DDF16 v Minister for Immigration

[2017] FCCA 3213

FEDERAL CIRCUIT COURT OF AUSTRALIA

DDF16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3213

Catchwords:
MIGRATION – Application for protection visa – review of decision of Administrative Appeals Tribunal – the Tribunal erred by misconstruing the risk and fear of significant harm – the Tribunal erred in failing to comply with s.424A of the Migration Act 1958 (Cth) – whether reasonable satisfaction of the Tribunal to make its decision was arrived at in accordance with the provisions of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2A), 424A, 438

Cases cited:

AVO15 v Minister for Immigration & Border Protection [2017] FCA 566

Applicant: DDF16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2888 of 2016

Judgment of: Judge Smith

Hearing date: 20 November 2017

Date of Last Submission: 20 November 2017

Delivered at: Sydney

Delivered on: 20 November 2017

REPRESENTATION

The applicant appeared in person.

Counsel for the First Respondent: Mr T Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2888 of 2016

DDF16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 September 2016.  The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.  The background claims and reasons for the Tribunal’s decision are set out in [2] through to [8] of the Minister’s written submissions which I set out below:

   2.The Applicant is a citizen of Malaysia who arrived in Australia on 19 June 2015: CB 98 [2]. He applied for the protection visa on 15 September 2015: CB 1-39.  The delegate refused the visa on 22 January 2016: CB 50-67.  The Applicant applied to the Tribunal for review on 17 February 2016: CB 68-74.  The Tribunal held a hearing on 16 September 2016: CB 94-96, and made its decision the same day.

   3.In his visa application the Applicant claimed to fear harm from members of the Barisan Nasional (BN) party due to his involvement with the Malaysian Chinese Association (MCA) in 2010.  He claimed that that BN tried to get him to join them due to his “sphere of influence”.  When he refused, the BN “blocked” his business and flow of customers.  The Applicant tried to borrow money from the bank but was rejected.  He borrowed money from a loan shark and paid interest for three years but could no longer afford to pay and had to sell his house to pay his debts.  He changed his company name and moved office but was pursued by the loan shark’s cronies who vandalised his office and tried to attack him.  He reported the matter to the police who took his statement but did nothing.

   4.Before the Tribunal the Applicant claimed to vote for the Democratic Action Party (DAP), and that the BN tried to convert him to Islam.  He gave inconsistent evidence about whether he was a member of any associations or clubs or political parties (par 14), the political party he voted for (par 15) and the BN’s motivation for approaching him to join their party (par 18).  The Tribunal found that the Applicant was also vague about the methods that the BN used to enlist him (par 19).

   5.The Tribunal found that the Applicant’s evidence regarding the cross-section of ethnic composition of his workforce indicated a low portion of Malaysian citizens (par 20), which indicated he would have few workers to bring with him to the BN (par 21). The Tribunal accepted that the BN has had flagging support and was looking for new supporters but was concerned by the applicant’s inability to describe any wider campaign to recruit him (par 22).

   6.The Tribunal found the applicant’s evidence regarding the bank’s refusal of his loan was “inconsistent and far-fetched”. The Applicant claimed that the bank refused his loan because the BN pressured the bank and he said his friend at the bank told him this. The Tribunal noted that country information indicated that the economy in his home state had been in decline around the time he applied for a loan (par 23). The Applicant also gave inconsistent evidence about his arrangement with the loan shark including whether they had a contact (par 24). He claimed that he sold his home to finance his travel to Australia but gave inconsistent evidence about when he sold his home (par 25).

   7.The Tribunal found that the applicant gave a “very confident impression” that he came here purely for economic reasons at a time when economic conditions in Malaysia were hurting the industry in which he worked (par 29). The Tribunal relied on his oral evidence to find that the Applicant had gathered information about earning money in Australia and where to do it for a long time before he took steps to find out about how to claim asylum in Australia (par 26).

   8.The Tribunal found the Applicant to be a “thoroughly unreliable and unsatisfactory witness” (par 28). The Tribunal was concerned with the inconsistent information provided by the Applicant and rejected his claims to fear harm entirely (pars 28 and 33). Accordingly the Tribunal affirmed the delegate’s decision.

   (Emphasis in original)

Consideration

1. There are three grounds in the application. The first is that the “Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958”.  The applicant asserted that the Tribunal erroneously and narrowly construed the existence of risk to life and fear of significant harm to him upon his return to Malaysia.  The problem with this ground is that the Tribunal in fact rejected the applicant’s claims. Accordingly, there was nothing for the Tribunal to assess in respect of the question of the existence of a real risk of significant harm and there was no error as asserted. 

2. The second ground is that the Tribunal failed to comply with s.424A of the Migration Act 1958 (Cth) (Act).  In summary, that provision when it applies, requires the Tribunal to give the applicant particulars of information it considers would be the reason, or part of the reason, for the decision.  Apart from the information given to the Tribunal by the applicant, the only information upon which the Tribunal could be said to have considered as being the reason, or part of the reason for the Tribunal’s decision, was what might be described as country information[1]. 

   [1] See footnote 3 of the Tribunal’s decision.

3. However, that information was not specifically about the applicant and for that reason, falls within the exception to s.424A(1) found in sub-s.424A(3)(a) of the Act. For those reasons, there was no obligation upon the Tribunal under s.424A(1) and no error in the Tribunal failing to comply with that provision.

4. The third ground is that the Tribunal had no jurisdiction to make the decision because its “reasonable satisfaction” was not arrived at in accordance with the provisions of the Act.

5. This is a generic submission that is quite often seen in applications before this Court.  It is so broad as to have no meaning without any further context.  The applicant did not provide that context in his grounds of application and he filed no written submissions and made no oral submissions in support of his claim.  For those reasons the ground is rejected. 

6. In the material before the Court there was a certificate purportedly issued under s.438 of the Act.

7. The existence of the certificate and the documents to which it related do not appear to have been disclosed to the applicant and it gives rise to the issue of whether or not there was jurisdictional error in the failure by the Tribunal to disclose its existence or disclose the documents.  However, the documents to which the certificate relates are in evidence before the Court. 

8. The documents consist of a processing checklist which does not contain any information of any significance at all to the Tribunal’s decision and documents relating to the identification test.  The identification test, in my view, also bore no significance to the Tribunal’s decision.  The identity of the applicant was never an issue either before the delegate or the Tribunal. 

9. The third document is a disclosure decision checklist which, strangely enough, suggests that there are no s.438 related documents in the papers and says that there is no relevant certificate of non-disclosure attached. Like the other documents, it has no significance to the Tribunal’s decision. The Minister submitted that in those circumstances there was no practical injustice arising from the non-disclosure of the certificate or the documents regardless of the validity of the certificate itself.

10. In the circumstances, the Minister submitted that there was no jurisdictional error arising from such non-disclosure.  I agree with that submission[2] .  There is no jurisdictional error in the Tribunal’s decision. 

    [2] See AVO15 v Minister for Immigration & Border Protection [2017] FCA 566 at [84] and [91].

11. The application is dismissed.   

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       19 December 2017