CXH16 v Minister for Immigration and Anor
[2018] FCCA 294
•19 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CXH16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 294 |
| Catchwords: MIGRATION – Application under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) to dismiss an application for judicial review of a decision of the Administrative Appeals Tribunal – whether applicant has raised an arguable case for the relief she seeks – no arguable case for relief raised – application dismissed. |
| Legislation: Evidence Act 1995 (Cth), s.161 Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth), ss.5J(1), 36(2)(a), 36(2)(aa), 425(1), 425A(1), 426A(1A), 441A(5), 441C(5), 477C(5) |
| Cases cited: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 MZZVW v Minister for Immigration and Border Protection [2015] FCA 128 |
| Applicant: | CXH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2729 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 8 February 2018 |
| Date of Last Submission: | 8 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 19 February 2018 |
REPRESENTATION
| Applicant in person assisted by an interpreter |
| Solicitors for the First Respondent: | Ms K Evans of Mills Oakley Lawyers |
ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2729 of 2016
| CXH16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first respondent (Minister) seeks an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules) that the application be dismissed because it does not raise an arguable case for the relief it seeks.
By that application the applicant applies for judicial review of a decision by the second respondent (Tribunal) affirming the decision of the delegate of the Minister not to grant the applicant a Protection (Class XA) visa (Protection visa).
Background
The applicant is a citizen of Malaysia. She arrived in Australia as the holder of a Subclass 601 (Electronic Travel Authority) visa on 16 March 2015. On 1 June 2015 the applicant was granted a Tourist visa in Australia which was valid until 15 September 2015. On 14 September 2015 the applicant applied for a Protection visa.[1]
[1] CB63
The applicant’s claims for protection can be summarised as follows:[2]
[2] CB30-32
a)The applicant came to Australia to work because some creditors are “after” the applicant after she agreed to be the guarantor for a friend.
b)Recently some people came to the applicant’s house and disturbed her family.
c)The applicant’s friend disappeared “after paying for some time”.
d)The creditors have also attended the applicant’s work place and disturbed her and threatened to harm her family if the applicant does not repay her friend’s loan.
e)The applicant has unsuccessfully attempted to contact the friend, who the applicant thinks has gone into hiding.
f)The debt owed is now the applicant’s problem.
g)The applicant has “promised to pay them back slowly” but the applicant remains fearful for her family’s safety.
h)The applicant does not know who to ask for help and is fearful that even if she goes to the police that her and her family’s safety will be put in danger and that the police will take no further action.
i)If she were to return to Malaysia the applicant fears the creditors will harm or torture her to force her to pay back the money.
Proceedings before the Tribunal
The applicant lodged her application for review to the Tribunal on 16 February 2016. In the section of the application the applicant completed and lodged with the Tribunal titled “Where do you want us to send correspondence about your application”, the applicant indicated she agreed to the Tribunal sending all correspondence to the applicant by email; and the applicant specified her email address (applicant’s email address).[3]
[3] CB80
There is in evidence a copy of an email (copy email) which represents that on 17 August 2016 the Tribunal sent the email evidenced by the copy email (Email) to the applicant’s email address with an attachment.[4] There is also in evidence a letter dated 17 August 2016 addressed to the applicant that also includes the applicant’s email address (Invitation Letter).[5] The Invitation Letter invited the applicant to appear before the Tribunal on 14 September 2016 to give evidence and present arguments. The Tribunal stated that it had considered the material that was before it but was unable to make a favourable decision on that material alone.
[4] CB87
[5] CB88
The Tribunal issued the Invitation Letter pursuant to s.425(1) of the Migration Act 1958 (Cth) (Act). Under s.425A(1) of the Act the Tribunal was required to give to the applicant notice of the day on which, and the time and place at which, the applicant was scheduled to appear. Under s.425A(2) of the Act, the Tribunal was required to give the applicant the notice required by s.425A(1) of the Act by one of the methods specified in s.441A of the Act. One of those methods is that specified by s.441A(5)(b), namely, by transmitting the notice by email to the last email address the applicant provided to the Tribunal. Under s.441C(5) of the Act, if the Tribunal gives a notice to an applicant by email to the last email address the applicant provided to the Tribunal, the applicant is taken to have received the notice at the end of the day on which the email was sent.
