CQF16 v Minister for Immigration

[2018] FCCA 2192

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQF16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2192

Catchwords:
MIGRATION – Applicant arrived in Australia in June 2012 – three year delay in applicant applying for a protection visa – tribunal complied with division 4 of part 7 of the Migration Act – applicant failed to appear at court – application for judicial review considered on merit – application dismissed.

Legislation:

Migration Act 1958, ss.5J, 36(2)(a), 36(2)(aa), 424(3)(a)

Federal Circuit Court Rules 2001, r 13.03C(1)(e)

Cases Cited:

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105
SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62

Applicant: CQF16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 417 of 2016

Judgment of: His Honour Judge Wilson

Hearing date: 2 August 2018

Date of Last Submission: 2 August 2018

Delivered at: Perth

Delivered on: 2 August 2018

REPRESENTATION

Counsel for the Applicant: No appearance

Solicitors for the Applicant: None

Counsel for the First Respondent:

Solicitors for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Sparke Helmore

ORDERS

1. Pursuant to r 13.03C(1)(e) of the Federal Circuit Court Rules this case proceed in relation to the relief claimed.

2. The application filed on 15 September 2016 is dismissed.

3. The applicant pay the first respondent’s costs in the fixed sum of $5 000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 417 of 2016

CQF16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(ex tempore)

Introduction

1. By application filed 15 September 2016, the applicant sought judicial review of a decision of the Administrative Appeals Tribunal made on 19 August 2016.  Pursuant to that decision, the tribunal affirmed a decision of the minister’s delegate to not grant the applicant the protection visa that she sought.

2. In essence, the applicant (a Malaysian citizen) arrived in Australia on 20 June 2012.  She applied for protection on 2 July 2015 after her electronic travel authority ceased on 20 September 2012.  Thereafter, she remained in Australia as an unlawful non-citizen.  The applicant said in her protection application that she and her family were persecuted by the government after they protested against the Department of Transport in relation to the relocation of a Chinese cemetery, as a result of which she fled to Australia.  The minister’s delegate refused to grant the protection visa principally because –

   a)the application lacked detail and she provided no supporting evidence of her claim; and

   b)a three-year delay elapsed between her arrival and when she claimed protection.

3. On a merits review to the tribunal, the tribunal affirmed the delegate’s decision. It was not satisfied that the applicant made out her claim under s 36(2)(a) or under s 36(2)(aa) of the Migration Act (“Act”).

4. In this case the applicant relied on three grounds to support her application.  They were as follows (with errors in the original) –

   (1)A reasonable Tribunal could not use information unfavourable to the applicant’s claims to form an opinion and make decisions on the case without giving the applicant the opportunity to comment on independent country information.

   Particulars

   Although the country information does not relate to the applicant personally or other specific individuals, it consists of general comments about corruption and persecution against protestors in Malaysia.  The Tribunal had acted in excess of jurisdiction and had erred in fairness and administrative procedure.  Although the applicant was present at the hearing, the independent evidence used in the Tribunal’s decision was not brought to the applicant’s attention for comments.

   (2)The available independent information clearly shows that Malaysia has corruption and government persecution.  The Tribunal had failed to understand the extent and seriousness of the dangers faced by those people who publicly campaigned for justice.

   Particulars

   It related to independent country information and the continuation of the fact that protest against the government is dangerous in Malaysia.  After the persecution of protestors began in 2012, the applicant’s family members suffered a lot because they exposed the relationship between the officials and businessmen.

   (3)Relocation to another part of Malaysia would be unreasonable.  This was because the applicant would continue to express the views publicly if the applicant was to return.

   Particulars

   The issue of relocation within Malaysia was discussed by the Tribunal with the applicant during the hearing.  It is clear that the Tribunal made unreasonable findings as such about relocation, and the issue of relocation formed part of the Tribunal’s reasoning in the earlier delegate’s decision.

5. The issue for me in this case was whether the applicant was entitled to an order for the issue of constitutional writs on the basis that the tribunal had fallen into jurisdictional error.

Synopsis

1. For the reasons that follow, in my judgment the tribunal did not fall into jurisdictional error.  The application to this court for judicial review must be dismissed and the applicant must pay the minister’s costs, fixed at $5 000.

