appear before the Tribunal at the scheduled time.[7] On 19 October 2015, the Tribunal affirmed the decision under review.[8]
[5] Court Book 28.
[6] Court Book 63.
[7] Court Book 66
[8] Court Book 70.
On 16 November 2015, the applicant filed an application to show cause in this Court.
Applicant’s claims
The applicant’s claims to fear harm were set out in his application for a protection visa.[9] They may be summarised as follows:
a)The applicant left Malaysia because he was persecuted by the Islamic Court for reason of his engaging in a sexual relationship with a Malay Muslim girlfriend, commencing in about 2011. They were not married, which was against Islamic law. His girlfriend’s parents found out about their relationship and reported him to the Islamic Court. The Court tried to force the applicant to marry his girlfriend and convert to Islam. The applicant did not want to become a Muslim.
b)The Islamic Court sent the religious police to arrest the applicant at his house, where they threatened and harassed him. The religious police tried to persuade him to marry his girlfriend but he did not want to convert to Islam because it meant that his children and grandchildren would also have to be Muslim. The religious police also went to the applicant’s workplace to harass his boss and clients. His boss was forced to dismiss him. The applicant was in “big trouble”, so he left Malaysia for Australia. The religious police arrested the applicant’s parents, and other relatives, following his departure.
c)Should the applicant return to Malaysia, he would be put in prison and he would be caned. He would be forced to convert to Islam. As their only son, his parents would never agree to him becoming a Muslim. The government would follow the Islamic Court rulings because Malaysia is a Muslim country with no religious freedom.
[9] Court Book 18-21.
Tribunal decision
By reason of the applicant having failed to appear at the scheduled Tribunal hearing, the Tribunal proceeded to make its decision pursuant to s.426A of the Migration Act 1958 (Cth) (the Migration Act).[10] The Tribunal gave the following reasons for exercising its discretion to proceed under s.426A of the Migration Act:
By letter dated 30 September 2015 the Tribunal advised him that it had considered all the material before it but was unable to make a favourable decision on that information alone and invited him to give oral evidence and present arguments at a hearing on 19 October 2015 at 9:00am. He was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. He did not respond to the letter.
The applicant did not appear before the Tribunal on the day and at the time and place at which he had been scheduled to appear, nor did he contact the Tribunal about the failure to attend. He did not nominate a person to be an authorised recipient for him. The Tribunal finds that the invitation was sent to the last address for service provided in connection with the review. The Tribunal is satisfied that the applicant was offered the opportunity to appear before the Tribunal but that he did not do so. He failed to contact the Tribunal to seek a postponement of the hearing, or to provide any reason why he could not attend at the scheduled time. In these circumstances, and pursuant to S.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
[10] Court Book 72 at [8].
The Tribunal noted that the applicant’s claims were lacking in detail in significant respects and that he had not provided detailed information regarding his claims of past harm.[11] In the absence of further evidence by, or on behalf of, the applicant and on the evidence before it, the Tribunal could not be satisfied as to the applicant’s reason for leaving Malaysia or the reason why he claimed that he could not return to Malaysia.[12]
[11] Court Book 72 at [11].
[12] Court Book 72 at [12].
On the evidence before it, the Tribunal found that it could not be satisfied of any of the applicant’s claims of past harm or of risk of future harm.[13] On this basis, the Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm were he returned to Malaysia.[14] On its same findings of fact, the Tribunal was not satisfied that, as a necessary and foreseeable consequence of the applicant being removed from Malaysia to Australia, there was a real risk that the applicant would suffer significant harm.[15] Accordingly, the Tribunal affirmed the decision under review.
[13] Court Book 72-73 at [13]-[14].
[14] Court Book 73 at [15].
[15] Court Book 73 at [16].
