CPM16 v Minister for Immigration

[2017] FCCA 987

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPM16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 987

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal constructively failed to exercise its jurisdiction – whether the Tribunal misconstrued s.36 of the Act – whether the Tribunal failed to comply with s.424A of the Act – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 476

First Applicant:

Second Applicant

CPM16

CPO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2496 of 2016

Judgment of: Judge Street

Hearing date: 15 May 2017

Date of Last Submission: 15 May 2017

Delivered at: Sydney

Delivered on: 15 May 2017

REPRESENTATION

The Applicants appeared in person.

Solicitors for the Respondents:

Mr T Shaw

Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicants pay the First Respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2496 of 2016

CPM16

First Applicant

CPO16
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

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”), with respect to a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 August 2016 affirming a decision of the delegate not to grant the applicants protection visas. The applicants were found to be citizens of Malaysia.

2. The first applicant, father of the second applicant, arrived in Australia with the second applicant on 8 November 2003. Both applicants departed Australia on 14 November 2003. Both applicants arrived again in Australia on 28 December 2008. Both applicants departed Australia again on 27 March 2009.

3. The first applicant arrived back in Australia on 22 October 2009, and the second applicant arrived back in Australia on 4 May 2010. The second applicant departed Australia on 2 August 2010 and arrived back in Australia on 19 August 2010. The second applicant again departed Australia on 12 November 2010 and arrived back in Australia on 2 February 2011. It was not until 4 June 2014 that the first applicant made an application for protection. The second applicant was included as a member of the family unit of the first applicant.

4. On 23 February 2015, the delegate refused to grant protection visas and the applicants sought review before the Tribunal on 23 March 2015.

The Tribunal’s Decision

1. By letter dated 17 June 2016, the applicants were invited to attend a hearing on 14 July 2016 to give evidence and present arguments, and, by letter dated 25 July 2016, the applicants were invited to attend a further adjourned hearing on 1 August 2016, which the applicants attended, to give evidence and present arguments.

Claims for protection

1. The Tribunal identified the relevant law. The first applicant claimed to fear harm if he returned to Malaysia because he would face intimidation, harassment, and physical harm from moneylenders seeking satisfaction of unpaid debts. The first applicant alleged he was in a family limestone business, and that in mid-2007 the business began to suffer, and in early 2008 the applicant and his family opened a Chinese restaurant. The applicant alleges the restaurant was expensive to establish and that the brothers needed a loan to maintain its operations, and although the brothers dealt with financial aspects of the business, it was decided the first applicant would obtain the loan, because he had the connections.

2. At that time there was a financial crisis in Malaysia, causing established banks to reject the first applicant’s mortgage applications. The first applicant was forced to approach private moneylenders and obtained loans at allegedly significant interest rates. The first applicant alleges the debt became unsustainable and the moneylenders began pursuing the first applicant for payment. The first applicant alleged that he and the restaurant faced repeated harassment and threats from moneylenders. The applicant alleged that the moneylenders continued to harass his family in Malaysia and disrupt the restaurant’s activities. The applicant also claimed to fear harm from Malaysian authorities due to his status as a failed asylum seeker.

Findings as to credibility

1. The Tribunal found that the first applicant’s claims suffered from numerous and significant credibility problems. The Tribunal did not believe any substantive aspect of the first applicant’s claims. The Tribunal gave detailed reasons in support of the adverse credibility findings. The Tribunal was not satisfied there were unpaid moneylenders who threatened the first applicant or his family. These findings undermined the factual basis for the first applicant’s claims, and the Tribunal found that neither the first applicant nor the second applicant were owed protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

2. The adverse credibility findings were based in part upon the inconsistency of the first applicant’s evidence with his brother’s evidence. His brother’s evidence was put to him under s.424AA of the Act, and his brother gave a different account of the debts owed in respect of the restaurant and made no reference to private moneylenders. The Tribunal also found inconsistencies with the police records provided by the first applicant and the first applicant’s evidence. The Tribunal also identified the first applicant’s evidence about financial knowledge of the restaurant and dealings with the moneylenders was unconvincing and inconsistent.

3. The Tribunal also found concerning the applicant’s general recollection only of what transpired when he was allegedly taken to see the “boss” in respect of the moneylending. Evidence was also given by the first applicant that his brother had no problems before the first applicant decided to flee to Australia and that this was contradicted by the police reports. Materially, the Tribunal identified that the first applicant resided in Australia for five-and-a-half years before applying for protection. The Tribunal did not accept the first applicant’s explanation that he did not know about the option of applying for a protection visa.

