CWK17 v Minister for Immigration

[2020] FCCA 1605

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWK17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1605

Catchwords:
MIGRATION – Application for review of decision of the Administrative Appeals Tribunal (the Tribunal) – whether the Tribunal misconstrued or misapplied the provision in s.36(2A) of the Act – whether the Tribunal acted without jurisdiction – whether the Tribunal acted outside the proper exercise of its jurisdiction – whether the Tribunal failed to consider a claim – whether the decision was affected by jurisdictional error by reason of an apprehension of bias or actual bias on the part of the Tribunal member – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 65, 476

Cases cited:

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)

[2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous

Affairs [2003] FCAFC 184; (2003) 256 FCR 593; (2003) 75 ALR 630;

(2003) 75 ALD 630

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802;

(2001) 233 FCR 136; (2001) 194 ALR 244

Dranichnikov v Minister for Immigration and Multicultural Affairs

[2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389;

(2003) 73 ALD 321

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1;

(2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223;

(2011) 119 ALD 1

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39;

(2009) 83 ALJR 1123; (2009) 259 ALR 429; (2009) 111 ALD 15

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB

[2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224

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

(2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1

VFAB v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 872; (2003) 131 FCR 102; (2003) 77 ALD 23

Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425;

(2001) 75 ALJR 982

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337;

(2000) 75 ALJR 277; (2000) 176 ALR 644; (2000) 63 ALD 577

Applicant: CWK17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2040 of 2017

Judgment of: Judge Nicholls

Hearing date: 11 June 2020

Date of Last Submission: 11 June 2020

Delivered at: Sydney

Delivered on: 18 June 2020

REPRESENTATION

Applicant: In person

Representative for the Respondents: Mr Goffinet

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.”

2. The application made on 28 June 2017 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $5000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2040 of 2017

CWK17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 28 June 2017, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse to grant the applicant a protection visa (“the visa”).

2. In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“Court Book” – “CB” – “RE1”).

Background

1. The applicant is a citizen of Malaysia (item 17 at CB 14). He arrived in Australia on 20 March 2016 (item 46 at CB 21). His application for the visa was received by the Minister’s department on 20 June 2016 (CB 1–CB 37).

2. The applicant claimed that if he returned to Malaysia he would be arrested and be required to pay an expensive fine as he is a member of “BERSIH”, a “Coalition for Clean and Fair Elections”, which also organised a rally in which citizens voiced their “frustration with government corruption and human rights issues” (CB 32–CB 34; see also CB 60).

The Delegate

1. On 1 August 2016, the delegate refused to grant the applicant the visa (CB 53–CB 64). The delegate found that, based on country information, the applicant did not have a profile which would cause him to be of “adverse interest” to the Malaysian authorities (CB 62). The delegate was also not satisfied that there was a real risk that the applicant would suffer significant harm upon return to Malaysia (CB 64). The delegate found that the applicant was not owed protection under s.36(2)(a) or s.36(2)(aa) of the Act (CB 63 and CB 64).

The Tribunal

1. The Tribunal received the applicant’s application for review on 3 September 2016 (CB 65–CB 70). On 26 May 2017, the applicant attended a hearing with the Tribunal (CB 72–CB 80).

2. On 30 May 2017, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa (CB 86–CB 89), and notified the applicant of its decision on 31 May 2017. (CB 83–CB 84).

3. Under the heading “Protection visa application” the Tribunal outlined the applicant’s claims to fear harm ([11] at CB 87):

   “…In relation to why he was claiming protection, the applicant stated that he left Malaysia because the government was seeking and chasing him for being a member of the Berish movement…Further, he claimed that he feared being arrested, imprisoned and fined for attending the Berish rally because the government did not tolerate anyone who joined the rally.”

4. Under the heading “Tribunal hearing” the Tribunal recorded that the following occurred at the hearing with the applicant ([13]–[15] at CB 87–CB 88):

   “13. In response to being asked what harm he would face if he returned to Malaysia, the applicant responded that he did not face any harm. He then proceeded to explain that he felt he had been cheated by a person he referred to [as] an agent. He said he had intended to return to Malaysia after visiting Australia but the agent, whom he met here, told him he could get a visa to work in Australia. He paid the agent $650 to apply for a working visa on his behalf and had no idea that the agent had instead made a protection visa application. The applicant said the agent had completed the protection visa application form and he had not looked at its contents himself because he lacked English. He said he did not fear serious harm or significant harm in Malaysia.

