DEC16 v Minister for Immigration

[2017] FCCA 2944

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEC16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2944

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – no grounds filed in application with Court – application filed for purpose of staying in Australia – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 438

Cases cited:

Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183
MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081

Applicant: DEC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2920 of 2016

Judgment of: Judge Smith

Hearing date: 17 October 2017

Date of Last Submission: 17 October 2017

Delivered at: Sydney

Delivered on: 17 October 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr A Keevers, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2920 of 2016

DEC16

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 review of a decision of the Administrative Appeals Tribunal (Tribunal) given on 30 September 2016.  The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.  There are no grounds in the application filed in the Court and no amended application was filed by the applicant, even though she was given leave to do so, once she was served with a court book by the first respondent’s solicitors.  

2. The applicant appeared unrepresented today and I asked her what her complaint about the Tribunal’s decision was.  She replied, quite frankly, that she had no complaint about the Tribunal’s decision; that she filed the application in the Court simply to stay in Australia because she could not go back to Malaysia.

3. On one view, that is clear evidence of an abuse of process and sufficient grounds to dismiss the application without further consideration.  However, given that the applicant is unrepresented, I have considered the material before the Court and will give reasons as to why the application ought to be dismissed in any event.

4. The applicant lodged a protection visa application on 21 September 2015.  Her claims are set out at [10] and [11] of the Tribunal’s decision, together with a summary of the evidence given to the Tribunal.  I set these out below:

   10.    In her protection visa application the applicant claims, in summary:

   • She was bam in Sibu, Sarawak, Malaysia in 1993 and lived at an address in Sibu from 1993 to June 2015 when she travelled to Australia. She claims to have received a total of ten years of formal education in Malaysia, ending in 2010, but gives no details of her employment history. She lists her parents and two brothers as living in Sibu. She obtained her Australian tourist visa on 16 May 2015 and arrived in Australia on 27 June 2015.

   • She left Malays because her life was under threat by drug dealers (an ‘illegal drug selling company’ who forced her to deal drugs. She rejected the pressure and reported it to the police causing the drug dealers to begin tracking and threatening her.

   • She fears that if she returns to Malaysia she will come under further life-threatening pressure. They might sell her to a brothel or to another person, for revenge. They might sell her to a body-organ market. She does not want to wake up to find her liver or kidney is gone. She cannot sleep at night.

   • The police cannot protect her all the time. Additionally, the drug dealers have connections inside the police system, making it very unsafe for her.

   11.    The Applicant appeared before the Tribunal on 7 September 2016 to give evidence and present arguments. The hearing was assisted by an interpreter in the Mandarin and English languages. The applicant's evidence was, in summary:

   • She came to Australia because she was being bullied and there was no way out. Asked who had bullied her she said they were gangsters. Asked which gangsters they were she said they were members of the underworld. Asked again she said she was not sure but she knew they had a very important background. Asked what she meant by this she said they are well known for selling and buying drugs, against the law. Asked about these drugs she identified them as heroin and similar substances. Asked if she knew any of the gangsters personally she said she was not sure.

   • Asked why the gangsters were bullying her she said that when she was working they asked her to help them sell drugs. She refused and went to the police, resulting in the business being closed. They knew she had reported them.

   • Asked about her employment at the time she said she was serving beer in a bar in Puchong, Kuala Lumpur. Asked the address of the bar she said she was not sure. Asked its name she gave it as the Q  Bar. Asked who owned it she said was not sure. Asked when she started work there she said it was at about the end of 2014 - before that she worked in a cafe in another area of Kuala Lumpur.

   • In about March 2015 she was asked to deal drugs by the manager of the Q Bar, a person named Peter who was also ethnically Chinese. Asked this person’s full name she said she was not sure. She refused to do as he asked and went to the police. Because the police took action the bar was closed down temporarily - she was not sure for how long.

   • Asked how the gangsters knew of her role in the police taking action against the bar she said she was not very sure. She did not know if they knew she had contacted the police but they were looking for her at her accommodation - a kind of dormitory which she shared with two flatmates - a week later. She was not home but neighbours from the adjoining room told her that three men arrived. Asked what the men said she replied that she was not sure - they did not speak to the neighbours. Asked if they spoke to anyone she said the neighbours saw them knocking on the door and then kicking it when nobody answered. When she returned home several hours later the neighbours told her what had happened.

