CTE15 v Minister for Immigration

[2017] FCCA 2978

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTE15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2978

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – where Tribunal made credibility findings – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa).

Applicant: CTE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2831 of 2015

Judgment of: Judge Hartnett

Hearing date: 8 November 2017

Delivered at: Melbourne

Delivered on: 8 November 2017

REPRESENTATION

Counsel for the Applicant: In person

Solicitor acting as Counsel for the First Respondent: Ms Jackson

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2831 of 2015

CTE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed 21 December 2015, wherein the Applicant applies for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal), which affirmed the decision of the Minister’s delegate not to grant the Applicant a protection (Class XA) visa. 

2. The grounds of the application are as follows:

   “(1) I could not get supporting documents to provide to the Tribunal.

   (2) Lack of English.

   (3) Tribunal need to review by protection visa refusal.” 

3. The First Respondent seeks in their response, dismissal of the application and that the Applicant pay the First Respondent’s costs of the proceeding on the grounds that the decision under review is not affected by jurisdictional error.

4. There is also before the Court the evidence as contained in the Court Book, filed 22 June 2016, and the written submissions of the First Respondent, which are dated 29 March 2017.

5. Registrar Buljan made orders on 25 May 2016, including that the Applicant file and serve an amended application, if any, with proper particulars of the grounds of the application, and written submissions.  The Applicant failed to comply with that order. Nevertheless, the Applicant was given an opportunity this day to make oral submissions to the Court, which he did, albeit in a very limited way. 

6. The Court commences by noting that the grounds of application, as relied upon by the Applicant, are not proper grounds and are essentially meaningless for the purposes of establishing that the decision of the Administrative Appeals Tribunal (‘the Tribunal’) is attended by jurisdictional error. 

7. The first ground of the application suggests that the Applicant was unable to put supporting material in documentary form before the Tribunal.  I note the Applicant had ample time to do so.  He applied for the visa on 19 September 2014 and appeared before the Tribunal on 2 December 2015. 

8. The findings made by the Tribunal rested on the credibility of the oral evidence of the Applicant. The Tribunal, as set out in paragraph 36 of the Statement of Decision and Reasons (‘the Decision Record’), had a number of significant concerns regarding the evidence of the Applicant. 

9. The Tribunal expressed its concern at the central basis of the Applicant’s claim that the Applicant was an identified witness to a crime, and was therefore threatened and at risk of harm.  The Tribunal noted that the description of the incident of December 2011, as the Applicant had provided, had significant deficiencies that caused the Tribunal to consider that it was implausible that he was identified as a witness to a crime. 

10. The Applicant’s stated ground that he had a lack of English does not go to jurisdictional error attending the Tribunal decision. The Applicant, who claims and was found to be a citizen of Malaysia, appeared before the Tribunal on 2 December 2015 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. 

11. There is nothing on the face of the Tribunal decision that discloses any absence of a real and meaningful opportunity for the Applicant to participate in the hearing. 

12. The third ground of the application is, in essence, nonsensical.  The Tribunal noted in the Decision Record that a delegate of the Minister had refused to grant the visa on 15 December 2014 and that thereafter the Applicant lodged an application for review with the Tribunal. 

13. The Applicant was invited to attend a hearing before the Tribunal to give evidence and present argument relating to the issues in his case.  The first hearing date provided for was 27 November 2015, with the matter being resumed on an adjourned hearing date of 2 December 2015.  On each occasion, the Applicant was assisted by an interpreter in the Cantonese and English languages. 

14. The Applicant is a citizen of Malaysia. He visited Australia on an electronic travel authority from 23 October 2000 to 31 October 2000.  He, again, arrived in Australia on 15 March 2013 on a three month visitor visa. He remained in Australia as an unlawful non-citizen following the expiration of that visa until he applied for the protection visa on 19 September 2014. 

15. The Tribunal took into account the Applicant’s delay in applying for the visa, as it was entitled to. The Tribunal said, in paragraph 51 of the Decision Record, the following:-. 

    “51. The Tribunal notes that it is also legitimate to take into account an Applicant’s delay in lodging an application for a protection visa and assessing the genuineness, or at least the depth, of the Applicant’s claimed fear of persecution (per Heerey J Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347).”

16. The Tribunal noted that the Applicant arrived in Australia in March 2013 but did not apply for his protection visa until September 2014.  He was unlawful for over a year in Australia.  The Tribunal expressed a concern at this delay. 

    “52. The applicant stated he arrived in Australia not aware of this channel, so did not apply.  When he arrived, he wanted to work, to make money before he goes back to Malaysia.  The applicant stated that before he applied for protection he was not getting much money, he had to get money from family in Malaysia.  He did not speak to an agent.  The Tribunal noted that refugee issues have been prominent in Australia recently.  The applicant stated he was not aware of this.” 

17. The Applicant’s claims for protection were set out in his protection visa application, the Tribunal noted them in paragraph 19 of the Decision Record as being:-

    “19. …  In 2011, he witnessed a person he did not know being shot by an Indian person he did not know.  He fears harm from this unknown person, who he thinks is a gangster.  He will be beaten and killed.  They will cause many difficulties for him.  He got [a] missed call from a private numbers.  He received threats.  He saw the man in Kuala Lumpur who chased him.  If he goes to the police, his problem starts. They are threatening to kill him.” 