   14. I outlined the claims in the protection visa application. The applicant testified that he had attended a Bersih rally in 2015 in Kuala Lumpur. According to the DFAT report a peaceful Bersih rally was held in Kuala Lumpur in August 2015.² I put to the applicant that the rally was reportedly peaceful. The applicant agreed but added there had been speculation that three people who attended the rally may have suffered food poisoning as a result of sabotage by a group called the Red Shirts. According to DFAT, Red Shirts are NGOs linked to the government.³ Asked about the other claims in the protection visa application, the applicant indicated that they were not true. He testified that he did not fear being arrested, imprisoned or fined for attending the Bersih rally if he returned to Malaysia. Asked whether he would join a Bersih rally in the future, the applicant replied that he was not sure.

   15. I put to the applicant that as he did not seem to face serious harm or significant harm in Malaysia he did not appear to meet the definition of a refugee nor be owed complementary protection. The applicant agreed. I put to the applicant that it appeared he had been misled by the 'agent' who had given false information in his protection visa application. The applicant agreed.”

   [Footnotes Omitted.]

   [Emphasis Added.]

5. The Tribunal found the applicant to be credible and accepted that he attended a “…peaceful Berish rally in Kuala Lumpur in 2015.” ([18] at CB 88). The Tribunal noted that the applicant had not previously been harmed for attending the rally, and that “…he does not fear future harm for attending that rally”. ([18] at CB 88). The Tribunal concluded, that there is not a real chance that the applicant would suffer serious or significant harm on account of his attendance at the rally ([18] at CB 88).

6. The Tribunal noted that the applicant was “unsure” if he would participate in another BERISH rally, and found that there was not a real chance that the applicant would suffer serious or significant harm because he may attend a rally in the future “and/or for any other reason.” ([18] at CB 88).

7. The Tribunal found that the applicant did not meet the relevant definition in s.5H(1) of the Act, and was not satisfied that he was owed protection pursuant to s.36(2)(a) of the Act ([19] at CB 88).

8. The Tribunal also found that there were not “substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.” ([20] at CB 88). Therefore, the Tribunal found that the applicant was not owed protection under s.36(2)(aa) of the Act.

Application to the Court

1. The applicant’s application to the Court filed on 28 June 2017 is in the following terms:

   “1.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 his returns to Malaysia.

   2. The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act.

   3. The Tribunal has failed to investigate applicant's claim, specially the grounds of persecution in Malaysia. Therefore the Tribunal decision dated 30 May 2017 was effected by actual bias constituting judicial error.”

Before the Court

1. Orders made previously by a Registrar of the Court gave the applicant the opportunity to file any amended application, any evidence by way of affidavit and written submissions in explanation of the grounds of the application.

2. At the final hearing, before the Court the applicant was assisted by an interpreter in the Malay language. He confirmed that he had not filed any further documents in relation to his application.

3. The Minister’s solicitor confirmed that the applicant had been served with the Minister’s written submissions filed in these proceedings.

4. When given the opportunity to make submissions the applicant stated that he had “nothing” to say. When subsequently given another opportunity he confirmed that he just wanted the Court to consider the grounds of the application.

5. When pressed further by the Court, the applicant said that his visa application had been refused and that “with the COVID situation now it’s just not good at all”.

Consideration

1. The applicant’s disappointment, in and of itself, at not being granted the protection visa for which he had applied is not a basis on which jurisdictional error in the Tribunal’s decision may be found.  Further, the current COVID-19 pandemic which post-dated the Tribunal’s decision is also not a basis on which jurisdictional error in the Tribunal’s decision may be contemplated.

2. In all therefore, the applicant’s submissions before the Court did not assist in revealing jurisdictional error as it may arise from the stated grounds of the application, or otherwise.

3. Ground one of the application, as expressed, is in such formulaic and general terms that the lack of satisfactory particularity, left unparticularised by the applicant’s submissions, makes it difficult to identify any relevant assertion of jurisdictional error on the part of the Tribunal.

4. There is nothing in the evidence before the Court to indicate that the Tribunal misunderstood the applicant’s evidence. Despite opportunity to do so the applicant has not sought to put a transcript of the Tribunal hearing into evidence, to challenge the Tribunal’s account of what was said at the hearing. Nor did the applicant seek to challenge the Tribunal’s account, for example by way of submissions before the Court.