   • Asked what happened next she said they kept on looking for her but she hid and they could not find her. They then approached her family in Sibu, Sarawak. Asked what they told her family she said they accused her of ruining their business. They threatened the family, saying that if they could not find her they would look for them. She had to warn her family to go to Sabah for safety. She herself had no option but to come to Australia to seek protection.

   • Asked where it was that she hid from the gangsters she said it was with a friend in Kuala Lumpur. Asked if she had sought help from the police she said she approached them but they could not protect her 24 hours a day so she had to hide. Asked how she had obtained the money for her travel to Australia if she was not working she said she was able to borrow it from her friend as her family is wealthy. They had a good relationship and the friend trusted her. She explained how much she needed and her friend gave her the money.

   • I noted that the Tribunal has a range of information about the effectiveness of the police and other authorities in Malaysia which indicates they would provide her with a reasonable degree of protection against criminal threats if she requested it. She said she did not believe they could protect her all the time. Something would happen and her parents were worried about her so she decided to run away overseas.

   • I put to her that although I had reached no conclusions in her case, the information before the Tribunal could cast doubt on the truth of her claim that she feared harm in Malaysia, that criminals had wanted her to be involved in drugs, that they threatened and tried to harm her when she refused and that she would be at risk of harm from them if she were to return. She indicated she had no comment to make.

   • I put to her that it seemed difficult to understand why, if she feared harm from gangsters and was hiding from them, she would have delayed her departure from Malaysia for more than five weeks after receiving her Australian tourist visa on 16 May 2015, as indicated in Departmental movement records. She said she had wanted to see her family before she left. I suggested that if she had genuinely feared harm as she claimed her first priority would have been her own safety. She said her family had wanted to see her. She confirmed she understood the information regarding the dates of her visa issue and her departure from Malaysia. I explained that the information was important and significant for her case because it could lead to a conclusion that she did not fear harm from drug dealers in Malaysia as she claimed, and that such a conclusion would be a reason to affirm the delegate’s decision not to grant her a protection visa. She confirmed that she understood why the information was significant. Pursuant to s.424AA I invited her to comment on the information or respond to it, explaining that she could do so immediately, at a resumed session of the hearing or later in writing, with further time available for this purpose if required. She indicated that she wished to respond in writing and it was agreed that she could have until 14 September 2016 to do so.

   • Asked if there was anything she wished to add she said there was not.

5. On 25 January 2016, a delegate of the Minister decided to refuse to grant the applicant a protection visa, and she applied to the Tribunal for review of that decision.  The applicant attended a hearing conducted by the Tribunal and the Tribunal handed down its decision on 30 September 2016, affirming the decision of the delegate. 

Tribunal’s decision

1. The Tribunal rejected the applicant’s factual claims.  It was not satisfied that the applicant would suffer serious harm if she returned to Malaysia, or significant harm, and therefore did not meet the criteria for the grant of a protection visa.  Its reasons were set out succinctly in [16] and [17] of its reasons which I set out below:

   16.    In the present case the Applicant’s claims to have been pursued by drug dealers in Malaysia are confined to a number of simple and unsubstantiated assertions. Her written account in her protection visa application consists of no more than a few lines and is devoid of circumstantial detail. Her oral evidence at the hearing added very little to her written claims and she was notably vague about most elements of the alleged threats and pursuit which she maintains forced her to flee to Australia, despite the dramatic and memorable character these events might reasonably be expected to have if they had in fact occurred. Having considered all her evidence I have doubts as to the credibility of her claims, for the following reasons:

   • First, having considered her evidence at the hearing I am not satisfied that even if she had refused a request from the manager of a bar in which she worked to deal drugs there is any reason to believe this would have served to identify her as the person who reported the matter to the police, leading to the bar being temporarily shut down. She was able to offer no explanation as to how they would have been able to make this connection, beyond the claim that she heard from neighbours a week later about three men who had come to her apartment and knocked on the door then kicked it.

