CZW17 v Minister for Immigration

[2019] FCCA 2427

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZW17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2427

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – protection visa – legal unreasonableness – procedural fairness – no error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36(2)(a), 36(2)(aa), 65, 474
Migration Regulations 1994 (Cth), Schedule 2

Cases cited:
Craig v South Australia (1995) 184 CLR 163
Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZNXA v Minister for Immigration & Citizenship [2010] FCA 775

Applicant: CZW17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 270 of 2017

Judgment of: Judge Brown

Hearing date: 28 August 2019

Date of Last Submission: 28 August 2019

Delivered at: Adelaide

Delivered on: 30 August 2019

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: Not applicable

Counsel for the First Respondent: Mr Retallick

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application filed 5 July 2017 be dismissed.

2. The applicant pay the First Respondent’s costs filed in the sum of three thousand seven hundred dollars only $3,700.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 270 of 2017

CZW17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant in these proceedings seeks judicial review of a decision of the Administrative Appeals Tribunal[1] not to grant him a protection visa pursuant to the provisions of the Migration Act 1958.[2]

   [1]  Hereinafter referred to as “the AAT” or “the Tribunal”

   [2]  Hereinafter referred to as “the Act”

2. The relevant decision was made on 7 June 2017.  The application for review was filed, in this court, on 5 July 2017.  Accordingly, it is within time. 

3. The applicant has acted on his own behalf throughout the proceedings and prepared his own ground of review and supporting affidavit.  He seeks an order that the relevant decision of the AAT be quashed. 

4. The ground of his application asserts a jurisdictional error, on the following ground:

   “I didn’t have interpreter while I filled in form so bit of mistake in the immigration form but tribunal did not give me chance to tell everything.  They ask me if I have good job in Malaysia and I said I donot have that is truth.  I told tribunal I am not political activist but I was against the government policies and corruption so they are hard on me.  Also the moneylenders who are close to government blackmailed me.  Free voice is suppressed.  I feel tribunal did not understand what I want to explain they just ask me question and I answer for it.  I do not get opportunity to explain whole scenario and was just answering tribunal.”

5. On its face, although the claim is not particularised, it would appear to be a claim that the proceedings before the Tribunal were vitiated by procedural unfairness in some way on the basis that the applicant did not receive an adequate opportunity to present his claim for asylum. 

6. In support of his application, the applicant has deposed an affidavit in similar terms.  He has not provided a transcript of the proceedings before the AAT and so is not able to point to any specific examples of what he asserts is unfairness accorded to him during the hearing process. 

7. As at the Tribunal hearing, on 1 June 2017, the applicant attended court to represent himself.  He was provided with an interpreter.  It is apparent that the applicant speaks some English, but is far from fluent in that language.  His first language is Malay. 

8. In answer to questions from me, the applicant conceded that he had been invited to appear before the Tribunal and had been given an opportunity to provide evidence to it.  Candidly, he also indicated that his chief complaint in respect of the Tribunal decision was that he had not been able to achieve his desired outcome, which was to obtain a visa to remain in Australia, with his wife and children, who were born in this country.

9. Jurisdictional error is a difficult concept to explain to any non-lawyer.  It is not my function to undertake a merits review of the decision of the Tribunal, which would be constituted by hearing the evidence again and reaching my conclusions in respect of it. 

10. My authority to intervene in the case only arises if some jurisdictional error can be demonstrated in the manner in which the challenged decision-maker reached his decision.  I will endeavour to explain, in general terms, in due course, what is meant by jurisdictional error.

11. For the reasons which follow, I am firmly of the view that the applicant is not in a position to demonstrate such an error and that therefore the decision of the Tribunal should be affirmed and the application for review dismissed.

Background

1. The applicant is a citizen of Malaysia.  He arrived in Australia, on 5 March 2016, pursuant to an electronic travel authority, which expired on 5 June 2016.  In general terms, this kind of visa authorises its holders to remain in Australia for short periods of time, up to three months in duration.

2. On 3 June 2016, the applicant applied for a protection visa under the provisions of section 35A of the Act.  The reason, which he provided for seeking the protection of Australia, was as follows:

   “As a citizen of Malaysia, I expressed concern over the political, economic & social development in the country.  Therefore we of student of public institutions has attracted the attention of Malaysian against damage that been done to the country under the administration of Prime Minister Najib Run Razak. This is because he believes that cash can ensure his position as Prime Minister, he believes that money is everything.  Today image is very bad Malaysia.  The right to freedom of expression was block, people live in fear of arrest and in detention.  Right enshrined in the federal constitution no longer carries any meaning.  Im with some friends activist who actively protest against the government cases interrupted, the lock-up & at blackmail over time because our struggle to dismantle cases of IMDM corruption.  Before something worse happened, I decide to free from the threat of the country Australia.”[3]

   [3]  See Casebook at [40]

3. In addition, the applicant claimed that if he returned to Malaysia, he would be liable to be imprisoned, by the Malaysian authorities, presumably on the basis of his opposition to the actions of the current Malaysian government.

