CSQ17 v Minister for Immigration
[2017] FCCA 2987
•4 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CSQ17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2987 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Malaysian citizen – whether denial of procedural fairness – whether all claims considered – where ground of review not particularised – whether jurisdictional error. |
| Legislation: Evidence Act 1995 (Cth), s.60(1) |
| Cases cited: Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2004] HCA 62; (2004) 221 CLR 1; (2004) 79 ALJR 397; (2004) 211 ALR 660; (2004) 82 ALD 1 |
| Applicant: | CSQ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 331 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 1 December 2017 |
| Date of Last Submission: | 1 December 2017 |
| Delivered at: | Perth |
| Order pronounced: | 1 December 2017 |
| Delivered on: | 4 December 2017 |
REPRESENTATION
| Applicant: | No appearance |
| Counsel for the First Respondent: | Ms E Tattersall |
| Counsel for the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS (as made on 1 December 2017)
That the application be dismissed.
Reasons for Judgment will be published from chambers at a later date.
The applicant pay the first respondent’s costs in the sum of $5800.00 by 2 January 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 331 of 2017
| CSQ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) under the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 9 June 2017 to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) not to grant the applicant a Protection (Class XA) visa (“Protection Visa”).
The Tribunal Decision is at Court Book (“CB”) 123-134.
Background
The background to the Judicial Review Application is as follows:
a)on 1 October 2011 the applicant, a Malaysian citizen, arrived in Australia on an Electronic Travel Authority (UD-976) expiring on 1 January 2012: CB 84;
b)the applicant remained in Australia unlawfully until applying for a Protection Visa on 11 December 2014 where he made the following claims: CB 1-28;
i)he was falsely accused of selling national secrets and the police beat him and harassed his mother, and he fled as he was terrified by the prospect of a life in prison characterised by terrible food and treatment and daily beatings: CB 20;
ii)his mother has told him authorities continue to question, threaten and blackmail her despite his departure in 2011, and if he returned he would be arrested, beaten and likely sentenced to death or life-long imprisonment: CB 21; and
iii)he could get no assistance or help from the authorities as they are all “bribed and work with the notorious underworld,” and he could not survive: CB 22-23;
c)on 23 May 2016 the Delegate refused to grant the applicant a Protection Visa: CB 80-96;
d)on 30 May 2016, the applicant lodged an application for review of the Delegate's Decision with the Tribunal: CB 97-98; and
e)on 9 June 2017, the applicant appeared before the Tribunal and the Tribunal Decision was delivered orally on that date affirming the Delegate's Decision, and a written statement was published later: CB 116-117 and CB 123-134.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)set out the relevant law: CB 124 at [8]-[9] and CB 131-134 at [52]-[71];
b)considered:
i)the country information survey in the Delegate’s Decision and accepted it as relevant and credible: CB 125 at [11]; and
ii)very recent country information (September 2016) published by the Department and noted that it generally aligned with the country information surveyed in the Delegate’s Decision: CB 125 at [12];
c)discussed over “some time” with the applicant the refugee and complementary protection criteria: CB 125 at [13];
d)noted that it was required to assess the applicant’s credibility and set out the law with respect thereto: CB 125-126 at [14]-[16];
e)noted the summary of protection claims contained within the Delegates Decision which the applicant accepted was a fair summary of his claims for protection: CB 126 at [17];
f)noted that it had provided the applicant with an opportunity at hearing to amend, or change the nature or content of his claims, but he did not do so: CB 126 at [18];
g)noted that it had questioned the applicant at length about the nature of his claims, and indicated that it had “considered each of the integers of the applicant’s claims for protection” which related to:
i)police and government official harassment;
ii)a false arrest; and
iii)imprisonment without trial and extortion,
and did so separately and together: CB 126 at [19];
h)noted there were a large number of inconsistencies between evidence provided by the applicant at the Tribunal hearing and the applicant’s original Protection Visa application: CB 126 at [21], and further noted that the written Protection Visa application had missing educational details, employment details, family details and incomplete statements of the applicant’s prior overseas travel: CB 126 at [22];
i)noted that:
i)the applicant referred in his Protection Visa application to having been arrested without charge and harassed by the police, sometime in 2010, or 2011, but he could not provide the Tribunal with any dates of his arrest, harassment, or detention, nor details of the location of the police station, or detention centre: CB 127 at [26];
ii)the applicant’s claims to have been released upon payment of bail or a bribe lacked details: CB 127 at [27]; and