The present proceedings
These proceedings began with a show cause application filed on 16 November 2015. The applicant continues to rely upon that application. There are two grounds in that application:
1.Lack of procedure fairness
2.My application were not fairly assessed by AAT and DIBP
(errors in original)
The application is supported by a short affidavit filed with it, which I received as a submission. In that affidavit, the applicant repeats the assertion of procedural unfairness. The Minister prepared written submissions in accordance with procedural orders made by a registrar.
At the appointed time for today’s show cause hearing, there was no appearance by or on behalf of the applicant. However, before I came on the bench, my deputy associate was successful in contacting the applicant on his nominated mobile telephone number with the assistance of the interpreter. The applicant told me that he had recently changed his address and had not received any reminder of the court hearing. In fact, he had forgotten about it. He sought an adjournment, which I refused. In the light of that refusal, he agreed to a hearing by telephone. I asked the applicant where he was now living, but he could not recall the street address. He undertook to file a notice of change of address. He advised that he changed addresses approximately two weeks ago.
I received into evidence the court book filed on 17 February 2016. The applicant could not recall receiving that court book, but exhibit R1 establishes that it was sent to him at his nominated address for service on 18 February 2016 by courier. The applicant opposed the receipt of the court book into evidence on the basis that he was unprepared. I nevertheless received the court book into evidence. It was apparent that the applicant would not have received the Minister’s submissions either, because they had been sent to his old address within the last two weeks. However, I explained to the applicant the issues in the case as I saw them.
Essentially, the applicant failed before the Tribunal because he did not attend the hearing before the Tribunal to which he was invited. The Tribunal was left with insufficient information to make a favourable decision. It appears that the applicant was properly notified of the Tribunal hearing. In the circumstances, there does not appear to me to have been anything unfair about the process followed by the Tribunal. I invited oral submissions from the applicant, but in the light of my explanation, he did not want to make any. I otherwise agree with the Minister’s submissions.
Ground One
Ground One is read as a complaint that the Tribunal’s decision to proceed to determine the application for review without taking any further action to allow the applicant to appear before it pursuant to s.426A of the Migration Act was procedurally unfair. The requirements of the natural justice hearing rule are exhaustively stated in s.422B of the Migration Act as those sections comprising division 4 of Part 7 of the Migration Act of which s.426A is a part. The Tribunal is only required to comply with the provisions of that division and is not required to afford the applicant common law procedural fairness.[16]
[16] Minister for Immigration v Lay Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration [2006] FCAFC 62.
Section 426A of the Migration Act confers a discretionary power upon the Tribunal.[17] Although the power conferred by s.426A must be exercised reasonably and cannot be exercised capriciously, the election to make a decision on the review is not, by itself, the expression of an unreasonable exercise of the power.[18] There are two conditions to be met for the Tribunal to exercise its discretion pursuant to s.426A of the Migration Act:
a)the applicant must have be invited to appear at a hearing pursuant to s.425 of the Migration Act; and
b)the applicant must have then failed to appear.[19]
[17] AZAFB v Minister for Immigration [2015] FCA 1383 at [19] per North ACJ.
[18] NBBL v Minister for Immigration (2006) 152 FCR 592 per Greenwood J at [20]-[21].
[19] MZZSK v Minister for Immigration & Anor [2014] FCCA 883
By way of email dated 30 September 2015, the Tribunal invited the applicant to appear before it at a hearing on 19 October 2015, pursuant to s.425 of the Migration Act.[20] The hearing invitation was sent to the same email address as that which was specified by the applicant in his review application.[21] The hearing invitation complied with s.425A of the Migration Act, and was given to the applicant in accordance with the method prescribed in s.441A(5)(b) of the Migration Act.
[20] Court Book p.64.
[21] Court Book pp.59, 63-65.
Pursuant to s.441C(5) of the Migration Act, the applicant was deemed to have received that email at the end of the day on 30 September 2015. The fact that the applicant may not have been actually aware of the invitation does not displace the deemed-receipt provisions in s.441C of the Migration Act (although no such claim has been advanced in this case).[22] The applicant having been properly invited to appear at the Tribunal hearing, the first precondition for the exercise of the discretion had been met. In respect of the second precondition, the failure by the applicant to physically present before the Tribunal was sufficient to satisfy this precondition for the exercise of the Tribunal’s discretion.[23]
[22] VNAA v Minister for Immigration [2004] FCAFC 134 at [15] per Sundberg, Hely and Gyles JJ.
