CNH19 v Minister for Immigration, Citizenship & Multicultural Affairs

[2022] FedCFamC2G 878

Federal Circuit and Family Court of Australia

(DIVISION 2)

CNH19 V Minister for Immigration, Citizenship & Multicultural Affairs [2022] FedCFamC2G 878

File number(s):	ADG 232 of 2019
Judgment of:	JUDGE BROWN
Date of judgment:	7 October 2022
Catchwords:	MIGRATION – Judicial review of Administrative Appeals Tribunal decision – protection visa – citizen of Malaysia – no appearance by applicant – application to proceed on undefended basis – application of the rules – assessment of case – applicant asserts he participated in political demonstrations in Malaysia – respondents asserts applicant had manufactured his evidence as records indicate he was in Australia at time of said demonstration – matter listed for final hearing – no jurisdictional error established – application dismissed with costs
Legislation:	Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 13.04, 13.05, 13.06
Division:	Division 2 General Federal Law
Number of paragraphs:	30
Date of hearing:	7 October 2022
Place:	Adelaide
Applicant:	No appearance
Counsel for the First Respondent:	Ms Calabrese
Solicitor for the First Respondent:	The Australian Government Solicitor
Solicitor for the Second Respondent:	Submitting notice filed save as to costs

ORDERS

ADG 232 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CNH19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE BROWN
DATE OF ORDER:	7 OCTOBER 2022

THE COURT ORDERS THAT:

1.The application filed 27 June 2019 is dismissed pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) 2021.

2.The applicant pay the first respondent’s costs in the sum of FOUR THOUSAND DOLLARS ($4,000.00).

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE BROWN

1. These reasons for judgment are being delivered orally in the absence of the applicant concerned immediately following the hearing scheduled for the hearing of his application. 

2. Today, I am dealing with an application for judicial review of a decision of the Administrative Appeals Tribunal,[1] which was made on 31 May 2019 and which was subsequently confirmed in a written statement later published on 25 June 2019.  In that decision the Tribunal affirmed an earlier decision of the delegate of the Minister for Immigration and Border Protection[2] not to grant the applicant a protection visa. 

   [1] Hereinafter referred to as “the Tribunal”.

   [2] Hereinafter referred to as “ministerial delegate or delegate”.

3. By way of background, the applicant is a citizen of Malaysia, who arrived in Australia on 18 July 2016, pursuant to a validly issued electronic travel authority.  On 24 August 2016, the applicant applied for the relevant protection visa.  In so doing, he completed a pro forma document in which he outlined why he claimed to be in need of Australia’s protection. 

4. Essentially, he claimed that he had been involved in demonstrations against the Malaysian Government because of an economic crisis in that country, one of the aspects of those demonstrations being that the relevant protestors wore yellow shirts which rendered them readily identifiable.

5. It is the applicant’s contention that he fears, if he returns to Malaysia, he will be arrested and imprisoned because he took part in those demonstrations.  Accordingly, he claims to be at risk of suffering persecution on account of his political views, if returned to Malaysia and on this basis he seeks protection in Australia. 

6. The applicant conceded that he had not been personally harmed whilst living in Malaysia.  As such, his concerns are prospective in nature.  On 20 January 2017 the ministerial delegate refused the visa, and as a consequence on 8 February 2017 the applicant applied to the Tribunal for a review of that decision. 

7. There is no doubt the applicant was invited to appear before the Tribunal and was given an opportunity to put any arguments or provide any evidence as he thought relevant in support of his case.  One significant aspect of the proceedings, before the Tribunal, was that the Tribunal member concerned questioned the applicant regarding his involvement in a particular demonstration, on a designated date, which had involved police violence in dispersing the crowd and the arrest of many demonstrators. 

8. The Tribunal summarised this aspect of the applicant’s evidence and the decision record at paragraph 9 and onwards of its decision as follows:

   You said you joined the protest as part of the graduate group.  You met before the protest, and you decided and talked about what your actions would be.  The protest was large, and it had tens and tens of thousands of people.  You told me that the protest you took part in was in Sabah but that there were simultaneous protests all around the country.  You said you became involved through social media, and you heard of Bersih 5 and the young graduates.  You said it is very difficult for Malaysians to voice their opinions and a protest was one of the ways you could do this. 

   I asked you to tell me about the protest.  You said you were at the front with the leader.  The protest turned violent.  The police got involved and started dispersing the crowd.  People were arrested, but you were lucky, you managed to escape with the leader.  I specifically asked you when the protest occurred.  Your answer was clear; you said “19 November 2016”. As I told you, I do not accept your evidence is truthful.  I do not accept you took part in this protest at all.  I think you have manufactured this evidence. 

   My reasons for making this decision are as follows.  First of all significantly, you were not in Malaysia on 19 November 2016.  You arrived in Australia as the holder of an electronic travel authority visa on 18 July 2016, so it is impossible, implausible for you to be present in Malaysia at the time.  You have not left Australia since you arrived in July 2016. 

   Secondly, you claim that you are on a list and that you are wanted by the authorities, but your evidence was that you managed to escape, you never came to the attention of the authorities.  There were tens of thousands of people, you were just one of them who escaped.  In your claim form at question 91 you said you never experienced harm in Malaysia.[3]

   [3] See Court Book at page 107-108.

9. Accordingly, on the basis of its assessment of the applicant’s evidence, the Tribunal did not accept that the applicant had been truthful about his involvement in political protests in Malaysia.