4. The Tribunal found that the applicants were unlikely to face any adverse attention from Malaysian authorities upon their return. The Tribunal considered the documents submitted by the applicant and found the documents were insufficient to overcome the numerous and significant credibility concerns in respect of the applicant.

Proceedings before this Court

1. On 8 December 2016, a Registrar of the Court made Orders providing the applicants with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

Grounds of the application

1. The grounds of  the application are as follows:

   1. The Tribunal constructively failed to exercise its jurisdiction;

   Particular:

   The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant's credit without first assessing whether the substance of the documents corroborated-his claims.

   2. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

   The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon their return to Malaysia.

   3. The second respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

   Particular:

   The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

Submissions from the bar table

1. At the commencement of the hearing, the Court explained to the applicants that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicants. The Court explained, in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair.

2. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal decision was unlawful or unfair, the application would be dismissed. Both applicants confirmed that they understood what was said by the Court in explaining the nature of the hearing.

3. The Court explained that it would have identified the evidence. The Court explained that it would hear submissions from the first applicant and then from the second applicant and then from the solicitor for the first respondent and then from the first applicant in reply and then from the second applicant in reply.

4. From the bar table, the first applicant asserted that everything he had told the Tribunal was true and complained about the adverse credibility findings. The adverse credibility findings by the Tribunal were open on the material before the Tribunal for the reasons given. The reasons were rational and logical. No jurisdictional error is identified by reason of those adverse credibility findings.

5. The first applicant also complained about the Tribunal using his brother’s evidence in relation to the adverse credibility findings. The Tribunal complied with s.424AA in relation to the information provided by the applicant’s brother. Given that it was the applicant and his brother that conducted the alleged business in respect of the borrowings, it was open to the Tribunal to make adverse credibility findings in the circumstances. On the face of the material before the Court, the Tribunal complied with the requirements of s.424AA of the Act in so far as the information provided by the brother enlivened any obligation under s.424A. Further, the Court is not satisfied that the information from the brother was in fact information enlivening an obligation under s.424A. The information from the brother gave rise to inconsistencies in relation to the credibility of the first applicant’s evidence and did not itself negate, deny, or undermine the first applicant’s claims, and was not the reason or a part of the reason for affirming the decision on review.

6. The first applicant also complained that the Tribunal did not go and investigate his claims in relation to the moneylenders. There was no duty upon the Tribunal to engage in steps to investigate the applicant, and there was no readily identifiable credible information from an objective source in respect of which the Tribunal was required to make inquiry.

7. The second applicant also maintained that it was unfair that the Tribunal had used the brother’s information in the adverse credibility findings. Given that the applicant’s claims arose out of the conduct of the business and the alleged moneylending in partnership with his brother, it was open to the Tribunal to take into account the inconsistencies between the brother’s evidence and the first applicant’s evidence. Further, insofar as the inconsistencies were information enlivening an obligation under s.424A, the Tribunal, on the material before the Court, complied with s.424AA.

8. It was not unreasonable for the Tribunal to use the inconsistencies in assessing the first applicant’s credit. On the face of the material before the Court, there was no denial of procedural fairness to the applicants in that regard. Nothing said by the applicants from the bar table identified any jurisdictional error.

Consideration of grounds

Ground 1

1. In relation to ground 1, it is apparent that the Tribunal engaged in an orthodox process in the conduct of its review and provided reasons in support of the adverse credibility findings. It was also a matter for the Tribunal to determine what weight to place on the documents provided by the applicants. For the reasons already given, the adverse credibility findings were open to the Tribunal. This is not a case where it could be said that the Tribunal failed to constructively exercise its jurisdiction. No jurisdictional error is made out by ground 1 of the application.

Ground 2

1. In relation to ground 2, the Tribunal correctly identified the relevant law and made adverse findings consistent with the correct application of that law. No jurisdictional error is made out as alleged in ground 2.

Ground 3

1. In relation to ground 3, the Tribunal identified the information the subject of compliance with s.424AA. No transcript has been tendered in support of the alleged failure to comply with requirements of s.424A or s.424AA, and no information has been identified allegedly enlivening the obligation.

2. On the face of the material before the Court, insofar as the information from the first applicant’s brother was capable of enlivening the obligation under s.424AA, it appears from the Tribunal’s reasons that the Tribunal complied with the requirements of s.424AA in the course of the two hearings. Further, as referred to above, the Court is not satisfied that the information from the brother enlivened an obligation under s.424A as it was not the reason or a part of the reason for affirming the review. No jurisdictional error is made out by ground 3.

Conclusion

1. On the face of the material before the Court, the Tribunal complied with its statutory obligations and the review was conducted in accordance with the dictates of procedural fairness. No jurisdictional error is made out by the application.

2. The application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 8 June 2017