CKQ16 v Minister for Immigratoin

[2020] FCCA 1581

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKQ16 v MINISTER FOR IMMIGRATOIN & ANOR. [2020] FCCA 1581

Catchwords:
MIGRATION – Protection visa – where the applicant arrived on Electronic Travel Authority visa – where the applicant remained in Australia unlawfully – where the applicant then sought protection – where the applicant did not attend an interview with the Department – where the applicant subsequently attended hearing and substituted new claims for the initial claims for protection – where the Tribunal found the applicant did not present as a ‘witness of truth’ –   application dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth) ss.67-68

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.65, s 474(2), 474(1)(c), 476(2), 476(2)(b)

Migration Regulations 1994 (Cth)

Cases cited:

Craig v South Australia (1995) 184 CLR 163

MIAC v SZQRB [2013] FCAFC 3

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

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151

FCR 214

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185

CLR 259

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant: CKQ16

First Respondent: MINISTER FOR IMMIGRATION , CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1861 of 2016

Judgment of: Judge A. Kelly

Hearing date: 14 May 2020

Date of Last Submission: 14 May 2020

Delivered at: Melbourne

Delivered on: 16 June 2020

REPRESENTATION

Applicant: In person

Advocate for the Respondents:	Ms Mokshi Wickramaarachchi
Solicitors for the Respondents:	Sparke Helmore

ORDERS

1. By consent, pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.

2. The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

3. The application dated 31 August 2016 be dismissed.

4. The applicant pay the costs of the first respondent as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1861 of 2016

CKQ16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application dated 31 August 2016, the applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal) made on 22 August 2016 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection visa (Class XA) visa (visa) pursuant to s 65 of the Migration Act 1958 (Act).

2. The application should be dismissed.  In summary, I consider there is no substance to the contention that the Tribunal did not conduct a proper grant review of the decision.  Nor am I satisfied that there is any merit in the contention that the Tribunal had been “too rigid in applying its policies” or that it “did not have regard to the individual merits and circumstances of the applicant’s case.”  The applicant’s submissions made before me also reinforce me in the correctness of the Tribunal’s conclusion that the applicant was not a credible witness.

Background

1. The background to the application is common ground.

2. The applicant, a male Malaysian citizen aged 31 years, first came to Australia on 25 December 2012 holding an Electronic Travel Authority (ETA) (Class UD, Subclass 976) visa valid for a period of three months.

3. The applicant remained in Australia after his visa had expired as an unlawful citizen for a period of about 18 months.

4. On 12 October 2014, the applicant then applied for a protection visa.  In completing this application, the applicant stated that, in order of preference, he was fluent in his ability to speak, read and write in English and Mandarin and that he could also speak Malay.

5. By a statement attached to his visa application, the applicant claimed that he sought protection by reason of “the terrible things happened to me and my original country and city”.  The statement referred to mental trauma and punishment suffered at the hands of government “because of my family background.  It was an awful life living in this country.”  He described his family as having a political background and that his family home and all personal assets including money land and cars had been confiscated for no reason.  He gave an account of his family being threatened and abused including that “they would burn us to death” and that his family “ended having nothing left”.

6. On 17 October 2014, the applicant was invited by the Department to attend an interview; however, he did not do so.

Delegate’s decision

1. On 12 February 2015, the application was refused.  The delegate found the applicant’s claims not to be vague, limited in detail and not credible, particularly in light of his failure to attend an interview or furnish any further information bearing on his claims.  The delegate found that:

   a)I am unable to establish whether the assets had been confiscated as part of a criminal investigation or charges against the applicant’s family or any other reason.

   b)There is no evidence before me that the applicant’s family had any assets and that they have been confiscated.

   c)despite claiming to threats by the government, the applicant “has provided no details of who the perpetrators were or when and where the claimed events had occurred.

   d)the applicant had been offered the opportunity to attend an interview to discuss his claims and/or provide additional information, but had not done so.

2. The delegate concluded that the applicant’s claims were not credible, and that he was not a person in respect of whom Australia owed protection obligations, either as a refugee under s 36(2)(a) or by way of complementary protection under s 36(2)(aa).

Tribunal’s decision 

1. Following the appointment of a migration agent, on 20 March 2015, the applicant sought a merits review of the decision by the Tribunal.

2. On 24 June 2016, the applicant was invited to attend a hearing before the Tribunal scheduled for 4 August 2016.  At his request, arrangements were made for a Mandarin interpreter to assist him.  Also in attendance at the hearing was the applicant’s migration agent.

3. At this hearing, the applicant abandoned his earlier claims and substituted in their place claims to fear harm on account of gambling debts which, as he claimed, he had incurred to loan sharks.

4. On 22 August 2016, the Tribunal affirmed the decision to refuse the visa, providing a statement of reasons for doing so (Reasons).

