DCT16 v Minister for Immigration

[2018] FCCA 3693

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCT16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3693

Catchwords:
MIGRATION – Protection Visa – whether Administrative Appeals Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.426A

Federal Circuit Court Rules 2001 (Cth), r.13.03C(1)(e)

Applicant: DCT16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 515 of 2016

Judgment of: Judge Vasta

Hearing date: 28 November 2018

Date of Last Submission: 28 November 2018

Delivered at: Perth

Delivered on: 28 November 2018

REPRESENTATION

There being no appearance by or on behalf of the Applicant

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the name of the First Respondent be amended to reflect “Minister for Immigration, Citizenship and Multicultural Affairs”.

2. That pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001, the Application filed 19 October 2016 is dismissed.

3. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 515 of 2016

DCT16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. The Applicant, DCT16, arrived in this country from Malaysia on 3 August 2014. He was here on a visitor visa which ceased on 3 November 2014. After that date, he remained in Australia as an unlawful non-citizen. He lodged an application for a protection visa on 24 November 2014. In that application, he claimed to fear harm from the “religious bureau” and from the family of his girlfriend because he was not Muslim and he would be forced to convert.

2. In effect, he was saying that his girlfriend in Malaysia was Islamic and she could not have anything to do with him unless he was a Muslim.  He did not want to convert.  Because of this, he was targeted by the so-called “religious bureau” and the family of the girlfriend. They had bashed him, harmed him and were, in effect, not allowing him to work or do anything else until he converted to Islam.

3. The Department wrote to him on 7 July 2015 and provided him with the opportunity to have an interview and to further discuss his claims.  There was no response received from him, and he did not attend an interview.  On 7 October 2015, the delegate refused to grant the Applicant the visa. 

4. On 13 November 2015, the Applicant lodged an application for review of the delegate’s decision to the Administrative Appeals Tribunal (“the AAT”).

5. On 1 August 2016, the Tribunal invited the Applicant to appear before it to give evidence and to present arguments. They scheduled the hearing for 19 September 2016. Correspondence was sent by email to the email address listed in his application to the Tribunal. On 12 September and again on 16 September 2016, SMS hearing reminders were sent to the Applicant at the mobile telephone number listed in his application to the Tribunal. The Applicant did not make any contact with the Tribunal subsequent to lodging his application, nor did he appear at that scheduled hearing.

6. On 22 September 2016, the Tribunal affirmed the decision not to grant the Applicant a visa. What the Tribunal did was go through all of the circumstances and came to a decision that they ought to proceed pursuant to s.426A of the Migration Act 1958 (Cth) (“the Act”) without taking any further action to allow or enable the Applicant to appear before it in this case.

7. At paragraphs 35 to 43, the AAT considered the claims made by the Applicant.  They listed what it is that he had written in his application.  At paragraph 39, they said this:

   39. Without more evidence from the applicant, the Tribunal cannot be satisfied about why he left Malaysia, or whether he cannot or will not return to Malaysia because he fears harm there as he claims.  If he had attended the hearing, the Tribunal would have had the opportunity to discuss his claims with him in more detail and test their veracity. The Tribunal would have sought further information in relation to the matters raised above.  The Tribunal would have used the opportunity of the hearing to discuss these issues with the applicant and given him the opportunity to explain the particular details of what he fears would happen if he returns to Malaysia now or in the reasonably foreseeable future and the reasons why it would happen. However, it was not possible to discuss any of these issues with him because, despite being advised by the Tribunal in its letter dated 1 August 2016 that it had considered all the material before it but was unable to make a favourable decision on that information alone, he did not attend a hearing and he provided no further information or evidence in support of his claims.  The Tribunal has insufficient evidence to be satisfied that the events and circumstances he raised are factual and, on the evidence before it does not accept his claims.

8. The Tribunal went on make findings that they were not satisfied of the tenets of his claim.  At paragraph 41, the Tribunal said:

   41. For all of these reasons, on the evidence before it, the Tribunal does not accept there is a real chance the applicant would be arrested, beaten, or forced to become a Muslim, or in any other way subjected to harm, if he returns to Malaysia, for reasons of his past relationships or religion or ethnicity or any other reason.

   42. On the evidence before it, the Tribunal is not satisfied there is a real chance that the applicant would face serious harm for reasons of his race, religion, nationality, political opinion or membership of a particular social group, either now or in the reasonably foreseeable future, if he returns to Malaysia. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason.

9. The Tribunal then looked at the complementary protection provisions and came to the conclusion that the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk that he will suffer significant harm. Therefore, it affirmed the decision not to grant the Applicant a protection visa.

10. On 19 October 2016, the Applicant filed an application to review that decision.  There were three grounds advanced:

    1. I DID NOT RECEIVE ANY LETTER ADVISING ME THE HEARING.

    2. AAT FAILED TO NOTIFY ME THE DATE OF THE HEARING.

    3. AAT DID NOT GIVE ME A CHANCE TO PRESENT MY EVIDENCE AND ARGUMENTS AT THE HEARING.  THIS IS NOT FAIR.  I DEMAND FAIRNESS FOR THE PROCDUARES [Sic] IN THE APPLICATION FOR REVIEW

11. The Applicant did not attend the first Court date on 9 December 2016, and Registrar Trott simply made orders for this hearing.  On 10 August 2018, I made orders in Chambers moving the date of the hearing to today. 

12. There has still been no contact made by the Applicant to this Court. The interpreter that was booked for him has turned up. His name has been called three times. The matter was set down for 11 o’clock. It is now 11.26 am.

13. On all of the surrounding circumstances, I am of the view that it is appropriate for the Court to proceed pursuant to r.13.03C(1)(e) and decide this matter on the merits.

14. The only jurisdictional error that is claimed is that the AAT had not conducted themselves fairly. This is a difficult claim to justify.  The AAT has looked at the matters.  At paragraph 17, the IAA said this:

    17. Section 426A of the Migration Act provides that if an applicant has been invited under s425 to attend a hearing and does not appear on the day on which, or at the time and place at which, he or she is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it or, alternatively, may dismiss the application without any further consideration of the application or of information before the Tribunal.

    18. The power to make a decision on the review or to dismiss proceedings for non-appearance only arises if the hearing invitation complied with the relevant statutory requirements.  The Tribunal has examined the hearing invitation which was sent to the applicant’s email address.  It finds it was sent to the email address that was given by the applicant in the applicant’s application for review. The Tribunal is satisfied the hearing invitation was given to the relevant person by one of the methods in s441A and that the prescribed period of notice of the relevant day, time and place of the scheduled hearing has been given.  The Tribunal is also satisfied that the effect of s. 426A(1A) appears in the invitation to attend a hearing.  As the hearing invitation complies with the statutory requirements, the Tribunal finds the power to proceed to a decision pursuant to s.426A is engaged.

15. The AAT has complied with the legislation.  In complying with the legislation, it is deemed to have complied with all of the precepts of natural justice. Therefore, any claim that the AAT has acted unfairly is simply without merit.  Therefore, there is no jurisdictional error.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  8 January 2019