[23] Hossain v Minister for Immigration [2000] FCA 842 at [19] per Mansfield J.
Turning to the question of whether the Tribunal exercised its discretion under s.426A of the Migration Act reasonably, having sent an invitation in accordance with s.441A of the Migration Act, the Tribunal was under no general obligation to “chase up” the applicant to attend the hearing.[24]
[24] Minister for Immigration v SZFHC [2006] FCAFC 73; (2006) 150 FCR 439 at [38]-[39] per Spender, French and Cowdroy JJ; SZHVM v Minister for Immigration [2008] FCA 600 at [59] per Middleton J.
The circumstances of this matter are far removed from those in which the Federal Court has held that the Tribunal acted unreasonably in deciding to exercise its discretion to proceed in the absence of the applicant without giving the applicant a further opportunity to appear.[25]
[25] See AZAFB v Minister for Immigration [2015] FCA 1383; Kaur v Minister for Immigration [2014] FCA 915.
In any event, the Tribunal gave reasons for exercising its discretion which give an evident, transparent and intelligible justification for the Tribunal proceeding to exercise its discretion pursuant to s.426A of the Migration Act. Further, there is nothing on the face of the Tribunal’s decision record to suggest that the Tribunal’s decision to exercise its discretion was arbitrary, capricious, without common sense or plainly unjust.[26] While “reasonable minds may reach different conclusions about the correct and preferable decision”, the Tribunal’s decision to exercise its discretion under s.426A was within the “area of decisional freedom.”[27]
[26] Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 at [28], Minister for Immigration v Singh [2014] FCAFC 1 at [44].
[27] Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 at [28].
For these reasons the exercise by the Tribunal of its discretion pursuant to s.426A of the Migration Act was not unreasonable or otherwise procedurally unfair to the applicant.
Ground Two
By Ground Two, the applicant contends that the Tribunal did not fairly consider his claims for protection.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant, nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out.[28] The Tribunal noted that the applicant’s claims were lacking in detail in significant respects and that he had not provided detailed information regarding particular allegations that he had made.[29] The Tribunal understood the applicant’s claims, having clearly set out each integer thereof.[30] However, the Tribunal found that there was insufficient evidence before it to satisfy it of the applicant’s claims. That finding was open to the Tribunal on the evidence and materials before it and for the reasons it gave.
[28] Randhawa v Minister for Immigration (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration (1985) 6 FCR 155 at 169-70 per Wilcox J; Selvadurai v Minister for Immigration (1994) 34 ALD 347, 348 per Heerey J.
[29] Court Book 72 at [11].
[30] Court Book 73 at [13].
In circumstances where the Tribunal has written to an applicant indicating that there is insufficient evidence before the Tribunal on which it may make a finding, has invited the applicant to attend a hearing before the Tribunal and where the applicant did not attend the hearing, the Tribunal’s rejection of an application on the basis of insufficient evidence of the claims being put is a natural consequence of the applicant’s non-attendance.[31]
[31] S146 of 2003 v Minister of Immigration [2006] FCA 502; SZDXC v Minister for Immigration [2005] FCA 1306; NAVX v Minister for Immigration [2004] FCAFC 287 at [5].
It follows that, Ground Two does not identify any jurisdictional error on the part of the Tribunal and is, in essence, a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake.[32]
[32] Minister for Immigration v Wu Shan Liang and Ors (1996) 185 CLR 259, 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The applicant has failed to establish an arguable case of jurisdictional error by the tribunal. The application will there be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court’s scale. The applicant did not wish to be heard on costs. The prescribed amount at the time the application was filed was $3,416. I will award costs in that amount.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 11 August 2016
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