Relevant narrative

1. The details of the applicant’s protection claims were set out in a document called “personal statement” that she attached to her protection visa application.  The document appeared at pages 37 and 38 of the court book.  Relevantly paraphrased, the details of her personal statement may be condensed as follows –

   a)in early February 2012, part of a Chinese cemetery in Kulai containing graves of the applicant’s mother’s “ancients” (meaning her forebears) was acquired by the Ministry of Transport to make way for an electrified double tracking project;

   b)persons who did not accept an offer of cremation and relocation of the remains would be given compensation in the sum of Malaysian Ringgits 1 200;

   c)on 12 March 2012 the applicant and her family along with others attended a protest and also wrote an open letter to the government, the salient portion of which letter the applicant set out in her personal statement;

   d)on 21 March 2012 the applicant’s father was ambushed, taken away by police, illegally detained at a detention centre and tortured after the construction project contractor, adversely affected by lost profits due to the protest, bribed police to arrest all opponents;

   e)the applicant, who was working out, survived arrest but police came to her house, she could not go to her home, she took shelter with a friend and in order to escape fled to Australia on 20 June 2012;

   f)her father was tortured, isolated and her mother was allowed to visit him once only on 1 September 2012 during which the applicant’s father told the applicant’s mother “If I die, it will have been due to torture”;

   g)on 26 November 2012 the applicant’s father died in prison;

   h)on 10 June 2015 the applicant’s mother was arrested by police who told her that the mother could only be released if the applicant returned;

   i)on 15 June 2015, when the applicant’s relatives visited the applicant’s mother, then in a wheelchair, the applicant’s mother told her relatives in a faint voice “If I die, it will have been caused by persecution”, the same words used by the applicant’s father prior to his death; and

   j)the contractor achieved its goal and now no one dares to oppose the project.

2. After the delegate refused the applicant’s protection visa application, on 30 October 2015 the applicant applied to the tribunal for a merits review.  On 20 July 2016 the tribunal invited the applicant to present evidence and arguments at a hearing scheduled for 11 August 2016.  According to the tribunal hearing record, the hearing commenced at 9:40am and concluded at 11:15am on 11 August 2016.  Only the applicant gave evidence with the assistance of a Mandarin interpreter.  On 19 August 2016 the tribunal decided to affirm the delegate’s decision to not grant the protection visa.  In its reasons, the tribunal recorded a number of matters that it accepted in the applicant’s evidence.  The tribunal accepted –

   a)the graves of the applicant’s mother’s family’s ancients were situated where the work of the electrified double tracking project was being undertaken and that those graves faced relocation;[1]

   b)that the applicant and others were dissatisfied with the proposed relocation of the graves, with Malaysian Ringgits 1 200 being offered in compensation, and with the loss of the feng shui;[2]

   c)that the applicant and her family attended a protest where a letter was presented to the relevant Malaysian authority;[3]

   d)that the applicant’s father and mother were detained due to their protesting and that the applicant’s father passed away on 26 November 2012;[4]

   e)that the applicant was not arrested for her part of the protests;[5]

   f)that the Malaysian authorities have proceeded with the cemetery relocation;[6] and

   g)that the applicant’s mother accepted the compensation payment.[7]

   [1] Administrative Appeals Tribunal decision made on 19 August 2016 [55]

   [2] Ibid [56]

   [3] Ibid [57]

   [4] Ibid [58]

   [5] Ibid [59]

   [6] Ibid [60]

   [7] Ibid [66]

3. On key factual matters, the tribunal made findings that it did not accept a number of pieces of information advanced by the applicant.  The tribunal stated that it did not accept that –

   a)the applicant was to be arrested for her activities in protesting against the gravesite relocation;[8]

   b)the applicant avoided arrest because she was working out, the police came to her house several times to catch her, she took shelter in a friend’s house or that she was wanted by the police, the authorities, the developer or anyone else as a result of protesting against the gravesite relocation;[9]

   c)the applicant’s mother was detained in circumstances where she would only be released if the applicant returned to Australia;[10]

   d)the Malaysian government or the developer had a motive to seriously harm the applicant and, when put to her, the applicant’s response that her father died in prison and her mother was also abused was not credible;[11] and

   e)the applicant had a significant profile as a political activist.[12]

   [8] Ibid [59]

   [9] Ibid [59]

   [10] Ibid [60]

   [11] Ibid [63]

   [12] Ibid [63]

4. The tribunal said the delay in the applicant applying for protection undermined her claim that she feared serious harm.[13]

   [13] Ibid [61]

5. Relying on country information the tribunal at paragraph 68 of its reasons did not accept that the tribunal faced a real chance of serious harm due to the period of time she had been absent from Malaysia.