iii)the applicant’s failure to disclose any of his personal particulars in his Protection Visa application: CB 126 at [22] and CB 127 at [27],
meant that the Tribunal determined not to place any weight on the above aspects of the applicant’s claims: CB 127 at [27];
j)noted that the applicant had changed his evidence in relation to where he had hidden upon release from detention, and had made claims in relation to harassment from Triads which were raised for the first time at the Tribunal hearing and in the absence of an explanation for their late disclosure, these claims lacked credibility: CB 127 at [28];
k)held the applicant's return visit to Malaysia earlier in 2011 after a visit to Australia did not suggest that he subjectively feared persecution in Malaysia and was more suggestive of an absence of persecution in Malaysia: CB 127 at [29]-[31];
l)in relation to the delay in applying for a Protection Visa after the applicant had been in Australia unlawfully after 1 January 2012, the Tribunal found that the applicant’s explanation that he lacked English and was afraid that he would be returned to Malaysia if he made such a claim, was inconsistent with his evidence that he knew Australia had a good human rights record and that the applicant had previous dealings with the Department on the two separate occasions on which he had travelled to Australia: CB 127-128 at [32], and that the applicant also said that he needed to work because he had a son in Malaysia and his family needed money and that he thought he would get a job in Australia, and the Tribunal noted that during the hearing the applicant repeatedly referred to his poor family background and the desire for a better chance in life: CB 128 at [36];
m)accepted the credible country information stating Malaysia has an adequate police force and an appropriate judicial system, and that the applicant had no credible reason for his delay in seeking protection after the expiry of his second visitor’s visa, and that the delay was not reasonable in the circumstances, and was a factor in assessing the applicant’s credibility: CB 128 at [38];
n)found that the applicant’s claims for protection were not credible, that he had provided incorrect and misleading information and made incorrect and misleading omissions in his Protection Visa application, that there was no reasonable explanation for his unwarranted delay in seeking protection, and accordingly the Tribunal did not accept that the applicant’s claims for protection were credible: CB 128-129 at [39];
o)carefully considered each of the integers of the applicant's claim to fear serious harm discussed with him: CB 129 at [42]-[43], separately and together, in the context of the complementary protection criterion regarding the real risk of significant harm: CB 129 at [44]-[47];
p)found no grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Malaysia there is a real risk that he will suffer significant harm, and the criterion under ss.36(2)(a) and 36(2)(aa) of the Migration Act are not satisfied : CB 130 at [48]-[50]; and
q)affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 130 at [51].
Judicial Review Application
The grounds of the Judicial Review Application are as follows:
1. The tribunal didn’t give me a chance to comment on one aspect of my claims, particularly that I will face significant harm at the hands of the Malaysian authorities, police, and even gangsters; If I return to Malaysia, I will faces significant harm because the authorities secretly co-operate with the gangsters.
2) The tribunal failed to properly consider all my claims.
[Copied verbatim].
By reason of orders made by a Registrar of the Court on 13 September 2017 (“Registrar’s Orders”) the applicant was provided with an opportunity to file an amended application, supporting affidavits and written submissions prior to the hearing of the Judicial Review Application by this Court, but the applicant did not do so. The applicant did not appear at the hearing before the Court on 1 December 2017.
Consideration
The Tribunal Decision is only liable to be set aside upon judicial review if it involves jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. Further, an error by the Tribunal, will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”).
Ground 1
The first ground appears to imply the applicant has been denied procedural fairness. The applicant claimed the Tribunal denied him an opportunity to comment on his claim that he will face significant harm at the hands of the Malaysian authorities, police and gangsters, all of whom secretly co-operate.
It was for the applicant to make out his case before the Tribunal and to provide evidence and arguments in sufficient detail to enable the Tribunal to reach the requisite state of satisfaction: Minister for Immigration & Multicultural Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992; (2004) 78 ALD 224 (“SGLB”). The Tribunal is not obliged to investigate, probe or inquire in order to make an applicant’s case for them: Minister for Immigration & Citizenship v Le [2007] FCA 1318; [2007] 164 FCR 151; (2007) 242 ALR 455; (2007) 97 ALD 112 at [55] per Kenny J: SGLB at [43] per Kenny and Gummow JJ; Minister for Immigration & Citizenship v SZNVW [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 at [36] per Keane CJ (“SZNVW”).
