DDW16 v Minister for Immigration

[2019] FCCA 3931

FEDERAL CIRCUIT COURT OF AUSTRALIA

DDW16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3931

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal (the Tribunal) – whether the Tribunal ignored evidence in favour of the applicant – whether the Tribunal refused to accept a claim – whether the Tribunal failed to consider a claim – allegation of actual bias – s.438 certificate – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 438, 476

Cases cited:

Randhawa v The Minister for Immigration, Local Government and Ethnic

Affairs [1994] FCA 1253; (1994) 124 ALR 265

Selvadurai v The Minister for Immigration and Ethnic Affairs and J. Good

(Member of the Refugee Review Tribunal) [1994] FCA 1105;

(1994) 34 ALR 347; (1994) 34 ALD 347

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)

[2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous

Affairs [2003] FCAFC 184; (2003) 256 FCR 593; (2003) 75 ALR 630;

(2003) 75 ALD 630

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802;

(2001) 233 FCR 136; (2001) 194 ALR 244

Dranichnikov v Minister for Immigration and Multicultural Affairs

[2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389;

(2003) 73 ALD 321

Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507;

(2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1

Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister

for Immigration and Border Protection; BEG15 v Minister for Immigration and

Border Protection [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252;

(2019) 363 ALR 599; (2019) 75 AAR 75; (2019) 163 ALD 38

Hossain v Minister for Immigration and Border Protection [2018] HCA 34;

(2018) 264 CLR 123; (2018) 92 ALJR 780; (2018) 359 ALR 1;

(2018) 75 AAR 551

Applicant: DDW16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2914 of 2016

Judgment of: Judge Nicholls

Hearing date: 8 March 2019

Date of Last Submission: 8 March 2019

Delivered at: Sydney

Delivered on: 8 March 2019

REPRESENTATION

Applicant: In person

Representative for the Respondents: Ms J. Strugnell

Solicitors for the Respondents: Minter Ellison Lawyers

ORDERS

1. The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

2. The application made on 25 October 2016 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $5600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2914 of 2016

DDW16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. I have before me today an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), made on 25 October 2016, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 27 September 2016, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

2. In evidence before the Court is a bundle of relevant documents:  the Court Book (“CB”), marked as respondent’s exhibit one (“RE1”); and the affidavit of Julian D’Arcey Pinder, solicitor, made on 31 October 2017, which contained an exhibit to which I will refer later.

Background

1. The applicant is a citizen of Malaysia, who arrived in Australia on 17 January 2015 on a visitor visa. The visa ceased to have effect on 17 April 2015. The applicant remained in Australia without authority until he applied for the protection visa on 12 October 2015. (See CB 1–CB 35, and CB 56 in relation to the applicant’s migration history).

2. The applicant’s claims to fear harm were set out initially in a written statement that accompanied his application for the protection visa. (CB 35).

3. In essence, the applicant claimed to fear harm from a Malaysian whom he identified as Saifu. The applicant stated that he operated a small business on his own, laying house tiles. Saifu refused to pay him for work he had done on his house.  The applicant repeatedly went to Saifu’s house to obtain the money that he said he was owed, and Saifu avoided him.

4. On the evening of 20 August 2014, when the applicant went to Saifu’s house to ask for his money, he claimed to have been beaten by Saifu and by what he said were “several big men”.  He was injured.  He reported this matter to the police, who took him and his claimed assailants to the police station.  The police released his assailants.  He was aggrieved by this and criticised the police, who detained him for two days. 

5. Sometime in September of that year, his business licence was revoked by officials because they said they had received complaints regarding what is described as the “bad quality” of his work.  Without a licence, he could not earn income to support his family. He, therefore, came to Australia.

The Delegate

1. The delegate refused the application on 21 January 2016. (CB 50). The delegate does not appear to have made any actual factual findings about the applicant’s claims.  However, it appears, at best, the factual claims were accepted, but that the protection visa was refused on the basis that effective State protection was available to the applicant. (CB 56–CB 70).

The Tribunal

1. The applicant applied for review to the Tribunal on 22 February 2016.  (CB 72). He attended a hearing before the Tribunal on 21 September 2016. He was assisted by an interpreter in the Cantonese language.  (CB 93–CB 95).

2. There is no evidence by way of transcript of the Tribunal’s hearing before the Court as to what was discussed at the hearing.  I note that the applicant was given the opportunity, as a result of orders made by a Registrar of the Court on 2 March 2017, to file and serve any affidavit containing additional evidence, including any transcript of a Tribunal hearing. 

3. The only evidence before the Court of what occurred at the hearing are the references made by the Tribunal in its decision record. This evidence reveals that at the hearing, the applicant raised matters either inconsistent with his written statement, or what can be described as an extension, or an expansion, of his claims to fear harm. 

