Daw17 v Minister for Immigration

[2019] FCCA 423

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAW17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 423

Catchwords:
MIGRATION– Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal not to grant to the applicant a protection visa because he did not appear at the scheduled hearing before it – applicant applied for an adjournment of the hearing before the Administrative Appeals Tribunal but it was refused – applicant claims that he was denied procedural fairness by the Administrative Appeals Tribunal by its refusal of his adjournment application and by it failing to consider all of his claims, taking into account irrelevant considerations and not taking into account relevant considerations – decision of Administrative Appeals Tribunal to proceed to dismiss review application in the absence of the applicant under s.426A of the Migration Act 1958 (Cth) did not lack an intelligible justification and was not irrational or legally unreasonable in the circumstances – applicant did not respond to invitation to reinstate his review application no such denial of procedural fairness made out – no jurisdictional error otherwise established – application for judicial review refused.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), s.2A

Migration Act 1958 (Cth), ss.36, 65, 349, 414, 425, 425A, 426A, 427

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

CBN17 v Minister for Immigration and Border Protection [2018] FCA 788
Machmud v Minister for Immigration [2001] 66 ALD 98
Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287
Ponugotti v Minister for Immigration (2015) 144 ALD 365
Sullivan v Department of Transport (1978) 20 ALR 323
SZRRW v Minister for Immigration and Citizenship [2013] FCA 332

Applicant: DAW17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2136 of 2017

Judgment of: Judge Dowdy

Hearing date: 13 March 2018

Delivered at: Sydney

Delivered on: 1 March 2019

REPRESENTATION

The Applicant appeared
in person.

Counsel for the First Respondent: Ms J. Strugnell

Solicitors for the First Respondent: Minter Ellison

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Amended Application filed in this Court on 23 November 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2136 of 2017

DAW17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant is a male citizen of Malaysia aged 25 years, having been born on 8 August 1993.

2. By Amended Application filed in this Court on 23 November 2017, he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 21 June 2017 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 10 March 2017 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa). 

Background

1. The Applicant arrived in Australia on 18 October 2016 on an Electronic Travel Authority (Class UD) (Subclass 601) visa. He then applied for the Protection visa on 22 November 2016.

Claims for Protection

1. In his Protection visa application form the Applicant stated that he could read and write the English language and that he had not received assistance in completing the form. In response to questions 88 to 96 of his Protection visa application, the Applicant made the following factual claims:

   a)he borrowed a big sum of money in Malaysia from a money lender hoping to start a small business, since it was very hard for him to find a job to settle his study loan;

   b)his business was not doing well and he did not have enough money to pay the lender on the date given and that is why he decided to work here in Australia;

   c)the money lender threatened to harm him and his family if he failed to pay them;

   d)he was fearful of his wellbeing and his family safety, particularly that of his mother;

   e)the money lender sent people to threaten him and he was punched in the face and it was said that the same would happen to his family if he failed to make payments on time;

   f)he did not seek help within Malaysia because he was afraid that the matter would escalate;

   g)he tried to move to Kepah and Kuala Lumpur, but couldn’t stand living in hiding and was worried that the money lender would find him;

   h)if he returned to Malaysia without the money to pay the money lender the situation would become worse now that interest on the loan is higher every day and he would definitely be beaten;

   i)he believes that the authorities in Malaysia would not be able to protect him as they would not make his case a priority and it would be a waste of time to ask the authorities to protect him; and

   j)he would not be able to relocate because the money lender operates in a big group and they will find him.

Relevant statutory Criteria for the Grant of a Protection Visa

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

Decision of Delegate

1. The Delegate in the Decision Record of 10 March 2017 found that the Applicant had not claimed to fear harm in Malaysia by reason of his race, religion, nationality, political opinion or as a member of a particular social group and that he was not therefore a refugee for the purposes of the Refugee Convention criterion under s.36(2)(a) of the Migration Act 1958 (Cth) (the Act). For the purposes of the complementary protection criterion the Delegate then considered a body of country information which indicated that the Malaysian authorities were reasonably effective in combating illegal money lending and that the Applicant would receive effective protection in Malaysia against any threats from illegal money lenders or from groups, gangs or anybody else in Malaysia. The Delegate found that the Applicant was not a person with respect to whom Australia had protection obligations under s.36(2)(aa) of the Act.