18. At the Tribunal hearing on 2 December 2015, the Applicant provided further detail to the Tribunal regarding his claim or claims. Those are set out in paragraphs 25 to 30 of the Decision Record.  Additionally, the Applicant claimed that he had been followed whilst walking near his ancestral home in George Town, a Chinese district. He had made no mention of this claim in his application. 

19. The Applicant made a further claim at the Tribunal hearing, as set out in paragraph 30 of the Decision Record and being as follows:-

    “30. The applicant stated that on the day he was going to the airport in Kuala Lumpur to come to Australia he saw the killer at the train station.  The applicant initially stated that he saw the killer boarding the train, he was watching and following him.  The applicant stated that the killer approached him, he got off the train at the airport and ran into the terminal and did not come out again.  The applicant changed this story later to say he was on the train when before the train door closed he was looking out the window, saw the killer on the platform, he also saw the applicant, they stated (sic) at each other.  The killer made an effort to board the train, but [the] door closed before he got in.  the killer did not get on the train. The Tribunal noted this was different to what he had stated earlier. The applicant stated that possibly the interpreter misunderstood him.  The killer had not got into the train, but had been staring at him.”

20. The Applicant also said in respect of the killing, which he claimed to have witnessed on 20 December 2011 at around 11.00pm, that he thereafter drove to a police station and made a report.  He claimed the police took his details and said they would send someone to investigate. The police then returned and said they had failed to find any clues; what he reported did not happen. The police would not make a report. The Applicant stayed at the police station until 7.00am and then left to go home.

21. The Applicant fears that he is at risk of being killed if he returns to Malaysia.

The Tribunal’s Findings

1. The Tribunal accepted that the Applicant witnessed a violent criminal incident at 11.00pm on 20 December 2011.  However, the Tribunal did not accept that the Applicant was recognised by the man the Applicant called “the killer”, either at the time of the incident or at any other time.  The Tribunal noted that it was not plausible that the killer recognised the Applicant at night-time. The light from the Applicant’s motorbike (on which he was seated) was facing the killer and the Applicant was wearing his helmet.

2. In assessing the Applicant’s credibility, the Tribunal noted there were a number of significant concerns regarding the Applicant’s evidence, some of which the Applicant changed at the hearing. The deficiencies in the Applicant’s evidence were canvassed with the Applicant by the Tribunal and caused the Tribunal to find that it was implausible the Applicant was identified as a witness to a crime.

3. Paragraphs 39 to 53 of the Decision Record are replete with references to the Tribunal not accepting the evidence of the Applicant on the basis of implausibility;  inconsistencies in the Applicant’s evidence; the Tribunal finding the Applicant “concocted” elements of his claims, and recent invention.

4. The Tribunal did not accept nearly all of the Applicant’s claims. The Tribunal did not accept there was any ongoing police inquiry into any incident or criminal proceedings. The Tribunal considered the Applicant claims that the police had given his details to the alleged killer highly speculative and not probable. The Tribunal discussed with the Applicant country information that the police had cracked down on criminal gangs in Malaysia. The Tribunal did not accept that the Applicant had ever been threatened, chased, looked for, called or followed by the man the Applicant called “the killer” or any gang member. The Tribunal did not accept the Applicant had ever had to change his address or go into hiding because of any incidents. The Tribunal found the Applicant would not be looked for in the future on return to Malaysia and that the Applicant did not have a real chance of serious harm arising from his being witness to a criminal matter now or in the reasonably foreseeable future. The Tribunal also considered whether the Applicant met the complementary protection criterion under s.36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’) and the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Malaysia, there was a real risk the Applicant would suffer significant harm. The Tribunal was not satisfied the Applicant was a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

Consideration

1. In its Decision Record, the Tribunal correctly stated the relevant legal principles for a protection visa to issue. The Tribunal’s reasons for decision disclose no misunderstanding of the application of those principles to the Tribunal’s finding of fact as submitted by Counsel for the First Respondent. 

2. The Tribunal carefully went through each of the claims and elements of the claims of the Applicant and put to the Applicant where the Tribunal had concerns about those claims. The Tribunal also put to the Applicant relevant country information.

3. There is nowhere any evidence that the Tribunal failed to accord procedural fairness to the Applicant or failed to comply with any of the statutory procedures required by Division 4 of Part 7 of the Act.

4. In oral submissions made this day, the Applicant referred to a negative attitude being exhibited by the Tribunal member. A suggestion of actual bias is a serious matter and the Applicant puts nothing before the Court to support such an assertion. The Court finds no actual or apprehended bias by the Tribunal. The Decision Record is logical and probative and the credibility findings, together with the other findings made by the Tribunal, were open to it on the evidence before it. The Applicant’s desire is that he “hopes to stay in Australia”. That is a very separate matter from having a meritorious ground of judicial review.

5. No jurisdictional error attends the decision of the Tribunal. The application will be dismissed and costs follow the event.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 1 December 2017