DAP16 v Minister for Immigration

[2017] FCCA 3126

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAP16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3126

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to request evidence – whether the Tribunal’s decision was affected by bias – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.425

Cases cited:

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

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

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909; [2003] HCA 60

Applicant: DAP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2822 of 2016

Judgment of: Judge Smith

Hearing date: 13 November 2017

Date of Last Submission: 13 November 2017

Delivered at: Sydney

Delivered on: 13 November 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr J Pinder, Minter Ellison

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2822 of 2016

DAP16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

Background

1. The applicant is a citizen of Malaysia who arrived in Australia on 5 August 2011.  On 21 April 2015, he made an application for a protection visa.  In essence, that application was based upon a claim that the applicant feared harm because of his relationship with the ex-wife of a Malaysian gangster.  On 22 January 2016, a delegate of the Minister made a decision to refuse to grant the applicant a visa. 

2. The applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision.  The applicant attended a hearing conducted by the Tribunal on 14 September 2016.  It will be necessary to return to what occurred at that hearing in due course.  Two days later, on 16 September 2016, the Tribunal made a decision to affirm the delegate’s decision. 

Tribunal’s decision

1. The findings made by the Tribunal are set out in [14] to [15] of the Minister’s written submissions, which I set out below:

   14.The Tribunal did not accept that the applicant left Malaysia because a gang member was trying to harm or kill him for the following reasons (CB107-108 at [30]):

   (a)the applicant provided an unsatisfactory account of his efforts to find out about the ex-wife’s disappearance;

   (b)the applicant did not provide medical evidence to support his claims to have been bashed despite indicating that these documents may be available in Malaysia;

   (c)while the applicant claimed that his passport photo revealed some of his injuries as this was taken shortly after the second attack, the Tribunal considered this photo to have little probative value as the photo could not establish the nature of the applicant’s injuries or by whom they were inflicted;

   (d)the applicant’s delay in seeking protection and his reasons for what prompted him to apply for protection in April 2015; and

   (e)the applicant’s implausible claim that a Malaysian man informed him that he was still at risk. The Tribunal found that this claim was fabricated in order to bolster the applicant’s protection claims.

   15.The Tribunal rejected the entirety of the applicant’s material claims at a factual level, and, as such, was not satisfied that he was a person in respect of whom Australia has protection claims on the basis of either the refugee or complementary protection criteria (CB108-109 at [36] to [40]).

Consideration

1. The applicant now seeks judicial review of the Tribunal’s decision.  His application, which is written in English, has two grounds.

First ground

1. The first ground is that the Tribunal did not ask the applicant to provide evidence to support his claims, although he was willing to provide such evidence. The applicant, who appeared in person today, did not make any submissions in support of that ground; however, I assume that he is referring to what is set out at [22] of the Tribunal’s reasons, as well as the latter half of the third dot point in [30].

2. In [22] of its reasons, the Tribunal noted that it had asked at the hearing whether the applicant had any supporting documentation.  The applicant replied that he had left his hospital and medical papers in Malaysia but might be able to ask his family members to send them, if needed.  It is clear that the Tribunal did not take any steps, either to request those materials from the applicant himself or to allow the applicant to obtain them and did so, essentially, because it was of the view that such records would not assist it.

3. At [30] of its reasons, the Tribunal explains that there was nothing to suggest, even if the medical reports did refer to an assault, that they would identify the perpetrators  or any ongoing risks. In my view, there was no error in the conduct by the Tribunal in this respect.  It is not a matter for the Tribunal, as it exercises its inquisitorial role, to prompt or elicit information or supporting information from the applicant: see, for example, Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 77 ALJR 1909 at [58]; [2003] HCA 60.

4. The Tribunal had a rational basis for its decision not to exercise its power to obtain further information.  There is no other apparent basis for any conclusion that there was a jurisdictional error in its failure to do so.  The first ground is rejected.

Second ground

1. The second ground of the application is that the Tribunal considered the applicant’s case with bias, doubted his credibility without sufficient grounds and that some of its reasoning did not seem proper.

2. At the hearing today, the applicant addressed this ground and said that during the hearing the Tribunal said to him words to the effect “that people like you are using such grounds to enable you to stay here”.  There was no evidence to support the assertion that the Tribunal said those words, but in my view, even if the Tribunal had said those words, they would not be sufficient to support a ground that the Tribunal was biased.

3. In order to establish that the Tribunal was biased, the applicant must show that it had so prejudged the matter that it was unable or unwilling to change its mind, regardless of the evidence put before it: see Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17. It is part of the Tribunal’s role, and duty, in a hearing conducted pursuant to s.425 of the Migration Act 1958 (Cth) (Act), to give the applicant the opportunity to address the issues that arise in relation to the decision under review.  Clearly enough, one of those issues, in applications for protection visas, is very often the question of credibility of an applicant for protection. 

4. It is critical to an applicant’s case that his or her claims be accepted in the first instance on a factual basis.  If they are not, then they are less than likely to succeed.  However, if they are accepted, then that is at least a positive step towards a successful review of the delegate’s decision.  If it were accepted that the Tribunal said words to the effect of what the applicant now says that it said at the hearing, they would go no further in my view than suggesting that the Tribunal was indicating to the applicant that it had formed a view about his credibility.  That is, that having read the material on the papers, it was not satisfied of the truth of his claims and by raising its doubts it was giving the applicant the opportunity to give evidence and present arguments that might change its mind about that issue.

5. There is nothing in the material before the Court that indicates that the Tribunal was unwilling or unable to change that preliminary view, regardless of the evidence.  For those reasons, the argument raised today is rejected.  The suggestion that the Tribunal lacked sufficient grounds or had improper reasoning in respect of the applicant’s credibility is also rejected.  

6. Firstly, it is a rare case in which the reasons for a decision of a Tribunal would be sufficient to justify a conclusion that the Tribunal was biased and that the reasons for a decision were unnecessarily written down at a time when the Tribunal had already made up its mind. 

7. Secondly, [29] to [30] of the Tribunal’s reasons reveal that contrary to the applicant’s suggestion in the second ground, the Tribunal did have a rational basis for its disbelief of the applicant’s claims. It summarised that basis as being numerous instances where there were inconsistencies or gaps in the applicant’s evidence, and the fact that the applicant was unable to provide relevant context and supplementary details in respect of his claims. For those reasons, I reject the ground that the Tribunal was biased.

8. I would add that there is nothing in the material that would support a claim for a reasonable apprehension of bias, even though that was not a ground relied upon by the applicant. In respect of what the applicant says the Tribunal told him at the hearing, once the statutory duty under s.425 of the Act is properly understood, a reasonable person would not apprehend that the Tribunal might have made up its mind.

9. As for the reasons of the Tribunal, it is not permissible to have regard to them in respect of a reasonable apprehension of bias, because to do so, would be to confuse or conflate that possibility with an allegation of actual bias: see Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48.

10. Otherwise, I have read the Tribunal’s reasons and the material that was before the Tribunal and am not satisfied that there is any jurisdictional error in its decision. 

Conclusion

1. For those reasons, the application has been dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       13 December 2017