5. Nor is there anything in the evidence to indicate that the Tribunal misunderstood or misapplied the provisions in s.36(2A) of the Act. In all ground one is not made out.

6. Ground two appears to assert legal error in the way the Tribunal applied some relevant provisions of the Act.

7. The reference to “reasonable satisfaction”, perhaps, seeks to direct attention to that part of the statutory scheme which requires the Tribunal to reach a requisite level of satisfaction that the applicant meets either of the two relevant criteria for the grant of the visa, before the visa must be granted (s.65 and s.36(2)(a) and (aa) of the Act).

8. There is nothing in the evidence before the Court to suggest that the Tribunal’s finding that it could not be so satisfied involved some misunderstanding or misapplication of the law. The Tribunal’s inability, as explained cogently in its decision record, to reach such satisfaction, meant that the grant of the visa must be refused (s.65(1)(b) of the Act).

9. On the evidence before the Court, the Tribunal’s findings which informed its decision were all reasonably open to it on what was before it. The Tribunal gave intelligible and cogent reasons for these findings.

10. It is to be noted that it was the applicant’s own, and now unchallenged evidence, that he would not face any harm if he returned to Malaysia that in part informed the Tribunal’s analysis.

11. In all, there is nothing to indicate that the Tribunal acted without jurisdiction (as stated in the ground) or acted outside the proper exercise of its jurisdiction.  Ground two is not made out.

12. There are two broad complaints in ground three.

13. First, the ground asserts that the Tribunal failed to investigate the applicant’s claim that he would be persecuted if he returned to Malaysia. Taken on its face the complaint appears to be that the Tribunal failed to either consider his claims, or failed to conduct some further investigation of his claims.

14. On the evidence before the Court, there is nothing to suggest that the Tribunal failed to consider any claim expressly made or clearly arising from the circumstances presented by the applicant (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802). Nor did the applicant make a “substantial, clearly articulated argument relying upon established facts” that was not considered by the Tribunal. (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24]).

15. As to the claimed failure to investigate, there is no general duty on the Tribunal to conduct any investigation beyond what is statutorily required. (Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 (“SZGUR”)). Nor in the circumstances of this case was the Tribunal compelled to investigate beyond providing the applicant with a meaningful opportunity to attend a hearing to give his evidence and make arguments in relation to the issues in the review.

16. There is nothing in the evidence before the Court to say that the circumstances of this case obliged the Tribunal to make inquiries on the applicant’s behalf, or otherwise, or further inquiries about his claims (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43] and SZGUR at [20]). Nor can I see that the circumstances of this case required the Tribunal to make an “obvious” inquiry in the limited circumstances explained by the High Court in SZIAI (at [25]).

17. In presenting this ground, the applicant appears to have overlooked (he has certainly not challenged the Tribunal’s report), that it was his evidence to the Tribunal that he did not fear harm on return to Malaysia.

18. Second, the ground asserts actual bias on the part of the Tribunal.  The tests for bias, and for that matter the apprehension of bias, are well settled (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”), VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 and Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) HCA 63.

19. For an allegation of bias to be made out, requires that it be “distinctly made and clearly proved” (Jia Legeng at [69]). There is nothing in the evidence before the Court to even indicate bias, let alone that it can be made out.

20. Why the applicant sought to pursue this (and for that matter the other grounds of the application) is a matter for the applicant. However, for current purposes, it must be said, that it is difficult to understand how the applicant could make such a serious allegation of bias in light of the following ([15] at CB 88):

    “15. I put to the applicant that as he did not seem to face serious harm or significant harm in Malaysia he did not appear to meet the definition of a refugee nor be owed complementary protection. The applicant agreed. I put to the applicant that it appeared he had been misled by the ‘agent’ who had given false information in his protection visa application. The applicant agreed.”

    [Emphasis Added.]

21. As to the matter of an apprehension of bias there is nothing in the evidence to suggest that the well informed lay observer might apprehend that the Tribunal member might not have brought an open mind to the conduct of the review.

22. In all ground three is not made out.

Conclusion

1. There is no jurisdictional error apparent in the Tribunal’s decision.  It is appropriate to dismiss the application.  I will make that order.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 18 June 2020