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

Cases cited:
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1
Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305
Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194
AVO15 v Minister for Immigration and Border Protection [2017] FCA 566

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

1. 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

1. The applicant was unrepresented before this Court, although had the assistance of an interpreter.

2. 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. 

3. 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.

4. 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 for this Court to reconsider the applicant’s claims and make different findings or reach different conclusions. I explained that this Court has no power to interfere with the decision of the Tribunal unless the Tribunal’s decision is affected by a mistake that goes to its jurisdiction.  I further explained that disagreement with the findings and conclusions of the Tribunal rarely by itself establishes such a mistake.

5. The applicant confirmed that he relied on the grounds contained in his initiating Application filed on 24 October 2016 as follows:

   “1. The decision of the Tribunal

   2. is effected by an error of law

   3. denied the applicant procedural fairness”

   (Errors in original)

6. Those grounds were interpreted for the applicant and he was invited to say whatever he wished in support of those grounds.

7. The applicant continued to say that he did not understand what the grounds were or what error the Tribunal had made and that he needed time to consider what he would say.

8. I explained that all the Court could do is to give him an opportunity to say whatever he wished in relation to mistakes he claims were made by the Tribunal. The applicant declined to say anything further and asked for more time to consider his case.

9. I explained to the applicant that he had had since 24 October 2016, when he filed his application, as well as from the directions hearing on 23 February 2017, where he was provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language, to have sought any advice. Plainly there has been a significant amount of time to enable the applicant to obtain any assistance or advice or to give thought to what it was that he wished to put to the Court in support of his application.

10. However, I stood the matter down for a brief time while I dealt with two other directions matters, and suggested that the applicant make use of that time to gather his thoughts in relation to anything he may wish to say in support of his application.

11. When the applicant returned, the applicant continued to assert that he did not understand. There was no evidence before the Court of any impediment suffered by the applicant in relation to his ability to participate in today’s hearing, nor is there any suggestion in the Tribunal’s decision record of any difficulty suffered by the applicant that impeded his ability to participate in a meaningful way at the hearing before the Tribunal.

12. In all the circumstances, I explained to the applicant that his application for any further time was refused.

13. 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 BACKGROUND

    2. 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 CLAIMS

    7. 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 DECISION

    8. 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]).”

14. The grounds of the application make bare assertions that do not identify any error capable of review by this Court. Further, they were unsupported by any particulars or written or oral submissions.

15. The applicant was invited to attend a hearing before the Tribunal by letter dated 1 September 2016. The applicant attended that hearing on 30 September 2016 with the assistance of an interpreter. The Tribunal’s invitation complied with the relevant legislative scheme in inviting the applicant to attend that hearing.

16. The Tribunal’s decision record discloses that the Tribunal summarised oral evidence given to it by the applicant in respect of his claims. The Tribunal then noted various matters of concern that it put to the applicant and noted the applicant’s responses.

17. The Tribunal also raised with the applicant his apparent delay in lodging his protection visa application as it seemed inconsistent with a genuine fear of relevant harm in Malaysia. The Tribunal found the applicant’s explanation to be “inconsistent, muddled and subject to revision and evident improvisation”.

18. The Tribunal found that the applicant moved to Griffith quickly after his arrival in Australia to work illegally and did not make any effort to inquire about applying for protection leading to the reasonable inference that he was not interested in doing so.

19. The Tribunal accepted that the applicant may have been subject to interracial name calling at school but gave such evidence little weight.

20. The Tribunal found the applicant’s claims of threats to his family and his inability to obtain state protection to be fabrications.

21. The Tribunal rejected the applicant’s claim to have been invited to join a gang and found the applicant’s claims to be inconsistent and implausible, including the applicant’s explanations to concerns raised by the Tribunal.

22. The Tribunal found the applicant to be “a comprehensively unreliable witness” and was not satisfied that he had a genuine fear of persecution in Malaysia.

23. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations either under ss.36(2)(a) or 36(2)(aa) of the Act.

24. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

25. The Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative bases or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547)

26. None of the complaints suggested in the grounds that the Tribunal denied the applicant procedural fairness is made out.

Section 438 Certificate

1. The Department did issue a certificate under s.438 of the Act on 18 February 2016. That document was provided to the Court as an exhibit to an affidavit of Julian Darcy Pinder, affirmed 31 October 2017, and was not the subject of any claim for privilege by the respondent. A copy of the document was provided to the applicant. The document the subject of the s.438 certificate is headed “Application and Identification Test Details” and was in relation to the applicant.

2. The Tribunal’s decision record does not identify the existence of the certificate or indicate that it was disclosed to the applicant. The certificate is invalid because it was based on the fact that the document to which it related contained information relating to a “internal working document and business affairs”; and such information has never been a necessary or sufficient basis for public interest immunity as contemplated by s.438 of the Act (MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1; at [37]).

3. I accept, however, that the issuing of such a certificate, even though unnecessary and invalid, is not sufficient to establish jurisdictional error on the part of the Tribunal because there is no basis upon which it could be found that the Tribunal acted on the certificate or denied the applicant procedural fairness or led to the applicant suffering of any practical injustice (see Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305; Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 at [65]).

4. I accept the submission of the first respondent that the most compelling inference to draw from the absence of reference to the certificate in the Tribunal’s reasons is that the Tribunal did not consider that folio to be material to the review. It could not have impacted on the outcome of the Tribunal’s review because it relates only to the applicant’s identity, and the applicant’s claimed identity was accepted by the Tribunal. In those circumstances, there was no information in the folio that could have assisted the applicant.

5. I am satisfied that no substantive issue arose from the non-disclosure of the document, and, as Barker J found in AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 at [87]:

   “…the Tribunal plainly had no regard to them and, on any view, they could have been of no or only passing contextual relevance to the application.”

Conclusion

1. In the circumstances the Tribunal’s decision is not affected by jurisdictional error, and, accordingly, the proceeding before this Court commenced by way of application filed on 24 October 2016 should be dismissed with costs.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  15 May 2018