The Tribunal:
a)advised the applicant by way of the acknowledgment of application that if he wished to provide any material or written arguments he should do so as soon as possible: CB 100-101;
b)invited the applicant to attend a hearing scheduled to take place on 9 June 2017 in accordance with ss.425 and 425A of the Migration Act: CB 103-104, and the applicant appeared at the scheduled hearing: CB 111-114; and
c)at the Tribunal hearing:
i)discussed with the applicant his claims for protection: CB 126 at [17]);
ii)provided him with the opportunity to amend his claims: CB 126 at [18];
iii)questioned the applicant at some length about the nature of his claims: CB 125 at [13]; and
iv)considered each of the integers of his claims: CB 126 at [19].
The applicant’s attendance at the Tribunal hearing was a “meaningful” opportunity to be heard where the Tribunal sought to ensure it understood the applicants claims by expressly asking the applicant if the summary of claims in the Delegate’s Decision was fair, to which the applicant responded affirmatively: CB 126 at [17]; Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142; [2006] 154 FCR 365; (2006) 236 ALR 42; (2006) 92 ALD 1 at [92]-[93] per French J and [134] per Allsop J; SZBEL at [33]-[34] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
The Tribunal did specifically consider, and draw a conclusion with respect to the applicant’s claims of persecution as a result of harassment by police, government officials and gangsters, and found that the applicant had no well-founded fear of persecution now or in the reasonably foreseeable future: CB 129 at [41]. It did so having put those matters to the applicant for comment, and having considered each of those matters, but made the finding adverse to the applicant by reason of a lack of credibility with respect to those claims. In particular, the Tribunal noted that it had “considered each of the integers of the applicant’s claim for protection relating to police and government official harassment”: CB 126 at [19], but that the applicant could not provide the Tribunal with dates of arrest, harassment or detention in relation to alleged police harassment in 2010 or 2011: CB 127 at [26], that the applicant had introduced fresh claims during the hearing relating to particular harassment from Triads (gangsters), but the lack of particulars relating to the claims and the absence of a reasonable explanation of their late disclosure suggested a lack of credibility with respect to them: CB 127 at [28]; and otherwise referred to alleged police harassment or persecution: CB 27 at [29]-[31] and CB 128 at [37]. The Tribunal found that the applicant’s claims were not credible, and therefore not believable: CB 128 at [35], and in coming to its final conclusion had regard to the fact that country information indicated that Malaysia had an adequate police force and an appropriate judicial system, and that the applicant’s delay in seeking protection after the expiry of his second visitor visa was inconsistent with his having a well-founded fear of persecution: CB 128 at [38].
The Court notes that there is currently no evidence before the Court, such as a recording or transcript of the Tribunal hearing, which would suggest that the applicant was not given a real and meaningful hearing before the Tribunal. The Court also notes that the applicant did not avail himself of the opportunity to file such further evidence in these proceedings, notwithstanding the Registrar’s Orders allowing him to do so. In the absence of such evidence, the allegation that the Tribunal did not allow the applicant to comment on these matters cannot succeed: NAOA vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21] per Beaumont, Merkel and Hely JJ; Brar v Minister for Immigration & Border Protection & Anor (No 2) [2017] FCCA 1538; (2017) 322 FLR 81 at [15] per Judge Lucev. In the absence of such evidence, the supposed procedural unfairness is to be determined by reference to the Tribunal record (in this case the Tribunal Decision): Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2004] HCA 62; (2004) 221 CLR 1; (2004) 79 ALJR 397; (2004) 211 ALR 660; (2004) 82 ALD 1 at [63] per Kirby J; SZNVW at [59] per Perram J; CJV15 v Minister for Immigration & Anor [2016] FCCA 1447 at [13] per Judge Lucev; DGM17 & Ors v Minister for Immigration & Anor [2017] FCCA 2896 at [34] per Judge Jarrett; Evidence Act 1995 (Cth), s.60(1), and given the process followed by the Tribunal at hearing: see [4(e), (f) and (g)] above, citing CB 126 at [17]-[19], there is nothing in the Tribunal Decision which evinces a lack of procedural fairness by reason of a denial of a meaningful opportunity to be heard.
