DDN16 v Minister for Immigration - [2018] FCCA 1166

FEDERAL CIRCUIT COURT OF AUSTRALIA

DDN16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1166

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal’s findings were open to it – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36, 438, 476

Applicant:

DDN16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 2897 of 2016

Judgment of:

Judge Emmett

Hearing date:

9 May 2018

Date of Last Submission:

9 May 2018

Delivered at:

Sydney

Delivered on:

9 May 2018

REPRESENTATION

Applicant:

Appeared in person with the assistance of an interpreter in the Malay language

Solicitors for the Respondents:

Mr Tom Galvin
(Minter Ellison Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2897 of 2016

DDN16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 5 October 2016 (“the Tribunal”), dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 25 January 2016 refusing the applicant a Protection (Class XA) visa.

The proceeding before this Court

The applicant was unrepresented before this Court, although had the assistance of an interpreter.
On 23 February 2017, the applicant attended a directions hearing before this Court. On that occasion the applicant was given leave to file and serve an amended application, any further evidence, and submissions in support of the application. The applicant was also provided on that occasion with the contact details of legal services providers and translating and interpreting services in documents headed in his own language.
The applicant confirmed that he had not filed any further documents in the proceeding and that he had no further documents to give to the Court this morning.
At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 1166
Decision Date: 9 May 2018

CaseChat Overview and Summary

The applicant, a Malaysian citizen, sought judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) which affirmed a delegate's refusal to grant him a protection visa. The applicant claimed to fear harm from an Indian gang in his home district of Puchong, alleging racial abuse, physical attack, and subsequent harassment of his father and his father's business after the applicant arrived in Australia. The Tribunal had rejected these claims, making adverse credibility findings against the applicant.

The central legal issue before the court was whether the Tribunal had erred in law in its assessment of the applicant's claims and its subsequent decision to affirm the refusal of a protection visa. Specifically, the court was required to consider whether the Tribunal's adverse credibility findings were reasonably open to it on the evidence, and whether the Tribunal had properly applied the relevant provisions of the *Migration Act 1958* (Cth) concerning the definition of a refugee and complementary protection criteria.

Emmett J found that the Tribunal's decision was affected by an error of law. The Tribunal had made a finding that it was not plausible that authorities in Selangor would ignore reports of criminal activity by minority Indian gangs. However, the applicant's claims did not allege that the police ignored reports of criminal activity by the gang, but rather that the police were involved with the gang, or that they would do nothing if reports were made. This indicated a misunderstanding by the Tribunal of the applicant's specific allegations. Furthermore, the Tribunal's finding that the applicant's delay in applying for protection was because he was not interested and merely wanted to work illegally was based on an inference that was not reasonably open to it, given the applicant's evidence of fear and his father's actions. The Tribunal's adverse credibility findings, which were central to its decision, were therefore vitiated by these errors.

The court ordered that the decision of the Administrative Appeals Tribunal be set aside, and remitted the application for a protection visa to the Tribunal for redetermination according to law.

Orders

Orders of the court

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Background

Background to the litigation

The factual background, the applicant’s claims and the Tribunal decision are accurately summarised in the submissions of the first respondent, as follows:“B FACTUAL BACKGROUND2. The applicant is a citizen of Malaysia, who arrived in Australia on 14 September 2012 on an Electronic Travel Authority (subclass 976) visa which ceased on 15 December 2012. The applicant then remained in Australia unlawfully until he applied for a protection visa on 28 September 2015 (Court book (CB) 1–35).3. On 25 January 2016, a delegate of the first respondent (the delegate) refused to grant the applicant a protection visa (CB 58–72).4. The applicant sought review of the delegate's decision before the Tribunal by application dated 17 February 2016 (CB 74–80).5. The applicant appeared at a hearing before the Tribunal on 30 September 2016 (CB 103–105).6. The Tribunal made its decision on 5 October 2016, affirming the decision not to grant the applicant a protection visa (CB 112–120).C APPLICANT'S CLAIMS7. The applicant claimed to fear harm at the hands of an Indian gang in his home district of Puchong. In particular, he claimed that:(a) the gang had taunted him at school with racial abuse because of his Pakistani heritage;(b) one day, the applicant was attacked by the gang on his way home from school. Initially, the applicant claimed that he did not report this incident to police because the police were involved with the gang, and instead, his father took him away from Puchong. The applicant later claimed that his father reported the harassment he experienced at school to police by they took no action;(c) the gang was waiting for him when he returned to Puchong, and thereafter he and his father departed Malaysia;(d) since the applicant arrived in Australia, the gang has harassed his father at his father's shop demanding to know the applicant's whereabouts, and have vandalised the shop and demanded money; and(e) initially, the applicant claimed firstly that his father had reported this incident involving his shop to police but they did nothing, and then claimed that his father did not report it because the police would do nothing.D TRIBUNAL DECISION8. The Tribunal rejected the applicant's claims on the basis of credibility findings. The Tribunal made the following key findings:(a) it was not plausible that authorities in the predominantly Muslim state of Selangor would ignore reports of criminal activity by minority Indian gangs (CB 115: [16]);(b) the applicant provided inconsistent evidence about a police report being made, about relocating away from Puchong and about the reasons for the delay in applying for protection (CB 115–116: [18]–[22]);(c) his evidence as to what he has done since arriving in Australia and why was 'inconsistent, muddled, subject to revision and evident improvisation' (CB 126: [22]);(d) the reasonable inference for the applicant's delay in applying for protection was that he was not interested, and merely wanted to work illegally (CB 116: [22]);(e) the applicant's account was ‘a fabrication’ and the Tribunal gave weight to the inconsistencies in his evidence and implausibility of some of his claims (CB 116: [25]); and(f) the applicant was a comprehensively unreliable witness and the Tribunal was not satisfied that he had a genuine fear of persecution in Malaysia (CB 116: [25]).9. For these reasons, the Tribunal was not satisfied that the applicant met the definition of refugee in subsection 5J(1) or paragraph 36(2)(a) of the Act (CB 116: [26]–[27]). For the same reasons, the Tribunal found that the applicant did not satisfy the complementary protection criterion in paragraph 36(2)(aa) of the Act (CB 117: [28]–[31]).”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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