The Tribunal received no response to the Invitation Letter, and the applicant did not attend before the Tribunal at the time and date she was scheduled to appear, and the applicant failed to contact the Tribunal to seek a postponement of the hearing or to provide any reason why she could not attend at the scheduled time and date. In those circumstances, it was open to the Tribunal to do one of the two things provided for by s.426A(1A) of the Act. One of these was for it to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. The Tribunal decided to make a decision on the review without taking any further action to enable the applicant to appear before it.[6]
[6] CB95, [12]-[13]
Tribunal’s reasons
The Tribunal set out the applicant’s claims for protection and identified the material that was before it. That consisted of the applicant’s Protection visa application which included the applicant’s written statement for claiming protection,[7] the delegate’s decision record, and the applicant’s application for review.[8] The Tribunal then referred to its having written to the applicant on 17 August 2016 and to its not having received a response, and to its having resolved pursuant to s.426A of the Act to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
[7] That is to be found in CB39
[8] CB95, [11]
The Tribunal noted it had before it only the brief statement of claim the applicant provided in her Protection visa application which it found was “somewhat vague, and lacking in detail in significant respects”. The Tribunal also noted that the applicant’s appearance at the hearing would have been an opportunity to address the various gaps, and to provide further information and details. The Tribunal then identified the claims about which there were insufficient details. These were:
a)details of the loan contract in which the applicant acted as guarantor for her friend’s loan, and in particular, when the loan was made, the identity of the creditors, the applicant’s financial situation and the relationship with her friend, and whether there was any documentary or other evidence of the loan contract;
b)details and an update on the friend’s disappearance, including the applicant’s efforts to contact her;
c)particulars of the creditors’ approaches to the applicant;
d)the applicant’s promises to the creditors to pay them back;
e)details of the applicant’s request for police assistance;
f)whether there have been any further developments in relation to the friend, her family or the applicant’s family since the applicant’s departure from Malaysia;
g)whether the applicant has paid back any or all of her friend’s debts since coming to Australia; and
h)whether the applicant continues to fear that the creditors will torture or otherwise harm her.[9]
[9] CB95-96, [14]
The Tribunal concluded that on the limited material available to it the Tribunal was not satisfied the applicant ever suffered harm in Malaysia from money lenders or anyone else and, was not satisfied the applicant faces a real chance of harm from her friend’s unpaid creditors or anyone else in the future. The Tribunal therefore was not satisfied the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1) of the Act should she return to Malaysia and therefore was not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
The Tribunal also considered whether the applicant satisfied the complementary protection criterion as contained in s.36(2)(aa) of the Act but was not so satisfied in light of the information before the Tribunal and its previous findings of fact.
Judicial review hearing
The applicant, who is not legally represented, did not appear to have any significant knowledge of the grounds contained in her application. The applicant informed me that her “agent” prepared the application. She provided to me the address, business name, and email address of the “agent’. There is nothing to suggest the “agent” was a lawyer or even a registered migration agent. Whether or not the conduct of the “agent” in this particular case is something that should be referred for investigation by the relevant authorities is a matter for the Minister to determine.
In any event, the only substantive submission the applicant made was that she did not receive the Invitation Letter. That is so even though she accepts she received the email the Tribunal sent on 17 February 2016 acknowledging her application for review to the Tribunal,[10] and the email the Tribunal sent on 16 September 2016 notifying her of the Tribunal’s decision to affirm the delegate’s decision.[11] The applicant did not include as one of her grounds of application that she did not receive the Invitation Letter.
[10] CB84
[11] CB91
After the applicant asserted she did not receive the Invitation Letter, and anticipating the submissions Ms Evans, who appeared for the Minister, would make, I proposed to deal with the applicant’s assertion she did not receive the Invitation Letter on the assumption that what she asserted is true, but that if that assumption would prejudice the Minister I would give the Minister an opportunity to test the truth of the assertion in a subsequent hearing. Although I did not so express it, what I had in mind was that I would make directions that would include directions that the applicant put on evidence to support her assertion she did not receive the Invitation Letter and set the matter down for further hearing to give the Minister an opportunity to test the applicant’s evidence by cross-examination.
In these reasons for judgment, therefore, I will first consider whether the applicant has an arguable case she did not receive the Invitation Letter. I will then consider the grounds stated in the application filed with the Court.
Did the applicant receive the Invitation Letter?
I have already set out the evidence relating to the Email. The question is whether, given that evidence, there is an arguable case the Invitation Letter was not transmitted to the applicant within the meaning of s.441A(5) of the Act; and by “transmitted”, I mean “sent”. [12]
[12] Tsimperlenios v Minister for Immigration and Border Protection [2018] FCA 229 at [25]
In determining that question s.161 of the Evidence Act 1995 (Cth) (Evidence Act) is relevant:
If a document purports to contain a record of an electronic communication other than one referred to in section 162 [referring to lettergrams and telegrams], it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication:
(a)was sent or made in the form of electronic communication that appears from the document to have been the form by which it was sent or made; and
(b)was sent or made by or on behalf of the person by or on whose behalf it appears from the document to have been sent or made; and
(c)was sent or made on the day on which, at the time at which and from the place from which it appears from the document to have been sent or made; and
(d)was received at the destination to which it appears from the document to have been sent; and
(e)if it appears from the document that the sending of the communication concluded at a particular time—was received at that destination at that time.
Given the means by which emails are transmitted,[13] an intended recipient’s evidence that he or she did not receive an email is insufficient to contradict or undermine evidence that an email has been sent. Thus, even if (as I assume for the purpose of this application is the case) the applicant did not receive the Email, it would not be arguable that the presumptions provided for by s.161 of the Evidence Act do not apply. It is not arguable, therefore, that the Email was not sent to the email address specified in the copy email at the time and date on which the copy email represents the Email was sent; that the address to which the copy email represents the Email was sent is the email address the applicant specified in her application to the Tribunal; and that, because of s.477C(5) of the Act, the applicant is taken to have received the Email on the day the copy email represents the Email was sent, namely, on 17 August 2016. It is also not arguable that the Invitation Letter was not attached to the Email, even though the copy email does no more than refer to “attached correspondence”. Next to the word “Attachments” in the copy email there is inserted numbers and three letters; and the Invitation Letter itself contains the applicant’s email address.