4. The Tribunal found that the applicant was not telling the truth about the claimed incidents, including about the person (Saifu) to whom the money was said to be owed.  This was because the Tribunal found that he had provided inconsistent evidence about when his business licence was revoked. The reason given in his written statement for this revocation of the licence was attributed to the incidents that involved Saifu, yet, before the Tribunal, the applicant was found to have given a different account. He claimed to fear harm from workers he had not paid, and from not having paid taxes.

5. After hearing the applicant’s evidence, the Tribunal formed the impression that he had fabricated the dispute with this person, and, further, given that he had changed and expanded the scope of his claims at the hearing, the Tribunal was not satisfied that he had been truthful.

6. The Tribunal was satisfied that there had been an economic downturn in Malaysia and that this made it difficult for the applicant to find work. However, the Tribunal found that there was nothing in the applicant’s evidence to suggest that this inability to find work was for any of the reasons that would relate to him satisfying the criteria for the grant of the visa. (Section 5J(4) and (5), and s.36(2)(a) and (aa) of the Act).

7. The Tribunal had regard to the definition of “persecution” as set out in the Act in making that finding, and, similarly, the Tribunal was not satisfied on the evidence that the applicant met the requirements for the grant of the visa on the basis of complementary protection.

Application to the Court

1. The grounds of the application to the Court are in the following terms:

   “1. Jurisdictional error has been made.

   The Tribunal ignores evidence in favour of me.

   The Tribunal refuses to accept my claim that I will be harmed if I return to Malaysia without substantiated evidence.

   The Tribunal does not consider racial discrimination against ethnic Chinese.

   2. The Tribunal considers my case with bias.”

Before the Court 

1. At the hearing today before the Court, the applicant appeared in person.  He was assisted by an interpreter in the Cantonese language. The Minister was represented by a solicitor.  The applicant confirmed that he did not have any evidence on which he sought to rely today. 

2. I took the opportunity to explain to the applicant the nature of the proceedings and, in particular, that the Court had no power to intervene to grant him a protection visa. I explained to the applicant that the Court’s power was confined to the question of whether, in making its decision, the Tribunal made a “legal mistake”. I explained to the applicant that his disagreement with the Tribunal’s decision was not a basis upon which to assert legal error on the part of the Tribunal.

3. In relation to ground 1, the applicant submitted that if he were to return to Malaysia, he would be treated unfairly and that Chinese people are discriminated against in Malaysia, and that the Tribunal refused to accept his claim that he would be harmed on return to Malaysia.

4. In relation to ground 2, the applicant stated that the Tribunal was against him. The basis for this statement was that he cannot return to Malaysia because his life would be significantly affected. Therefore, he said, the Tribunal was biased against him.

Consideration

1. Ground 1 asserts jurisdictional error because, it is said, the Tribunal ignored evidence in favour of the applicant, and it refused to accept his claim without substantiated evidence. The ground also asserts that the Tribunal did not consider racial discrimination against ethnic Chinese.

2. The applicant’s ground is not made out.

3. One, neither the ground, nor the applicant today, identified what evidence was ignored.  In any event, given the Tribunal’s reasoning and its findings, and what the applicant told the Court today, the real complaint in relation to the first particular of ground 1, if not all of the particulars, is that the Tribunal did not accept the truth of his evidence, or that he met the requirements for the grant of a protection visa.

4. Two, as the Minister correctly submitted, the Tribunal is not obliged to uncritically accept an applicant’s evidence or claims. (Randhawa v The Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265). The task set for the Tribunal is one of a critical evaluation of the claims and evidence, I do not use the word “critical” in a negative sense, but rather in the positive sense of a meaningful and intellectual engagement with the claims and evidence, and to make findings of fact based on that evidence, and to give cogent reasons for those findings. On the evidence before the Court, that is what the Tribunal has done in this case.

5. Three, it is, as the Minister submits, for the applicant to provide sufficient evidence to satisfy the Tribunal that the relevant criteria for the grant of the visa are met. 

6. Four, the Tribunal is not required to provide evidence to rebut the applicant’s claims before rejecting the applicant’s factual claims. (Selvadurai v The Minister for Immigration and Ethnic Affairs and J. Good (Member of the Refugee Review Tribunal) [1994] FCA 1105; (1994) 34 ALR 347).

7. The ground also asserts that the Tribunal refused to accept his claim that he would be harmed if he returned to Malaysia and the Tribunal did not consider racial discrimination against ethnic Chinese.

8. It is the case that the Tribunal is required, to consider any claim to fear harm that is expressly made or clearly arising from the circumstances presented. (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 256 FCR 593 and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136). It is also required to consider any substantial argument that is put to it in relation to the claim to fear harm. (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088).

9. The difficulty for the applicant today is that there is no evidence he ever expressly made the claim that he feared harm because of racial discrimination against ethnic Chinese.  As the Minister submitted the applicant’s written statement, to which I have already referred, and what the applicant is reported to have told the Tribunal at the Tribunal hearing, are the only expressions of the applicant’s claims to fear harm in evidence before the Court. There is nothing in either the statement or the report of the hearing to even indicate, or to provide any support for the proposition, that he made such a claim and that the Tribunal refused to consider it.

