CWR17 v Minister for Immigration

[2018] FCCA 1554

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWR17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1554

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)

Cases cited:

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

Applicant: CWR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2055 of 2017

Judgment of: Judge Driver

Hearing date: 14 June 2018

Delivered at: Sydney

Delivered on: 14 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J Lambe 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 2055 of 2017

CWR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 19 June 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 4 June 2018. 

3. On 5 March 2016 the applicant, a male citizen of Malaysia, arrived in Australia as the holder of a tourist visa.  On 18 May 2016 the applicant and his partner applied for protection visas.[1]  The applicant's partner had arrived in Australia as the holder of a tourist visa on 28 January 2016.

   [1] Court Book (CB) 1

4. In their respective Statutory Declarations dated 16 May 2016 (and filed with their joint protection visa application) the applicant and his partner alleged that they were in a homosexual relationship and that their lives were at risk in Malaysia owing to their sexual orientation.[2]  The statutory declarations noted that Malaysian law treats homosexual sex as a criminal act.  They contended that they had been in a relationship since 26 February 2015, and that they had been tortured, beaten and injured by gangsters.  They further claimed that they feared being threatened and reported by their friends and family to the police.

   [2] CB 39, 67

5. On 8 July 2016, the delegate refused the applicant and his partner's protection visa application.[3]  The delegate accepted that the applicant is homosexual and for this reason had a subjective fear of discrimination from his father, the Malaysian community and Malaysian authorities.  The delegate also accepted that the applicant and his partner “may have been assaulted by thugs sometime in 2015 in Penang”.[4]  However, the delegate expressed doubts about the applicant's credibility[5] and ultimately found, on the basis of country information, that the applicant's subjective fear of persecution was not well-founded.  The delegate also found that the applicant did not meet the complementary protection criterion.

   [3] CB 61

   [4] CB 177

   [5] CB 177

Tribunal decision

1. On 23 July 2016 the applicant applied to the Tribunal for review of the delegate's decision.  The applicant was invited to attend a hearing, which he did, on 1 June 2017.  That hearing was adjourned and then resumed on 13 June 2017.  At the hearing, the Tribunal indicated to the applicant that his claims were identical to claims made in another case before it and told the applicant that this was relevant to its review of his case because it went to the credibility of his claims.[6]  The applicant elected to respond to the information at the hearing and said he did not know why the claims were identical and that a lawyer had helped him and his partner to apply for the protection visa.[7]

   [6] CB at 225, [21]-[29]

   [7] [30]

2. Ultimately, the Tribunal found that the applicant was not a credible witness and that the claim about being in a homosexual relationship was made solely to enable the applicant to stay in Australia.[8]  Accordingly, it was not satisfied that that there was a real chance that the applicant would be persecuted for reason of his membership of a particular social group, nor that any fears the applicant might have in this respect were well-founded.[9]  It also found that the applicant did not meet the complementary protection criterion.[10]

   [8] [33]

   [9] [62]

   [10] [69]

The present proceedings

1. These proceedings began with a show cause application filed on 29 June 2017.  The applicant continues to rely upon that application.  The grounds in it are. 

   1.The decision was made without further consideration

   2.It is effected by an error

   3.It is requested to sent my application back to Administrative appeals Tribunal for reconsideration

   (errors in original)

2. The application is supported by a short affidavit filed with it which I received as a submission. 

3. The applicant initially did not recognise the application, but confirmed that the signature on it was his.  It appears that somebody assisted him to complete the form. 

4. I have before me as evidence the court book filed on 22 December 2017. 

5. The applicant was not in court when this matter was due to commence at 9.30am.  The court was, however, successful in contacting the applicant by telephone.  It appears that the applicant attended the Family Court in Goulburn Street in error.  He then made his way to this court which took him about 45 minutes. 

6. I invited oral submissions from the applicant.  He had difficulty both in the English language and in the Bahasa Malaysia language.  He spoke in a combination of both languages, but predominantly in English.  I asked him what he thought was wrong with the Tribunal decision.  He said that he had been helped by a person he described as a lawyer before the Tribunal.  He does not know whether this person, who is apparently female, is qualified or not.  He has lost contact with her.  The applicant asserts (as I understood him) that the claims which the Tribunal found were effectively identical to an earlier claim were true, but to the extent that there was any problem it was the fault of the lawyer. 

7. To the extent that the applicant asserts fraud on the part of the person who assisted him, it is possible that the claims for protection were fraudulently made in the sense of being fabricated.  There was, however, no relevant fraud on the Tribunal, because the Tribunal identified the problem.  In short, the Tribunal was not disabled in its review function. 

8. Further, the Tribunal considered the claims notwithstanding its concern over the similarity with an earlier case.  The Tribunal did not find the applicant a credible witness and disbelieved his claims. 

9. Ultimately, the applicant conceded in oral argument that he did not see a problem with the Tribunal decision in a legal sense.  He said that he wishes to remain in Australia and work.  Nothing arises from the oral argument in this case that suggests any arguable case of jurisdictional error by the Tribunal. 

10. I agree with the Minister’s submissions concerning the grounds of review advanced. 

Ground 1

1. On its face, Ground 1 does not articulate a jurisdictional error.  At its highest, it might be considered an allegation that the Tribunal proceeded to decide the matter without giving adequate consideration to the matters before it.  That is, that the Tribunal pre-judged the outcome of the application.  Allegations such as these must be distinctly made and clearly proved.[11]

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

2. The applicant has provided no evidence to substantiate any such allegation and the Tribunal's record tends against proof of his ground.  The applicant was given a hearing over two days (1 June 2017 and 13 June 2017)[12] and the Tribunal gave reasons that ran for nine pages over a week later.  The reasons deal comprehensively with the applicant's claims.  There is nothing to suggest that the Tribunal pre-judged the review or failed to engage with the claims made by the applicant.

   [12] CB 214 and 217

3. Alternatively, Ground 1 might be considered an attempt by the applicant to seek merits review in this Court. Plainly, merits review is outside the scope of this Court's jurisdiction.

Ground 2

1. Ground 2 is a generalised assertion of error with no particulars.  The applicant, by order 2 of Registrar Morgan made on 28 September 2017, was required to file and serve any amended application setting out each ground of review relied upon and complete particulars by 25 January 2018. He has not done so.

Ground 3

1. Ground 3 is a prayer for relief in the nature of writs of certiorari and mandamus.  It is not an assertion of jurisdictional error.

Conclusion

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

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $3,606.  The applicant did not wish to be heard on costs.

3. I will order that the applicant 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-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:     21 June 2018