2. Accordingly, the Delegate refused to grant a Protection visa to the Applicant. 

Tribunal Decision

1. The Applicant lodged an application for merits review with the Tribunal on 20 March 2017 and gave a copy of the Decision Record of the Delegate to the Tribunal.

2. The evidence establishes and I find that by letter dated 22 May 2017 the Tribunal advised the Applicant that it was unable to make a favourable decision on the papers and invited the Applicant to appear at a hearing to give evidence and present arguments on 21 June 2017 at 9:30am. That letter also advised the Applicant that if he was unable to attend the hearing he needed to advise the Tribunal as soon as possible, that the Tribunal would only change the scheduled hearing date if it was satisfied that there was a very good reason for an adjournment and that if an adjournment had not been granted the Applicant must assume that the hearing would go ahead. The letter further advised that if the Applicant did not attend the scheduled hearing the Tribunal might make a decision on the review without taking any further action to allow or enable him to appear (s.425A letter).

3. I note that there is no evidence that the Applicant returned the Response to Hearing Invitation which had been enclosed with the s.425A letter.

4. At 9:58pm on 20 June 2017, the night before the scheduled hearing, the Applicant sent an email to the Tribunal stating:

   I would like to postpone my hearing because I can't get off on that day. Hope you can consider my request and if you don't mind to reschedule back my hearings date.

   (adjournment request email)

5. On 21 June 2017, the day of the scheduled hearing, the Tribunal attempted to contact the Applicant by phone on two occasions. On the second occasion at 8:41am the Tribunal officer left a voicemail advising that the requested adjournment had not been granted and the scheduled hearing would go ahead at 9:30am. Subsequently, at 9:16am the Tribunal sent the Applicant a letter by email refusing the adjournment request and confirming that the hearing for 21 June 2017 at 9:30am would proceed (adjournment refusal letter). The Applicant did not attend the scheduled hearing at 9:30am on 21 June 2017 or at all on that date. On 21 June 2017 at 6:58pm the Tribunal made its decision affirming the Delegate’s decision not to grant to the Applicant a Protection visa.

6. At [6] – [11] of its Decision Record the Tribunal summarised the Applicant’s claims to protection and his personal background. At [12] the Tribunal noted the documentary evidence which was before it.

7. From [13] – [16] of its Decision Record the Tribunal set out the circumstances relating to the Applicant’s application for an adjournment. It recorded that the Applicant had not appeared before the Tribunal on 21 June 2017 and had not contacted the Tribunal by close of business on that date to provide any additional reason why he could not attend the scheduled hearing time and that pursuant to s.426A of the Act the Tribunal had decided to make a decision on the review without taking any further action to enable the Applicant to appear before it.

8. From [18] – [26] of its Decision Record, the Tribunal recorded its consideration of the Applicant’s claims and the evidence before it. It stated its view at [18] that the information provided by the Applicant was vague and lacking in detail in significant respects and that there was insufficient evidence before the Tribunal in relation to a number of matters, which it then proceeded to particularise.

9. In the result at [21] of its Decision Record the Tribunal recorded that it was unable to be satisfied with any of the Applicant’s claims and at [22] that it was not satisfied that the Applicant faced a real chance of serious harm amounting to persecution under the Refugees Convention criterion and at [24] that it was not satisfied that there were substantial grounds for believing that there would be a real risk of significant harm if he returned to Malaysia.

10. Accordingly, the Tribunal affirmed the decision of the Delegate not to grant a Protection visa to the Applicant. 

Grounds of Attack on Tribunal Decision in this Court

1. The Applicant relied upon the following Grounds in his Amended Application which have been numbered and appropriately supplemented for ease of sense:

   1. The AAT made a jurisdictional error when it did not allow the extension of time to appear for the hearing. The applicant claims he was denied natural justice when he was not invited to appear to expand and give details to the Department.

   Particulars

   The applicant received a letter of invitation to attend the Hearing on 21 June 2017 ((Green Book pp108 – 109). The applicant was not able to attend the hearing on the scheduled day and time. He requested the Tribunal on 20 June 2017 to extend the date of the hearing for any day after that “I would like to postpone my hearing because I cannot get off on that day. Hope you can consider my request and if you don’t mind to reschedule back my hearing date.”