[13] Tsimperlenios v Minister for Immigration and Border Protection [2018] FCA 229 at [29]-[37]
It follows, therefore, that the applicant’s claim that she did not receive the Invitation Letter does not raise an arguable case that the Tribunal made a jurisdictional error.
Grounds of application
In an attachment to her application the applicant makes submissions under both the headings “Orders Sought by Applicant” and “The Grounds of the Application are”. I will consider each of the statements contained under both heading.
The first statement is as follows (errors in original):
I don’t think DIBP and AAT’s decision are fair and reasonable as they never consider my case with proper investigation which is necessary. The real situation in my origin is challenging, and I am pretty sure that I will be fall into a big risk if return or being repatriated to Malaysia. What is worse, I will become a victim being discriminated and vulnerable in seeking a safety as the local police are unwilling to offer me any helps.
This statement may be taken to make three claims. One is that the Tribunal failed to undertake investigations for the purpose of assessing the applicant’s claims. To the extent the applicant intends to make such claim, it is not arguable. The Tribunal is under no duty to undertake any inquiries beyond making an inquiry about a critical fact, the existence of which is easily ascertained.[14] An applicant before the Tribunal is responsible for presenting material to the Tribunal. As was noted by Gilmour J in MZZVW v Minister for Immigration and Border Protection:[15]
[I]t is well established that there is no general duty upon the Tribunal to make inquiries; rather, it is for the applicant to make out his case before the Tribunal. If the Tribunal cannot be satisfied on the basis of the material presented that his claims are genuine it does not have any duty to make further inquiries . . .
[14] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25]
[15] [2015] FCA 128 at [29] referring to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224 at [43] per Gleeson CJ, Gummow and Hayne JJ; cf Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 at [60]-[67], SZJBA v Minister for Immigration and Citizenship (2007) 164 FCR 14 at [46].
The second claim the applicant may be taken to make is that the Tribunal did not properly consider the material before it. To the extent the applicant intends to make such claim it, too, is not arguable. The Tribunal identified the material that was before it, and, for reasons that were reasonably open to it, concluded the material lacked such details so as to prevent it from being satisfied of the existence of the matters the applicant claimed.
The third claim the applicant may be taken to make is that the Tribunal incorrectly concluded the applicant did not face risk of harm if she were returned to Malaysia. This raises no arguable case of jurisdictional error because it goes no further than expressing disagreement with the Tribunal’s decision, and contends that the applicant faces the risk of harm if she returns to Malaysia. That is an appeal to the merits of the applicant’s claims for protection, which is a matter this Court has no jurisdiction to consider or determine.
The second statement contained in the application for review is as follows:
AAT did not consider my statement and judge my fears simply by given prejudice.
This makes two claims. The first is that the Tribunal did not consider the applicant’s statement, by which I understand the applicant intends to refer to the statements she made in her application for a Protection visa. This claim is not arguable. The Tribunal identified and considered the applicant’s statements. The second claim is that the Tribunal was biased. This too is not arguable. The only apparent basis for the claim the Tribunal was biased is that it did not accept the applicant’s claims.
The third statement is:
AAT failed to prudently consider me as a minority Chinese ethnic group in Malaysia, in which situation I am weak in seeking protection from the government.
This is not arguable. The Tribunal was aware the applicant was of Chinese ethnicity. The applicant’s claims for protection, however, are incapable of being reasonably interpreted as claiming fear of harm based on her Chinese ethnicity alone. The applicant’s claims for protection could only reasonably have been interpreted as having been based on her claims that she had guaranteed a loan given to her friend. Further, although the applicant claimed that she went to the police to make a complaint “about the debtor’s” (sic), but that “nothing so far happen so far”,[16] the applicant did not claim that the police took no action because she was ethnically Chinese.
[16] CB30
The last three statements can be treated as together. They are as follows (errors in original):
1, As a Chinese Malaysian I have become a victim and being targeted by local loan shark in Malaysia. I am innocent in such tragedy. I will be in great danger and harm if return to my origin as the local government unwilling to protect me.
2, I was in fact signed as guarantor for a loan taken out by a friend of mine who disappeared and left me in uncertainty and danger.
3, I have been constantly harassed and chased in Malaysia and couldn’t live a secured life. My effort in seeking a protection by local police failed and I have no more choice but to escape for my security and wellbeing.
These statements repeat the substance of the claims for protection the applicant made in her Protection visa application; and are an appeal to the merits of those claims. They raise no arguable case of jurisdictional error because this Court does not have jurisdiction to consider the merits of an applicant’s claims for protection.
Conclusion and disposition
I am satisfied the applicant has no arguable case for the relief she seeks. I propose, therefore, to order that the application be dismissed pursuant to r.44.12(1)(a) of the FCC Rules.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 19 February 2018
9
4