The Tribunal was only required to afford the applicant procedural fairness in accordance with Pt.7, Div.4 of the Migration Act. Specifically, s.422B of the Migration Act is referred to as an exhaustive statement of the natural justice hearing rule and provides for all procedural requirements of the Tribunal’s review process. The purpose of obligations under Pt.7 Div. 4 of the Migration Act is to avoid practical injustice, such that compliance with procedural obligations is to be assessed objectively with regard to the extent and consequences a departure from the procedural requirements would deny an applicant a chance to be heard: Gill v Minister for Immigration [2017] FCAFC 51 at [58] per Griffiths and Moshinsky JJ; Minister for Immigration & Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627; (2009) 83 ALJR 1104; (2009) 259 ALR 405; (2009) 110 ALD 470. In this case it is plain that there was no breach of the procedural fairness requirements of Pt.7, Div.4 of the Migration Act by the Tribunal.
Section 424A(1) of the Migration Act must be strictly complied with by the Tribunal, and a failure to do so will amount to jurisdictional error: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 79 ALJR 1009; (2005) 215 ALR 162 at [77] per McHugh J. The section states:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
The obligation to provide clear particulars seeks to ensure an applicant is given a meaningful opportunity, that being an opportunity to give evidence and present arguments relating to the decision under review, and to comment and participate in the hearing: Migration Act s.425(1); SZNKO v Minister for Immigration & Citizenship [2010] FCA 297;(2010) 184 FCR 505; (2010) 267 ALR 35; (2010) 114 ALD 527 at [23] per Flick J; SZTGV v Minister for Immigration & Border Protection [2015] FCAFC 3, (2015) 229 FCR 90, (2015) 318 ALR 450, at [27] per Perram, Jagot and Griffiths JJ.
The Delegate’s Decision noted the lack of detail and particulars in the applicant’s claims, and coupled with the failure to provide any documentation in support of his beatings or incarceration provided no indication the applicant could not receive effective protection from the Malaysian authorities, and was determinative in the Delegate finding no plausible or credible fear or chance of persecution or harm on the information before it: CB 94 at [21] and [23]. The applicant was taken to be on notice of these issues without the Tribunal having to bring them to his attention: SZBEL at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. Nevertheless, the Tribunal invited the applicant to comment on inconsistencies and provide any explanations or further information, and questioned the applicant at length about his claims, and while the applicant had provided responses to these questions they still lacked detail and explanation: CB 127 at [28], and ultimately resulted, together with other matters considered by the Tribunal, in the applicant being found not to be credible in relation to his claims.
In all of the above circumstances the Court is satisfied that the Tribunal gave the applicant a real and meaningful opportunity to provide information and put his case to the Tribunal, and that the applicant did so, and that the matters which he complains he was not permitted to comment upon were put by him to the Tribunal, and subsequently considered by the Tribunal. The Court is therefore satisfied the Tribunal did not deny the applicant procedural fairness. No jurisdictional error has been established in relation to ground 1.
Ground 2
Ground 2 merely asserts that the Tribunal failed to consider all of the applicant’s claims. It provides no particulars of how that jurisdictional error is said to arise. The failure to particularise a ground of application is itself sufficient to warrant dismissal of such a ground: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; AQN15 v Minister for Immigration & Anor [2016] FCCA 58 at [33]-[35] per Judge Howard. The failure to particularise ground 2 is, therefore, of itself sufficient reason to conclude that ground 2 is not made out. In any event, there is no evidence the Tribunal failed to consider each of the applicant’s claims where the Tribunal:
a)expressly stated it had considered all integers of the applicant’s claims: CB 126 at [19];
b)noted the applicant’s claims of arrest, harassment and detention in 2010-2011: CB 127 at [26] and 128 at [37];
c)discussed the applicant’s claims of his circumstances as a poor person: CB 127 at [27] and 128 at [36];
d)addressed a new claim of fear of Triad gangsters made at the hearing for the first time: CB 127 at [28]; and
e)considered the applicant’s claims regarding the corruption of the Malaysian authorities and judiciary: CB 128 at [38].
Accordingly, no jurisdictional error is established by ground 2.
Conclusion and Orders
As the applicant has failed to establish jurisdictional error in relation to either ground 1 or ground 2, and there being no other jurisdictional error being apparent to the Court on the face of the Tribunal Decision, it follows that the Judicial Review Application must be dismissed. There will be an order accordingly. The applicant must pay the Minister’s costs, as sought.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 4 December 2017
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