6. The tribunal rejected the applicant’s claims under s 5J of the Act. It also rejected her claim to complementary protection. The tribunal said she was not a person in respect of whom Australia owed protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.

In this court

1. In the passages above I have set out the terms of the applicant’s grounds of her application to this court.  Before addressing those it is pertinent to point out the observations of Heerey J in Selvadurai v Minister for Immigration and Ethnic Affairs[14] that a delay of 20 months was a matter highly relevant to the assessment of a claim.  Here, the delay was three years.

   [14] [1994] FCA 1105

Ground one

1. In essence, the applicant argued that the tribunal was required to give her an opportunity to comment on country information.

2. I disagree. The tribunal was required to comply with division 4 of part 7 of the Act in its conduct of the hearing, rather than with broad common law obligations of procedural fairness. The Full Court of the Federal Court of Australia said as much in SZCIJ v Minister for Immigration & Multicultural Affairs.[15]  Further, the use to which the tribunal makes of country information is a matter for it alone as the Full Court observed NAHI v Minister for Immigration and Multicultural and Indigenous Affairs.[16] Further, in this case the country information applied by the tribunal was referrable to a class of persons of which the applicant was a member. It was not referrable to the applicant specifically. The tribunal was not required to invite the applicant to comment on such information as prescribed by s 424A(3)(a) of the Act.

   [15] [2006] FCAFC 62

   [16] [2004] FCAFC 10

3. In my view, no jurisdictional error was revealed by ground one.

Ground two

1. Under this ground the applicant contended that Malaysia had corruption and that the tribunal failed to understand the extent and seriousness of the dangers faced by those who campaigned for justice.

2. Aside from the fact that the protest about graves relocation may not be properly characterised as a campaign for justice, the allegation that the tribunal did not understand the seriousness of dangers faced by campaigners was addressed by the country information in this case that stated that protestors face a low risk of arrest.  That explained the tribunal’s conclusion at paragraph 65 of its reasons that the applicant did not face a real chance of serious harm in the reasonably foreseeable future.

3. In my view, the tribunal made no error in ground two.  This ground failed.

Ground three

1. Under this ground, the applicant argued that relocation was unreasonable because the applicant would continue to publicly express her views if returned.  The minister said the applicant failed to correctly capture the tribunal’s findings at paragraph 67 of its reasons.  There, the tribunal said in express terms that it was not necessary to make findings on whether the applicant could reasonably relocate.  I agree that the applicant misconstrued the tribunal’s findings.

2. Ground three failed.

A final note

1. Today the applicant was called outside court three times and failed to appear.  This case was listed for hearing today at 10:15am and the applicant was given due notice of the listing.  It must be remembered that the applicant has brought this application for judicial review.  It is in the applicant’s interests to present herself for the hearing and consideration of this application.  The court arranged an interpreter who was present today.  The applicant failed to appear.  Counsel for the respondent appeared after filing written submissions.

2. The court arranged its affairs to accommodate the applicant’s application for judicial review, yet the applicant failed to appear. In those circumstances, I resisted Ms Tattersall’s request to dismiss this proceeding under r 13.01C(1)(c) of the Federal Circuit Court Rules for the simple reason that an application dismissing it under that rule enables the applicant to apply for reinstatement.  Here, everyone but the applicant participated in this hearing.  In my view, the case ought to have been determined on its merits as indeed I have.  The application is dismissed and, for reasons already mentioned, the applicant is ordered to pay the minister’s costs.

Conclusion

1. All grounds failed.  No jurisdictional error was shown.  This application for judicial review is dismissed.  I order the applicant to pay the minister’s costs in the fixed amount of $5 000.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson

Date:              17 August 2018