Cqo17 v Minister for Immigration

[2018] FCCA 1524

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQO17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1524

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:
Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A

Cases cited:
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBA v Minister for Immigration [2003] FCAFC 90
Sun v Minister for Immigration (1997) 81 FCR 71
SZGUP v Minister for Immigration & Anor (2008) 100 ALD 518

Applicant: CQO17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1872 of 2017

Judgment of: Judge Driver

Hearing date: 12 June 2018

Delivered at: Sydney

Delivered on: 12 June 2018

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms S Given of HWL Ebsworth

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1872 of 2017

CQO17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 May 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the decision by the Tribunal on them are set out in the Minister’s outline of submissions filed on 5 June 2018. 

2. The applicant, a female citizen of Malaysia, applied for a protection (subclass 866) visa on 22 June 2016.[1]  In her application to the Minister’s Department, the applicant claimed to fear harm because she was a victim of domestic violence.[2]

   [1] Court Book (CB) 1 to 41

   [2] CB 32

3. On 22 September 2016, the delegate refused the application on the basis that the applicant was not a refugee as defined by s.5H(1) of the Migration Act 1958 (Cth) (Migration Act) and that there were not substantial grounds for believing that as a necessary or foreseeable consequence of being removed from Australia to Malaysia, there was a risk that the applicant would suffer significant harm.[3]

   [3] CB 62 to 68

4. On 31 October 2016, the applicant applied to the Tribunal for review and attached a copy of the delegate's decision.[4]  The applicant appeared before the Tribunal on 15 May 2017 to give evidence and present arguments.[5]  On 18 May 2017, the Tribunal affirmed the decision of the delegate.[6]  The notification of decision was emailed to the applicant on 19 May 2017.[7]

   [4] CB 69 to 81

   [5] CB 88 to 93

   [6] CB 96 to 108

   [7] CB 94 to 95

Tribunal decision

1. At the hearing, the Tribunal traversed the issues with the applicant and determined that the sole basis for the applicant's claim for protection was that she was the victim of domestic violence.[8]  The applicant claimed that she feared the violence would continue if she returned to Malaysia.

   [8] CB 100 at [23] to [24]

2. The Tribunal canvassed several issues related to the applicant's claim,[9] including:

   a)when the alleged abuse started and its extent; 

   b)her living situation prior to coming to Australia, including her employment; and

   c)any assistance she may have sought from third parties or family.

   [9] CB 100 to 101 at [27] to [39]

3. The Tribunal did not find the applicant to be credible when discussing her claims.[10]  The Tribunal documented the applicant’s admission at the hearing that she had intended to apply for a student visa after arriving in Australia, however, it was expensive and she had applied for a protection visa instead.[11] The Tribunal gave considerable weight to this admission.

   [10] CB 100 at [40]

   [11] CB 102 at [47]

4. The Tribunal considered complementary protection and found that there were not substantial grounds for believing that as a necessary or foreseeable consequence of being removed from Australia to Malaysia, there was a necessary or foreseeable risk that the applicant would suffer significant harm.[12]

   [12] CB 103 at [56]

The present proceedings

1. These proceedings began with a show cause application filed on 15 June 2017.  The applicant continues to rely upon that application.  There are three grounds in it:

   (a)The Second Respondent did not comply with its obligation to put adverse information relied upon as part of the reason for its decision to the applicant to comment.

   (b)In making is decision the Second Respondent is affected by jurisdictional error.

   (c)The Second Respondent had bias against the applicant in making its decision.

2. The application is supported by a short affidavit filed with it, in which the applicant makes a further general assertion of jurisdictional error.  I received that affidavit as a submission. 

3. I have before me as evidence,[13] the court book filed on 30 May 2018.  That was filed outside the period set in procedural orders made by a registrar.  Correspondence sent by mail and email on 30 May 2018 to the applicant at her nominated street and email addresses is also before me as evidence as part of exhibit R1.  The applicant acknowledged receipt of the email, but not the letter.  I took the applicant through the documents in the court book and explained generally its contents to her.  She did not object to my receipt of the documents in the court book as evidence, and I am satisfied that she has not been unfairly disadvantaged by the late provision of the court book. 

   [13] exhibit R1

4. I invited oral submissions from the applicant this morning.  She told me that she is living under severe economic conditions in Australia and that she will not be able to subsist if she is required to return to Malaysia.  She is determined to remain in Australia as long as she can in order to support herself financially.  She was frank in explaining her position, but she was not able to point to any argument of legal error by the Tribunal.  Her claim of bias is based only on the Tribunal’s rejection of her claims.  As I explained to her, simple disagreement with the Tribunal’s reasons cannot support an allegation of bias. 

5. The other grounds in the application are either unparticularised or unsupported by any material. In terms of the asserted breach of s.424A of the Migration Act, there was nothing relied upon by the Tribunal which enlivened the obligation of disclosure under that section. I otherwise agree with the Minister’s submissions concerning the grounds of review.

6. The first ground asserts that the Tribunal failed to comply with s.424A of the Migration Act as it did not comply with its obligation to put adverse information that was relied upon as part of the reason for its decision to the applicant for comment. This ground is not further particularised. As already noted above, there was no identifiable information that enlivened s.424A of the Migration Act.

7. Further, while the Tribunal took into account country information prepared by the Department of Foreign Affairs and Trade,[14] this information fell within the exception to s.424A(3)(a) of the Migration Act.

   [14] CB 98 at [8]

8. The second ground is also not further particularised.  The fact the applicant may disagree with the Tribunal's decision or its assessment of the evidence and its findings, will not in itself give rise to a jurisdictional error.[15]  

   [15] SZGUP v Minister for Immigration & Anor (2008) 100 ALD 518 at 523

9. The third ground alleges that the Tribunal was biased against the applicant.  An allegation of bias should not be lightly made.[16]  It should be “distinctly made and clearly proved”.[17]  Success is dependent upon establishing not only that  the decision maker prejudged the matter but that he or she closed their mind to any arguments in support of the contrary.[18]

   [16] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36

   [17] Minister for Immigration v Jia Legeng [2001] HCA 17 at [69]; (2001) 205 CLR 507 at 546

   [18] Sun v Minister for Immigration (1997) 81 FCR 71 at 134

10. The applicant's claim is neither particularised nor supported by any evidence other than the applicant’s disagreement with the Tribunal’s reasons. For that reason, the applicant's contention would fail. 

11. Insofar as the applicant's contention is that the Tribunal's adverse credibility findings support a finding of apprehended bias, the Tribunal is entitled to assess the evidence and attach such weight to that evidence as it regards as appropriate.[19]

    [19] SBBA v Minister for Immigration [2003] FCAFC 90 at [15]

12. The applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

13. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $3,606.  The applicant again reiterated her financial circumstances, but indicated both a determination to stay in Australia and to pay the costs if that was a necessary element of staying here.

14. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  13 June 2018