   (Green Book P117)

   On 21 June 2017 at 08.41.00 AM the Tribunal wrote “On the Members request I tried to contact by Phone on 2 occasions. The applicant did not answer the call. On the second attempt, I left Voice message for the applicant advising the applicant that the request for postponement had not been granted. I relayed the fact the hearing would go ahead at 9.30 am today.”

   On the same day on 21 June 2017 at 9.16 the Tribunal officer sent email to the Applicant “

   Dear [DAW17]

   “I am writing in relation to an application for review by the Migration and Refugee Division of the AAT. Please read the attached correspondence carefully, noting that we may require a response from you before a certain date. If you have any questions or experiencing problems opening documents/attached to this email message, please contact us immediately at [email protected] or call 1800 228 333”. Scheduled time for hearing was 9.30am on 21 June 2017 and the Tribunal’s last communication through email occurred at 9.16am.

   The Tribunal asked for response from the Applicant before a certain date. The date was not given in the letter. The applicant was not given opportunity to give response in writing. When he did not make appearance on 21 June 2017 at 9.30 he wanted to prepare response and submission for hearing before any date given by the Tribunal. The Tribunal did not consider on any date for written response and any consideration for request to reschedule for further hearing.

   2. The applicant claims the AAT did not [take into] account the relevancy of hearing. It was vital for the applicant to appear before the Tribunal or send the response before the decision. The applicant had a legitimate expectation that it would [grant] his request for extension of time because it was first time. The applicant claims that in making decision, the Administrative Appeal Tribunal failed to take account of relevant considerations and took into account irrelevant considerations.

   Particulars

   Subparagraph of 65 (1) (a) (ii) of the Migration Act 1958 requires the decision maker in respect of the applicant’s primary application for a protection visa to make determination as to whether the criteria for the grant of the visa prescribed by the Act or the Regulations made there under were satisfied. It is expected from the AAT that it would make decision based on logically probative and relevant materials.

   3. The applicant claims that the AAT overlooked or did not intend to find that because of Shak Loan offenders hundreds of people are killed every year in Malaysia. Some are reported and some are hidden. The applicant claims that whether the AAT fulfilled its obligation to…

   4. The applicant was denied natural justice when the Respondent first completed only a formalistic way to make a decision but the procedure in were not followed or implemented. It is believed that in absence of proper procedures, a decision marker’s perceptions of the merits of a case may prevent the substance from ever being properly ascertained.

   5. The Applicant claims that AAT’s finding of reasons are confused and test for persecution is not applied according to the rules of the Act and according to Complementary Protection Provisions under s.36(2)(aa) of the Act.

   Particulars

   The Tribunal used the same threshold for measuring the fear of risk for complementary protection and Refugee. The Tribunal wrote “Based on the limited information before the Tribunal, and the assessment of the facts above, the Tribunal is not satisfied that there are substantial grounds for believing that, as necessary and foreseeable consequences of the applicant being removed from Australia to Malaysia there would [be] a real risk that he will suffer significant harm”.

   The Applicant’s fears of Persecution is based on his fear from the loan lenders in Malaysia which is a group who exploits the innocent people and kill the people. The Tribunal did not go to the Current Country information about the problems. The Tribunal used very little and limited information for assessing the applicant’s claim for the complementary Protection.

   The applicant claims that the Tribunal unduly adopted harsh approach in assessing the fear of harm. The Tribunal did not follow the Rules of real risk Test of Persecution and harm. The AAT failed to [take into] account all the circumstances of fear and harms in which the applicant lived in Malaysia. The AAT failed to give real reasons for not applying Complementary Protection Criteria Under Paragraph 36 (2)(aa).