10. Issues regarding the credibility of applicant are a matter within the sole decision and fact‑making domain of the Tribunal.  It has been said that they are an exercise of merits review par excellence.  As a consequence of its findings regarding the involvement in this demonstration the Tribunal did not accept much of the applicant’s evidence regarding his potentially adverse situation in Malaysia, if returned there. 

11. In addition, the Tribunal had access to country information germane to Malaysia and, in particular that the political situation in that country had significantly changed, since the applicant had left there. 

12. Further, the Tribunal did not accept that there could be any confusion by the applicant in confusing separate demonstrations.  Accordingly, the Tribunal rejected the applicant’s contention that he had been a political activist or had any political profile within that country. 

13. As a consequence of the decision of the AAT, the applicant has sought to have a judicial review of the decision, which was instigated by an application that was filed on 27 June 2019.   Axiomatically, it has taken some time for the matter to proceed to hearing in this Court.

14. In these circumstances, on 1 August 2019 and further on 17 August 2017, the applicant was granted 14 dates prior to the hearing by the Court’s Registrar to file any submissions in support of his application.  The applicant did not avail himself of this opportunity.

15. The applicant, who is not legally qualified, has prepared his own grounds of review.  By necessary implication he seeks an order that the decision of the AAT be quashed and the matter be remitted back to the Tribunal for reconsideration.  In support of his application he asserts as follows:

    When hearing time I was wrongly mentioned to member about the date.

    When fill up the form early I didn’t mention about educational background because thought when hearing I could provide its, but the member can’t accepts.

    In the application before I didn’t write that I’m gay where the LGBT could not accepted in Muslim country like Malaysia. 

16. The applicant has filed an affidavit in support of his application which has, basically, no content and annexes the Tribunal decision.  As I have previously indicated today, the applicant has not appeared today.  It is apparent to me that he has not amended his application or filed any written submissions as directed, and, more significantly, he has not appeared today to argue his application. 

17. Pursuant to the provisions of rule 13.04 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 a party is deemed to be in default if he or she fails to prosecute a proceeding with due diligence or comply with an order of the Court.

18. Thereafter, rule 13.05 authorises the Court to dismiss an application if the relevant applicant is found to be in default.  In the present matter, I am satisfied that by his absence today the applicant is not prosecuting his application with due diligence and, in addition, he has not complied with the order to file submissions. 

19. In addition, rule 13.06 authorises the Court to dismiss an application if an applicant is absent from a hearing.  The first respondent relies on this rule in support of its application to dismiss the proceedings.

20. In those circumstances the Court is entitled to dismiss an application, which is what the Minister submits is appropriate.  I acknowledge that it is a significant thing to deprive an applicant of the opportunity to take part in proceedings, particularly in proceedings concerning a claim for recognition as a refugee. 

21. However, at the same time, principles of case management dictate that cases that are misconceived or have no possible prospects of success should be dismissed.  In these circumstances, I turn to the applicant’s case.

22. I have already summarised the applicant’s grounds for review.  In my view, the grounds are not well drafted and are difficult to follow.  However, it would appear to be the applicant’s position that he made a mistake about the date of the relevant demonstration, in which he was involved, and in these circumstances, it would be unfair to him to allow the decision of the Tribunal to stand.

23. Essentially, the applicant asserts that the Tribunal has made a jurisdictional error in drawing its conclusions about him providing the wrong date of the demonstration, in which he claims to have been involved, to subsequently conclude that he was not truthful about other aspect of his claim.  The implication being that that such a finding is unfair, illogical or unreasonable, to such an extent that it would be inappropriate for the Court to allow the Tribunal determination to stand.

24. I do not accept that is the case.  The Tribunal, in carrying out its functions, was in a position to make findings about the applicant’s credit and, indeed, that was an essential part of the jurisdiction conferred upon it. 

25. In my view, the issue of the date of the demonstration and the level of the applicant’s involvement in it, was fairly put to the applicant, and the conclusion of the Tribunal, in respect of his evidence, in my view, was legally open to it.  It concluded he had manufactured this evidence.  For me to at least substitute my own findings in respect of the issue would be for me to engage in my own merits review, which is not permissible. 

26. The second ground seems to relate to the applicant’s educational background.  A fair reading of the Tribunal’s decision indicates that it did take the applicant through some of his educational qualifications in the context of it reaching a conclusion that the applicant would be able to obtain employment for himself if returned to Malaysia.  Apart, from the credit issue, this was a major theme of the Tribunal’s reasoning.  It concluded that the current situation, in Malaysia would not result in the applicant being subject to persecution.

27. Again, that conclusion seems to me to follow from the jurisdiction conferred on the Tribunal, and for me to reach another conclusion would be for me to engage in merits review which is as indicated above, impermissible. 

28. The third ground relates to a new claim for persecution on the basis of the applicant’s sexuality.  This was a matter which was not raised in his initial application for protection which was determined by the ministerial delegate, nor before the Tribunal itself.  The fact that there is a new claim for protection which has not been raised previously is not of itself a ground for judicial review.

29. Therefore, having analysed the case I am satisfied that there is no jurisdictional error, and it is a weak case, if there is any case at all.  The grounds for review are not well articulated and that of itself is grounds for dismissal.  More significantly, the applicant has failed to prosecute the matter with any diligence nor appear today at the hearing.  So for all those reasons there can only one conclusion, that is, that the application should be dismissed.

30. The first respondent seeks costs.  The normal rule is that costs follow the event.  I am satisfied that an appropriate award of costs is $4,000.00.  For all these reasons, the orders of the Court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Brown.

Associate:

Dated:       25 October 2022