4. On 8 September 2016, a delegate of the Minister for Immigration & Border Protection[4] declined to grant the protection visa sought.  The delegate summarised the applicant’s claims for protection in the following terms:

   ·He was a citizen of Malaysia, who had expressed concern over the political, economic and social development of his country;

   ·Freedom of expression was curbed in his country and people lived in fear of detention and arrest there;

   ·He had actively protested against the government and had been penalised by it;

   ·Against this background, he had come to Australia because he feared that he would be imprisoned, in Malaysia, if he remained there; and

   ·He was part of the hard core opposition to the government.

   [4]  As the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs was previously known

5. The delegate did not accept that the applicant was the subject of any adverse interest from the Malaysian authorities.  The delegate considered that the applicant’s evidence, in respect of his political activities, in Malaysia, was vague in detail and absent any evidentiary support.  As such, it was not considered that he was at risk of harm, if returned to Malaysia, because of his political activities there or for any other reason.[5]

   [5]  Ibid at [72]

6. As a consequence of this decision, the applicant applied for a further merits review in the AAT on 5 October 2016.  On 8 May 2017, pursuant to the provisions of section 360 of the Act, the applicant was invited to attend upon the Tribunal to give evidence and present arguments relating to the issues arising in his case.  As previously indicated, the applicant took up that invitation and was provided with an interpreter to assist him in the presentation of his case. 

7. As detailed above, the applicant is not in a position to provide me with a transcript of what happened at the hearing and so point to any specific unfairness in the Tribunal’s proceedings. 

8. In these circumstances, I am left with the decision of the Tribunal itself, as well as the applicant’s own submissions to me in the current proceedings, to determine whether the Tribunal’s jurisdiction miscarried as a consequence of the manner in which it conducted the hearing before it.

9. In this context, the Tribunal decision indicates that the applicant was asked to explain what he feared would happen to him, if he returned to Malaysia.  The decision indicates that the applicant said that he had no idea and later, when asked for clarification, the applicant indicated to the Tribunal that he wanted to have a better life and find work to support his family.[6] 

   [6]  Ibid at 100 [20]

10. In addition, the Tribunal decision indicates that the applicant said that he had no involvement in politics in Malaysia and had never been arrested or detained there.  On this basis, the Tribunal made the following findings of fact:

    “Having questioned the applicant at the hearing and heard his evidence the Tribunal does not accept his written claims. The Tribunal finds that the applicant is not a political activist. He is not a member of any political party. He has not taken part in any anti-government protests and is not a person of interest to the authorities or the government of Malaysia. He has never been threatened, arrested, detained or imprisoned in Malaysia.

    The Tribunal does not accept that there is any evidence to support the claim that he will be imprisoned or face serious harm if he returns to Malaysia.

    The Tribunal finds that the applicant travelled to Australia because he was dissatisfied with his personal economic situation in Malaysia. He travelled to Australia to secure employment and higher wages so that he can provide a better future for his family.

    Looking into the foreseeable future, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm if he returns to Malaysia for reasons of his race, religion, nationality, membership of a particular social group or political opinion. His fear of persecution is not well-founded.”[7]

    [7]  See Casebook at [25] – [28]

11. On this basis, the Tribunal confirmed the decision of the delegate not to grant the applicant a protection visa.  It reached the view that the applicant did not have a well-founded fear of persecution because there was not a real chance he would suffer serious harm, if he returned to Malaysia. 

The applicable legal framework under the Act

1. Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.

2. In respect of a protection visa, the criteria required to be satisfied are set out in Schedule 2 to the Migration Regulations 1994. In general terms, any applicant is required to satisfy the primary criterion contained in section 36(2)(a) or (aa) of the Act.

3. Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and therefore owed protective obligations by Australia.  The expression refugee is defined in section 5H and provides a person is a refugee if that person:

   “in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-found fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;”

4. The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:

   ·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   ·being subject to a real chance of being persecuted for one of these reasons, if returned from Australia; and

   ·the persecution in question would involve the applicant suffering serious harm.

5. Pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm. 

6. This is known as the complementary protection criterion.  It codifies Australia’s international treaty obligations not to subject a person to the risk of non-refoulement – that is the risk of suffering persecution if returned to a particular country.

7. Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision.  As such, it cannot be challenged in any court.  The current decision, arising in this case, is a privative clause decision.

8. However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.[8]

   [8]  See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

9. In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[9]

   [9]  See Craig v South Australia (1995) 184 CLR 163

10. In addition, in certain circumstances, a Tribunal may fail to discharge the jurisdiction conferred upon it, if it is established that it has acted in a manner which is legally unreasonable.  Legal unreasonableness is a broad concept but usually is confined to two major categories.

11. Firstly, it can be characterised by a level of illogicality or intelligibility, which attaches to the process of reasoning, adopted by the Tribunal in question, leading the decision being able to be characterised as nugatory. 

12. Secondly, it can also consist of some species of procedural unfairness, which renders the decision unreasonable in some way, as it can be characterised as being arbitrary or capricious, in some way, which is contrary to considerations of fairness.  The court has a supervisory jurisdiction in respect of both such issues and so the authority to intervene in respect of the original decision. 

13. Essentially, in conducting this supervisory jurisdiction, over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all, as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.

14. In order to be successful in his application for review, it will be necessary for the applicant to demonstrate such an error of jurisdiction arising in the decision of the AAT.  This court is not able to substitute its own decision for that of the Tribunal.  Nor is it the responsibility of this court to mount any challenge to the decision, on behalf of the applicant, which does not arise from his application.

15. At least, at first blush, the applicant has sought to challenge the Tribunal’s decision on the basis of some species of legal unreasonableness, which relates to how the hearing itself was conducted.  However, in his submissions to the court, he made submissions which amount to an application for merits review.  As indicated, the court is not authorised to conduct such a merits review. 

Conclusion

1. In this particular case, the Tribunal considered the applicant’s written submission and then compared it with the actual evidence provided by him at hearing.  It found that his initial claim for asylum was not consistent with his evidence regarding his actual motivation for coming to this country. 

2. In my view, this finding was clearly open to the Tribunal and consistent with the applicant’s own evidence.   In his own testimony, the applicant indicated he had come to Australia for financial betterment.  Clearly, this is not a ground arising under section 36 of the Act.

3. During his further submissions to the court, in the current proceedings, the applicant was not able to identify any other aspect of jurisdictional error.  In particular, he was not able to point to any legal error in the manner in which the Tribunal applied the real chance test, as stipulated by section 5J of the Act.

4. Essentially, the jurisdictional task for the Tribunal was to determine, on the evidence before it, whether there was a real chance that the applicant would be subject to persecution, if he was returned to Malaysia, on the basis of his political opinions or those imputed to him by the Malaysian authorities. 

5. The Tribunal found that the applicant had come to Australia, on a short term visa, because he wanted to advance his financial circumstances in this country.  In my view, this finding was clearly open to it.

6. In addition, the Tribunal considered Australia’s complimentary protection obligations to Australia.  Given its finding that the applicant did not have a political profile in Malaysia, it considered there was no real risk that he would suffer significant harm, if returned to that country.

7. I am satisfied that the proceedings before the Tribunal were procedurally fair and cannot be characterised as being vitiated by any aspect of caprice or arbitrariness.  The applicant was able to present his case and had an interpreter to do so.  His written application that the proceedings were unfair because he was not given sufficient opportunity to put his case or aspects of it is an assertion without any evidentiary basis.

8. In the current matter, the applicant’s claims of procedural fairness are un-particularised and moreover not actively pursued at hearing before me. The un-particularised nature of the grounds of review present difficulties for the court in conducting its task of judicial review. 

9. As Reeves J observed in SZNXA v Minister for Immigration & Citizenship [10] formulaic or generic grounds of review do not allow a reviewing court to assess whether the errors generally asserted were actually committed by the primary decision maker and, as such, form a basis for the dismissal of the application concerned.

   [10]  SZNXA v Minister for Immigration & Citizenship [2010] FCA 775 at [20] – [21]

10. For obvious reasons, it is not sufficient for an applicant to assert some form of procedural unfairness, in general terms, in an application for review.  More must be done before the court can entertain such applications. 

11. The applicant has not been able to specify, with any clarity, what is the jurisdictional error of which he complains, other than he asserts that another decision would have been preferable to him.

12. In these circumstances, in my view, no jurisdictional error has been demonstrated.  In these circumstances, the application for review must be dismissed.

13. The Minister seeks costs.  His representative, Mr Retallick accepts that this was not a complicated matter and therefore an order for a significantly lesser sum than that which is ordinarily allowed by the applicable schedule of costs should be made.

1. The Minister seeks costs in the sum of $3,700.00.  I will make an order for costs in such an amount.

2. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:  30 August 2019