   • Second, even if such figures had discovered that she had gone to the police when she refused to distribute drugs as they asked her to do, I find it generally implausible that they would devote their energies over the following months to tracking her down, going so far as to travel to Sarawak in Eastern Malaysia to threaten her parents for this purpose.

   • Third, as put to her at the hearing I am not satisfied that her delay of more than five weeks in leaving Malaysia after she obtained her Australian tourist visa is consistent with the actions of a person who genuinely feared for her safety as a result of being pursued by criminals and who was driven to the extreme of leaving her home to find protection in a foreign country. I accept she might well have wished to see her family before she left, and that this is what she probably did in practice, but I am not satisfied a desire to do so would plausibly have taken precedence in the circumstances of the dire threat to her personal safety which she asserts.

   17.    Taking these considerations together I am not satisfied as to the truth of the Applicant’s claims that she refused a request by her boss to deal drugs, that she reported the matter to police or that she was subsequently pursued by drug dealers who wished to take revenge on her for harming their business. This being the case I am not satisfied she would now be at risk of harm for such a reason in Malaysia. She does not claim to fear harm in Malaysia for any other reason and no other reason is apparent on the face of the information before the Tribunal.

Consideration

1. As I have observed the applicant raised no complaint about the Tribunal’s decision and I can see none in its reasons. In particular, I note that the Tribunal’s reasons turned upon its findings of fact which, in turn, were based on its assessment of the applicant’s evidence and claims which were made in an unexceptional way. In terms of procedure, the applicant was given the opportunity to attend a hearing conducted by the Tribunal in accordance with s.425 of the Migration Act 1958 (Cth) (Act), and was given particulars of information that the Tribunal considered would be the reason, or part of the reason, for its decision[1].   

   [1] See the second last dot point of [11] of the Tribunal’s reasons.

2. Subject to one matter, to which I will come to in a moment, I can see no procedural difficulties or error made by the Tribunal. There was however, a certificate before the Tribunal purporting to have been given under s.438 of the Act. The certificate certifies that sub-s.438(1)(a) of the Act applies to information in folio 55 in CLF2015/59005 and explains that the disclosure would be contrary to the public interest because the information contained in it, related to an internal working document and business affairs.

3. The Minister brought this to the attention of the Court and rightly conceded that that certificate was not a valid certificate given under s.438 of the Act, in light of the decisions in the Federal Court in MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081 (MZAFZ) and Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183 (Singh). However, the Minister submitted, and I accept, that the existence of the s.438 certificate does not give rise to any jurisdictional error. In the alternative, even if it did, I would refuse relief on the basis of my exercise of discretion.

4. The reason for both of those conclusions is that even though it appears that the Tribunal did not bring the existence of the certificate to the attention of the applicant, the Tribunal did not in any way, appear to rely upon it, or act upon it, in the manner mentioned by Beach J in MZAFZ.  In any event, even if the applicant had been given the opportunity to see the certificate and make submissions about it, or indeed to see the documents underlying the certificate, it could not have made any difference to the outcome of review. 

5. The document in question is an identification test which relates to a test conducted apparently on 12 October 2015 concerning checks made by an officer of the Department of the identifiers concerning the applicant.  The applicant’s identification was never an issue before the Tribunal, it having been accepted by the delegate, and nothing in the document would in any event, have undermined the acceptance of her identity.  Rather, it would have affirmed that acceptance and thus, been favourable to her. 

6. For those reasons, the decisions in MZAFZ and Singh are distinguishable. As I have mentioned, the result is either that:

   i)there was no jurisdictional error as a result of any conduct, or absence of conduct in relation to the certificate in the underlying document; or 

   ii)relief ought to be refused in the exercise of the Court’s discretion. 

Conclusion

1. For those reasons, I conclude that the Tribunal’s decision was not affected by jurisdictional error.  As the Court’s jurisdiction to award or to grant constitutional writs depends upon there being jurisdictional error affecting the Tribunal’s decision, the result is that the application must be dismissed. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     30 November 2017