10. Further, while there are references to the person with whom the applicant claimed to have had a dispute being an ethnic Malaysian, there is nothing in the applicant’s written statement or, for that matter, in his evidence to the Tribunal, to even suggest that that was an element of, or an example of, discrimination against him because he was of Chinese ethnicity.  In all, the evidence does not support the proposition stated in the ground. There is nothing to indicate, that any such claim could be said to clearly arise from the circumstances presented, or even that it was ever expressly made.

11. In short, the applicant’s assertion that the Tribunal refused to accept that he would be harmed if he returned to Malaysia is no more than an expression of disagreement with the Tribunal’s findings and conclusion.  The allegation that the Tribunal did not consider racial discrimination against ethnic Chinese lacks an evidentiary foundation. The assertion that the Tribunal ignored evidence in favour of him, absent particulars, is meaningless. In any event, there is nothing to even indicate that the Tribunal ignored any of his evidence. 

12. It may be that the applicant used the word “ignored” in the sense of “did not accept”, in which case this again is no more than an invitation to the Court to engage in impermissible merits review. As I said to the applicant on a number of occasions today, the Court cannot intervene to substitute its own findings of fact for those of the Tribunal.

13. Ground 2 asserts that the Tribunal considered his case with bias.  Given the seriousness of such a charge, it is quite clear that such claims must be distinctly made and clearly proven. (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507). In the current case, given the absence of any particulars and, indeed, the absence of any transcript of a Tribunal hearing before the Court, this can again only be seen as an expression of grievance against the Tribunal’s adverse findings and the conclusion that it reached.

14. As the Minister submitted today, there is no evidence of prejudgment on the part of the Tribunal.  There is no evidence to say that the Tribunal did not bring an open mind to the consideration of the question as to whether the applicant should be granted a protection visa.

15. The evidence that is before the Court reveals that the Tribunal did engage with the claims and evidence before it in a way that does not support, does not even indicate, any allegation of bias. Simply because the Tribunal found against the applicant, is not a sufficient basis upon which to base such a serious allegation as bias.

16. By his written submissions, the Minister, and as explained by the Minister’s solicitor today, drew attention to a further issue. The material before the Court in the Court Book included a copy of a certificate made on 23 February 2016 and said to have been made pursuant to s.438(1)(a) of the Act. (CB 71).

17. Before the Court is the affidavit of Mr Pinder. Annexed to it is the document which was the subject of the certificate. It is a document dealing with verification of the applicant’s identity. 

18. As the Minister submitted today, the certificate was not validly issued.  It makes reference to the basis of the certificate being that it would be contrary to the public interest to disclose this document because it contained information relating to an internal working document of the Minister’s department. This was not a valid basis upon which to issue the certificate. 

19. As the Minister also correctly submitted, relevant High Court authority is to the effect that the Tribunal did have a procedural fairness obligation to disclose the existence of the certificate to the applicant. There is no evidence that it did so. 

20. However, ultimately, whatever failure of procedural fairness may have been involved here, such a breach does not result in jurisdictional error because the document to which the certificate referred was not material to the Tribunal’s decision or the conclusion that it reached. (Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 and Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123).

21. As I said earlier, the document was an identity test, or verification of, the applicant’s identity.  In fact, it confirmed the applicant’s identity, a matter that was not at issue before the Tribunal because the Tribunal accepted that the applicant was who he said he was. 

22. Therefore, the existence of the certificate, and the document to which it related could not have affected the outcome.  In short, it was not material to the outcome. No jurisdictional error is revealed.

23. In all, therefore, the grounds of the application put to the Court do not reveal jurisdictional error on the part of the Tribunal. Nothing that the applicant told the Court today assisted his grounds or otherwise indicated any jurisdictional error on the part of the Tribunal.  The matter raised by the Minister, fairly, also does not reveal jurisdictional error on the part of the Tribunal. 

Conclusion

1. It is appropriate that the application to the Court be dismissed. I will make that order.

Costs

1. It is appropriate that an order for costs be made in this matter in the usual way.  As I sought to explain to the applicant, a successful party to Court proceedings of this type is able to ask the Court to make such an order. The fact that the Minister engaged lawyers to represent him is entirely appropriate.

2. The only argument raised by the applicant against the making of the order is that he does not have money, or he does not have so much money as was sought by the Minister.  He has worked hard and has had to pay taxes. 

3. Even if that is the case, a lack of funds or, as is described, impecuniosity, is not a basis upon which not to make the order.  If the applicant lacked funds, then that is a matter for him to have thought about before initiating and prosecuting these proceedings.  It is not a sufficient reason not to make the order.

4. As to the amount, I am satisfied on what is contained in the Court’s file that it is a reasonable amount, given the work done by the Minister’s solicitors in responding to the applicant’s case. 

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 1 September 2020