5. Having provided a history of the claim and applicable principles, the Tribunal identified the applicant’s original claims which were read to the applicant: [19]. The applicant disavowed those claims and attributed responsibility for the content to his then migration agent suggesting that the agent had said he would “help him remain in Australia . . . and get permanent residence”: [20]. The applicant then proceeded to describe what had been his “real reason” for seeking protection, stating that he had incurred a large gambling debt and was unable to repay it and had been forced by loan sharks to courier drugs into Thailand, which he had refused to do, then fleeing to Australia: [23].

6. Having set out the principles applicable to the approach to be taken by an administrative decision-maker upon issues of credibility, the Tribunal expressed its significant concerns as to the applicant credibility: [32].

7. Relevantly to the matters raised in the application for judicial review, the Tribunal recorded the applicant’s claims that: (a) he had been introduced to gambling where he had accumulated substantial debts in a single night, then gambling continuously at sittings of some six hours duration: [33]-[37]; (b) his debt equated to AUD $88,000: [35]; (c) he was required to repay his debt by trafficking drugs: [39]; (d) the loan sharks would be placing pressure on his family to repay the debt: [40]; (e) his family were urging him to come home but that he could earn more money and wanted to continue “my trips overseas and to visit other countries”: [41]; (f) the interest rate on his gambling debts was high (although he could not state what it was): [43].

8. The Tribunal rejected the applicant’s claims as not being credible, including that his version of the circumstances in which he had incurred the gambling debts had changed: [44]. It considered the applicant’s account of the drug-trafficking repayment scheme to be vague and that the applicant had not been forthcoming including as to the interest rate on his debt. Nor did it accept that the applicant had been allowed to run up a gambling debt of AUD$88,000: [45], [47]. Further, it did not accept applicant’s explanation for his delay in seeking protection: [46].

9. The Tribunal found that the applicant had not presented as a ‘witness of truth’ and that the applicant had concocted the claim that he fled Malaysia because of a gambling debt.

10. The Tribunal concluded that the applicant did not have a well-founded fear of persecution, did not face a real risk of serious harm,[1] and was not owed protection obligations by Australia or complementary obligations and affirmed the decision to refuse the visa application. [48]-[53].

    [1]            MIAC v SZQRB [2013] FCAFC 33.

Procedural history

1. On 31 August 2020, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which he exhibited a copy of the Reasons.  By this affidavit, the applicant deposed that the claims contained in his application had not been written by him and that he could “not recall having made these claims or having these claims put to me when I consulted with my previous migration agent”.  He also claimed that, before the Tribunal his oral evidence had not been considered and he had not been allowed sufficient time to “prepare for my case as well.”

2. On 6 September 2016, a response was filed on behalf of the Minister in which an order was sought for dismissal of the application on the basis that the Tribunal’s decision was not affected by jurisdictional error.

3. On 15 February 2017, orders were made, by consent, listing the matter for final hearing.  Orders were made affording the applicant opportunities to file any amended application, affidavits and submissions, however, those opportunities were not taken.

4. In the circumstances, the submissions filed on behalf of the Minister were responsive to the matters set out in the application.

Judicial review

1. If the Tribunal’s decision was a privative clause decision[2], it is not amenable to judicial review.  A Tribunal decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[3]  In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[4]  Whether it should do so is a separate issue.

   [2] Act, s 474(2).

   [3]Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

   [4] Act, s 476(2).

2. The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made.  The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[5] and, where appropriate, to order that the matter be remitted and reconsidered according to law.

   [5]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

3. The grant or refusal of a visa application turns upon whether an administrative decision-maker is satisfied that the criteria for the grant of the particular visa have been satisfied. A decision upon those matters is a decision upon a jurisdictional fact.[6] By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[7]  Conversely, where the decision-maker is satisfied that the criteria have been met, the application must be granted.

   [6]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ).

   [7]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).

Consideration

1. As the applicant was self-represented before me, I have examined the materials in the court book, the decisions of each of the delegate and Tribunal and the application for judicial review.

2. As the matter was listed for hearing in the late stages of the restrictions imposed as a consequence of the COVID-19 pandemic, the proceeding was listed for hearing by audio and video link.  At the commencement of the hearing the Solicitor Advocate for the Minister indicated her consent to the adoption of that course.  The matter was explained to the applicant via his interpreter.  Although the applicant appeared to answer in English several of the questions which were put to him during the hearing before the interpreter had translated the question, he stated that he would prefer to see how adequate the audio and video link performed.  The applicant was then told to inform the interpreter at any stage if he considered the audio/video link was not functioning adequately.  He was further informed that if he came to that view, the matter would then be adjourned to open court.  On several occasions throughout the course of the hearing I enquired of the applicant whether the audio/video link had been adequate and on each occasion he confirmed that it had been.

3. When receiving submissions from the applicant, the matter proceeded in stages.  In particular, at the outset of the hearing I informed the parties that I would be reserving my decision and they would be notified when a judgment would be given.  On several occasions throughout the initial hearing I asked the applicant whether he had anything further to say.  After hearing what appeared to be the totality of his submissions and receiving the submissions on behalf of the Minister, I adjourned the court.  However, shortly afterwards, I was informed that the applicant wished to make further submissions and, in all the circumstances, I decided that it would be preferable to allow him the opportunity to do so.

