CKS15 v Minister for Immigration and Border Protection
[2017] FCA 583
•25 May 2017
FEDERAL COURT OF AUSTRALIA
CKS15 v Minister for Immigration and Border Protection [2017] FCA 583
Appeal from: CKS15 v Minister for Immigration & Anor [2017] FCCA 113 File number: VID 77 of 2017 Judge: NORTH J Date of judgment: 25 May 2017 Date of hearing: 25 May 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 16 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr C Tran Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent did not appear. ORDERS
VID 77 of 2017 BETWEEN: CKS15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
25 MAY 2017
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NORTH J:
Before the Court is an appeal from orders made by the Federal Circuit Court on 25 January 2017. The Federal Circuit Court dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) given on 12 November 2015. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellant a protection visa.
The appellant is a citizen of Malaysia of Chinese ethnicity, and a Buddhist by religion. He first arrived in Australia in February 2010 under a different name, and his presence in Australia became unlawful on 19 May 2010. He was detained on 17 July 2012, requested removal from Australia and departed on 6 August 2012. He did not apply for a protection visa whilst in Australia in 2010 to 2012. Upon arrival in Malaysia, the applicant changed his name to his current name, then applied for a visa in that name and travelled to Australia on 23 November 2012. That visa expired on 23 February 2013. The appellant remained in Australia unlawfully but on 22 January 2015 he applied for a protection visa.
He appeared before the Tribunal on the hearing of the review application on 21 October 2015 and was assisted by an interpreter.
The claim before the Tribunal was that the appellant had difficulties with local gangsters when he refused to pay them money. Importantly, these events occurred in 2009. The Tribunal first determined the issue whether the appellant had a claim under s 5J of the Migration Act 1958 (Cth) (the Act) on the ground that he had a well-founded fear of persecution on any of the grounds stated, namely, race, religion, nationality, political opinion or membership of a particular social group. The Tribunal held that the claims made by the appellant did not fall within any of those categories, and consequently, the appellant was not eligible for a protection visa under s 36(2a) of the Act.
The Tribunal then considered whether the appellant qualified for complementary protection under s 36(2)(aa) of the Act. The Tribunal held that there were not substantial grounds for believing as a necessary and foreseeable consequence of being removed from Australia that there was a real risk that the appellant would suffer significant harm. The Tribunal gave reasons for this decision.
The Tribunal said that the appellant did not request protection when he first arrived in Australia. The Tribunal did not accept the appellant’s explanation that he was not aware of the opportunity to do so at that time. Furthermore, the Tribunal found that the appellant remained in Australia from November 2012 until January 2015 without making an application for a protection visa.
The Tribunal also said that the appellant had not been honest in providing information to the Department. In the application for a protection visa, the appellant indicated that he had not been to Australia before, and the Tribunal did not accept his explanation that he had been thinking of his current circumstances.
The Tribunal did not accept that the appellant had to close down his business in Malaysia because there had been no reference in the application to any business of his own, but rather, a business of his father.
The Tribunal accepted that it was plausible that there were gangsters seeking protection money, but noted that the incident in question occurred in 2009. Given the passage of time, the Tribunal did not accept that there was any ongoing danger to the appellant. There was no claim that the gangsters had created problems since then for his family business.
The Tribunal concluded at [19]:
Given the Tribunal’s significant concerns with the evidence of the applicant, the Tribunal does not accept that the applicant’s evidence as [sic] truthful. The Tribunal considers the applicant has concocted or embellished certain claims to seek to remain in Australia. His claims as to requiring protection now, are not true. It follows that the Tribunal finds the applicant does not have a real risk of significant harm on return to Malaysia.
The appellant then applied for judicial review in the Federal Circuit Court. The grounds of the application were noted in the Federal Circuit Court’s reasons for judgment as follows:
2. The grounds of the application are as follows:-
For my refusal of protection visa refusal, I kindly seeking review due to my lack of English lang. uage, [sic] I was unable to express my concerns and did not provide evidence.
3.The Applicant further claimed in his application that he “could not getting [sic] supporting docs. from Malaysia”.
The Federal Circuit Court determined the application as follows:
15.The Applicant does not raise any proper grounds of judicial review nor any particularisation of those matters. The Applicant was assisted by a Mandarin and English speaking interpreter at the hearing before the Tribunal. There is nothing in the Tribunal's decision which indicates that the Applicant was not given a fair hearing. The Tribunal complied with its obligations under Division 4 Part 7 of the Act.
16. The Applicant's claim that he could not get supporting documents at the time of the Tribunal's hearing is without merit. The Applicant has not indicated the nature of the documents he was intending to obtain and there is nothing in the Tribunal's decision which indicates that the Applicant had requested further time to provide documentary evidence in support of his claims for protection. The application for the visa was lodged in January 2015. As submitted by Counsel for the First Respondent, the Applicant had ample time to obtain any evidence which he may have wished to obtain in support of his application.
17. The Tribunal made adverse credibility findings about evidence relating to the Applicant's claims for protection. As submitted by Counsel for the First Respondent, a finding as to credibility is a finding of fact and is sound if based on rational grounds after consideration of matters logically probative of the issue of credibility.
18. The Tribunal's findings of fact were open to it on the available evidence and material before it and were not unreasonable, illogical or irrational. No jurisdictional error attends the decision and the application will accordingly be dismissed with costs.
On 6 February 2017 the appellant filed a notice of appeal in this Court. The grounds of appeal are as follows:
There exists wrong application of law.
The risk that the appellant will be harmed by gangsters if h [sic] returns to Malaysia is not properly considered.
Although the Tribunal was aware that it is plausible that gangsters ask for protection fee in Malaysia, it still believe that he [sic] appellant will not face a real risk of significant harm from the gangsters even if he continues to do business.
Tribunal did not put weight to the information which is in favour of the appellant’s claims.
Some reasoning of the Tribunal member is based on assumption rather than substantiated evidence, which, however, was supported by the judge of the Federal Circuit Court.
Therefore, there exists jurisdictional errors.
The appellant appeared on the hearing of the appeal and, when asked to explain the basis of his grounds of appeal, he said that he did not have a chance to speak. However, it became clear that the appellant was directing attention to the interview with the delegate rather than the Tribunal. In relation to the decision of the Tribunal, the appellant said that it was wrong because “my claim is genuine”.
After the difference between the role of the Tribunal in fact finding and errors which would invalidate the decision was explained to the appellant, the appellant made no further oral submission.
The written grounds of appeal are not particularised but, in view of the oral submission, it is likely that the written grounds were intended to contest the merits of the Tribunal decision. The function of finding facts is the function of the Tribunal. Judicial review is not available simply on the basis that the appellant contests the merits of the finding of facts. Consequently, the appeal is dismissed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 25 May 2017
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