Consideration

Grounds 1 and 2

1. These Grounds take issue with the Tribunal’s refusal of the Applicant’s request for an adjournment. I will take them as attacking as legally unreasonable the Tribunal’s decision under s.426A(1A)(a) of the Act to make a decision on the Applicant’s application for review without taking any further action to allow or enable him to appear before it. The exercise of a discretionary power of such a kind is subject to judicial scrutiny in order to determine whether it was exercised in a legally unreasonable way: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Under s.427(1)(b) the Tribunal has the power to adjourn a review from time to time. The Tribunal is exhorted by s.2A(b) of the Administrative Appeals Tribunal Act 1975 (Cth) to carry out its functions in a way that is “fair, just, economical, informal and quick”. However, these discretionary powers to adjourn a hearing, to proceed with a hearing, and to operate economically, informally and quickly must be exercised reasonably in a legal sense and not arbitrarily, capriciously or without common sense, having regard to the central obligation of the Tribunal under s.414 of the Act to review decisions and to give the relevant applicant a meaningful opportunity and a real chance to appear and to present evidence and arguments pursuant to the invitation extended under s.425.

2. The first thing to be said is that whilst the failure of a Court or a tribunal to adjourn a matter may constitute a failure to allow a party the opportunity of properly presenting his or her case, as Deane J said in Sullivan v Department of Transport (1978) 20 ALR 323 at 343:

   … In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes on the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled.

3. The appointed hearing date of 21 June 2017 was, in the words of Hill J in Machmud v Minister for Immigration [2001] 66 ALD 98 at 102 [14] “one of the most important appointments in [his] life”. He was under a personal responsibility to attend in aid of his application for review if he was not precluded for good reason. As Barker J in Ponugotti v Minister for Immigration (2015) 144 ALD 365 said at 372 [56], referring to proceedings before the Migration Review Tribunal:

   [56]  What this decision by this court and the court below emphasise, is that applicants before the tribunal have a responsibility diligently to follow up and attend hearings when they are appropriately notified of them and that, unless there is adequate reason for doing so, a court will not automatically restore an applicant’s expectation of a hearing when the applicant fails to attend the hearing to which he or she was invited.

1. I find that the Tribunal s.425A letter complied with and was valid under s.425A of the Act and that it was sent to the email address provided to the Tribunal by the Applicant in his application for merits review lodged on 20 March 2017. Further, it is clear from the adjournment request email that the Applicant was aware of the scheduled hearing date of 21 June 2017.

2. Accordingly, in such circumstances it was open to the Tribunal to exercise the discretion given to it under s.426A(1A)(a) to “make a decision on the review without taking any further action to allow or enable the Applicant to appear before it”.

3. In my view the Tribunal did not act in a legally unreasonable way in deciding to make a decision without taking any further action to allow or enable the Applicant to appear before it in support of his application for review. The decision of the Tribunal did not “lack an intelligible justification” nor was it “irrational” or “illogical”. The Applicant had been put on notice by the s.425A letter than an adjournment would only be granted if he had “a very good reason”. The Applicant did not respond to the s.425A letter and did not return to the Tribunal the Response to Hearing Invitation. This is not a case where there had been a pattern or course of contact with the Tribunal which would have indicated to the Tribunal that the Applicant was seriously engaged in propounding his merits review application and that his failure to appear was out of character and a departure from his previous pattern of conduct. The Applicant can apparently read and write the English language and so was in a better position than many applicants for Protection visas to forward and progress his application.

4. Further, and importantly, no proper or adequate reason has ever been given by the Applicant to explain or mitigate his failure to attend the scheduled Tribunal hearing. The adjournment request email was couched in the blandest and most general terms and merely asserted the Applicant “can’t get off that day” and such is the only explanation ever given by the Applicant for not appearing at the scheduled Tribunal hearing, including to this Court. At no point did he seek to engage with the Tribunal after he had received the adjournment refusal letter of 21 June 2017.

5. It is clear that from the terms of the adjournment request email that no medical condition affected the Applicant. At no time did he contact the Tribunal to see whether or not he could take part in the Tribunal hearing by telephone.

6. Accordingly, in my view the decision of the Tribunal to proceed in the absence of the Applicant was not legally unreasonable, particularly when one has regard to the fact that the test for legal unreasonableness is stringent: Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 per Kiefel CJ at 411 [10] – [11], Gageler J at 421 [52] and Edelman J at 438 [135] and 439 [140].