4. The applicant’s initial submissions were that he faced a risk of harm to his life because of his gambling debts.  He stated that his initial debts had been in the order of AUD $50 – $60 but that he had become “more and more” indebted to loan sharks for sums of $1,000, $2,000 and $3,000 until “all up I owed them AUD $80,000.”  Asked to clarify how the Tribunal had committed error in its merits review of the delegate’s decision or the conduct of the hearing, the applicant stated that it had failed to record that he had gambled for periods of up to 6 hours and that it had failed to record the extent of his indebtedness.  I reject each of those submissions.  As set out in the Reasons, it is clear each of those matters was identified and addressed in some detail.

5. Upon resuming the hearing, the applicant made the further complaints as follows: (1) the Tribunal was said not to have considered his explanation for the delay in applying for a protection visa.  This was incorrect: [46]; (2) the Tribunal was said not to have considered his evidence as to the interest-rate being charged by the loan sharks.  This is too was incorrect: [43], [45]; (3) the applicant submitted that the suggestion he could earn more money in Australia was to be considered in the context that he could in fact earn even more money if working in Singapore and further submitted that the Singapore dollar would result in him achieving yet higher earnings.  This submission did not seem to be linked to any error in the Tribunal’s decision; (4) next it was said that his parents, who were about to retire, would be selling their land for AUD $40,000 and that, for this reason, he could be wealthy in Malaysia.  As I understood the submission it was to reinforce the veracity of his claim to protection in Australia; however, this too was not an issue raised before the Tribunal; (5) building upon the previous submission, it was then said that even if the applicant was to repay the loan sharks AUD $40,000 this would not discharge his debt including interest.  When asked to clarify why his parents might be inclined to simply give him the proceeds of sale of their home, he then stated, somewhat remarkably, that their home was worth AUD $10 million.  Again, this had not been suggested before the Tribunal; (6) undeterred, the applicant then stated that he may be able to secure AUD $3 million from the sale of some other land owned by his father and uncles; however, he then suggested that “my dad can only get AUD$2 million” with the result that the applicant, as it was said, would only get AUD $400,000; (7) the applicant reiterated that the interest rate on his debt was very high and he wanted to be sure I understood that, as I do.  However, his submission to this court stands in contrast with the findings of the Tribunal that the applicant’s evidence as to the interest-rate had been vague.  In my opinion, the findings of the Tribunal on this issue were clearly open.

6. For completeness, upon being satisfied the applicant had no further submissions which he wished to make in the matter, I confirmed that he had been satisfied that the audio/video link for the hearing had performed to a standard which was to his satisfaction.

7. Before me, the applicant made no submission suggesting that he could not recall having made the claims which were contained in a statement annexed to his protection visa application.  This statement, which took the form of a letter over the applicant’s name and a signature block but was unsigned.  The contents of this statement stand in marked contrast with the applicant submissions to this court in as much as it contained repeated claims that all property, money, land and cars of the applicant’s family had been confiscated, leaving them with nothing.

8. Furthermore, insofar as the applicant’s affidavit contained claims that the Tribunal had not considered his oral evidence or he had not been given sufficient time to prepare his case, he made no submissions to this court upon either of those matters.  Nor, despite being afforded an opportunity to file further evidence was any attempt made to produce a transcript of the hearing be for the Tribunal so as to provide an evidentiary basis for submissions of this kind.  I reject these submissions.

9. The application for review contained two grounds of review.

Ground 1 – inadequate review

1. Ground 1 reads:

   The Tribunal did not conduct a proper review of the decision.

2. Ground 1 is unsupported by any particulars and is liable to be rejected on that basis alone. There is no evidence before the court, nor is it apparent from the Reasons, that the Tribunal did not conduct a proper review of the delegate’s decision or the applicant’s claims for protection.

3. Ground 1 is rejected.

Ground 2 – rigid application of policy

1. Ground 2 reads:

   The Tribunal was too rigid in applying its policies and did not have regard to the individual merits and circumstances of the Applicants’ case at the time of the delegates’ decision.

2. In my view there is no basis for the contention in Ground 2 that the Tribunal had been rigid in applying its policies or that the Tribunal had not considered the individual merits, and circumstances, of the applicant’s case.  Ground 2 impermissibly seeks a merits review of the visa application which this court has no jurisdiction to undertake.  Contrary to the assertion in the applicant’s affidavit, the Tribunal expressly had regard to his oral evidence that the claims in his visa application were not his and it considered and made findings on what the applicant asserted before the Tribunal were his real claims to fear harm: [21]-[22].

1. The Tribunal’s adverse credibility findings were open to it on the available evidence and for the reasons it gave.

2. Ground 2 is rejected.

Conclusion

1. For the reasons above, the application should be dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Associate: 

Date: 16 June 2020