CLN15 v Minister for Immigration

[2019] FCCA 1605

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLN15 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1605

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal made an unreasonable conclusion and/or addressed a wrong question – whether the Tribunal brought an independent and impartial mind to the determination of the matter on its merits – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

First Applicant: CLN15

Second Applicant: CLO15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3187 of 2015

Judgment of: Judge Street

Hearing date: 11 June 2019

Date of Last Submission: 11 June 2019

Delivered at: Sydney

Delivered on: 11 June 2019

REPRESENTATION

The First and Second Applicants appeared in person.

Counsel for the First Respondent: Mr G Johnson

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The first and second applicants pay the first respondent’s costs fixed in the amount of $5,900.00.

3. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

DATE OF ORDERS: 11 June 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3187 of 2015

CLN15

First Applicant

CLO15

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 28 October 2015 affirming a decision of the delegate not to grant the applicants Protection (Class XA) visas.

2. The first applicant is a citizen of Malaysia. The second applicant, the first applicant’s partner, is a citizen of Indonesia and was included in the first applicant’s application for a protection visa as a member of the first applicant’s family unit.

3. The first applicant claimed to fear harm, in summary, by reason of his dealings with loan sharks and in circumstances where he could not repay borrowed money.

4. On 23 March 2015, the delegate found that the applicants failed to meet the criteria for the grant of protection visas. On 21 April 2015, the applicants applied to the Tribunal for review of the delegate’s decision. By letter dated 25 September 2015, the applicants were invited to attend a hearing on 27 October 2015. The first applicant appeared at the hearing on that date to give evidence and present arguments with the assistance of an interpreter.

5. The Tribunal, in its reasons, identified the background to the application for review and summarised the relevant law and the applicants’ claims. The Tribunal identified having serious concerns as to the credibility of the first applicant and provided logical and rational reasons in support of its findings that the first applicant’s claims were vague, lacking in detail, inconsistent and contradictory.

6. In particular, the Tribunal took into account the first applicant’s migration history. On 15 April 2007, the first applicant arrived in Australia as the holder of a UD 976 visitor visa which ceased on 15 July 2007. The first applicant did not apply for a protection visa until 24 November 2014. The Tribunal referred to someone who leaves their country and family due to fear of harm as not being consistent with waiting several years to apply for a protection visa, despite having the opportunity to do so.

7. The Tribunal found that the first applicant had given contradictory evidence, including in relation to his work history, and did not accept the first applicant’s explanation for the contradictory evidence.

8. The Tribunal found the first applicant’s evidence to be unconvincing, scant in detail and lacking documentation, such as in relation to any bank loan. The Tribunal found that the first applicant was fabricating the claim of owing money to anyone.

9. The Tribunal also found that the first applicant gave inconsistent evidence in relation to any actual harm experienced by him in Malaysia. The Tribunal referred to the first applicant first saying that he had not been harmed and then saying that he had been harmed. The Tribunal was not satisfied that the first applicant is a credible witness. The Tribunal did not accept any of the first applicant’s claims of fearing harm in Malaysia as being true. The Tribunal found that the first applicant had fabricated the claims so as to advance his protection visa application. The Tribunal did not accept that any of the first applicant’s claims are true.

10. The Tribunal noted that the second applicant made no claims herself but had been included in the first applicant’s application for a protection visa as a member of the first applicant’s family unit.

11. The Tribunal was not satisfied that the applicants are persons in respect to whom Australia has protection obligations. The Tribunal found that the applicants do not meet the criteria under ss 36(2) or 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 23 November 2015. On 21 January 2016, a Registrar of the Court made orders giving the applicants an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicants the nature of the hearing and the applicants confirmed that they understood the nature of the hearing as explained by the Court.

3. From the bar table, the first applicant maintained that he had applied for refugee status and otherwise put no submission to identify any relevant error by the Tribunal. The first applicant confirmed that the second applicant did not wish to put any submissions. Nothing was said from the bar table by the applicants identifying any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1.  AAT is not fair to me and has bias against me.

   2. AAT asked me a lot of irrelevant questions, such as name of Malay States.

   3. AAT is not reasonable for questioning my credibility when I don’t remember that I helped my father with pig farmer when I was only 7 years. This is normal I forget things long time ago.

Ground 1

1. The disagreement by the first applicant in ground 1 as to the fairness of the Tribunal’s decision does not, of itself, identify any relevant error. This is a case where the Tribunal made adverse credibility findings in respect of the first applicant’s claim to fear harm from loan sharks. The adverse credibility findings were open on the material before the Tribunal for the reasons given by the Tribunal. The adverse credibility findings cannot be said to lack an evident and intelligible justification. The applicants’ disagreement with the adverse credibility findings does not identify any relevant error.

2. Insofar as ground 1 refers to an allegation of bias, that is an allegation that must be properly pleaded and proved. No allegation of bias is made out. The adverse findings by the Tribunal are not conduct by reason of which a fair‑minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, although the first applicant asserts that he was asked a lot of irrelevant questions such as the names of Malaysian states, it was open to the Tribunal to explore with the applicant the applicant’s claims and the applicant’s knowledge in relation to his identity. It was also open to the Tribunal to explore the first applicant’s credibility. No irrelevant question has been identified that the first applicant was asked.

2. The asking of questions by the Tribunal in relation to the first applicant’s knowledge and claims is not conduct by reason of which a fair‑minded lay observer might reasonably apprehend the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. On the face of the material before the Court, the Tribunal conducted the review with an open mind reasonably capable of persuasion as to the merits. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the first applicant disagrees with the adverse credibility findings made by the Tribunal and referred to one aspect of the credibility findings in respect of his working as a farmer when he helped his father, which was a long time ago. The adverse credibility findings made by the Tribunal were based on a number of considerations, as summarised above, including the applicants’ substantial delay in applying for protection. Those adverse credibility findings were open to the Tribunal for the reasons given by the Tribunal. No jurisdictional error is made out by ground 3.

2. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street.

Date: 18 July 2019