Ground 3

1. It is clear from the Decision Record of the Tribunal that it considered the Applicant’s claims as made by him. His Protection visa application made no reference generally to “Shak loan offenders” or “hundreds of people being killed every year in Malaysia because of Shak loan offenders”. The claim as made by the Applicant concerned a single money lender whom the Applicant could not repay. It is true that the Tribunal at [7] of its Decision Record referred in the plural to “loan sharks”, but it is clear that this must be a reference to persons acting on behalf of the money lender referred to in the Protection visa application form lodged by the Applicant.

2. At [7] of its Decision Record the Tribunal correctly recorded the claims made by the Applicant in his Protection visa application form and at [18] listed the various matters that it would have wished to discuss with the Applicant and have obtained evidence about if he had appeared at the Tribunal hearing. By force of s.65 of the Act the Minister, and by force of s.349 the Tribunal for the Minister, had to be satisfied of the relevant criteria before the Protection visa could be granted to the Applicant. In this case the Tribunal stated that it could not be satisfied of the criteria necessary for the grant of a Protection visa. There does not appear to me to be in the reasons of the Tribunal appearing in its Decision Record anything that could be properly described as irrational, capricious, legally unreasonable or otherwise unlawful.

3. The simple fact of the matter is that the Tribunal’s finding affirming the decision of the Delegate was almost inevitable in a situation where the Applicant did not attend the Tribunal hearing and his claims to protection were fact sensitive.  As the Full Court of the Federal Court said in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5] per French, Emmett & Dowsett JJ:

   [5]     In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.

   See also SZRRW v Minister for Immigration and Citizenship [2013] FCA 332 at [7] per Nicholas J.

4. Otherwise this Ground seeks to invoke a merits review of the decision of the Tribunal which is not available in this Court. It is possible that this Ground also asserts pre-judgement (a form of actual bias) by the Tribunal insofar as it claims that the Tribunal “did not intend to find” that hundreds of people are killed because of Shak loan lenders each year in Malaysia. In my view, there is not a skerrick of evidence that the decision of the Tribunal is affected by any form of bias, actual or apprehended.

5. In my view, Ground 3 is not made out and does not establish that the decision of the Tribunal is affected by jurisdictional error.

Ground 4

1. This Ground also fails. There is no evidence that the Applicant was denied natural justice or procedural fairness by the Tribunal. The Applicant lodged his application for merits review and was invited to a Tribunal hearing on 21 June 2017 of which date he was clearly aware, but without any sufficient reason did not attend the hearing. That was his decision and such circumstances do not establish any procedural unfairness.

Ground 5

1. This Ground appears to contend that the Tribunal failed to apply the correct test with respect to the Refugees Convention criterion and the complementary protection criterion.

2. This Ground also fails. Those respective criteria were dealt with correctly and set out by the Tribunal at [22] and [24] of its Decision Record. Further, it was open the Tribunal to rely on its anterior factual findings in relation to an assessment under the Refugees Convention criterion in its consideration of the complementary protection criterion and it was not necessary for the Tribunal to repeat those factual findings under the rubric of the complementary protection criterion: see CBN17 v Minister for Immigration and Border Protection [2018] FCA 788 at [31] – [32] per Murphy J.

3. Ground 5 fails to establish that the decision of the Tribunal is affected by jurisdictional error.

A Final Matter

1. The Minister as a model litigant pointed out that at [18] of the Decision Record there appear four sub-paragraphs which are irrelevant to the Protection claims made by the Applicant. There is no evidence as to how these irrelevant sub-paragraphs came to be included.

2. I would assume that there has been some erroneous transposition from another draft decision record in course of preparation within the Tribunal. However, it is not necessary to further consider that matter because in my view the Tribunal made no dispositive findings about these irrelevant sub-paragraphs, but rather made findings about the claims actually made by the Applicant. The inclusion of these irrelevant sub-paragraphs is not to be characterised as establishing a constructive failure of the Tribunal to exercise the jurisdiction conferred upon it or as a failure to discharge its statutory function. Their inclusion did not affect the Tribunal’s exercise of its power and has no jurisdictional significance.  

Conclusion

1. The Applicant has failed to establish jurisdictional error and the Amended Application is to be dismissed.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 20 June 2019

Corrections

Reference to a second order, being the costs order made after the delivery of these Reasons for Judgment, removed from the section entitled “THE ORDERS OF THE COURT ARE AS FOLLOWS”.