DGI16 v Minister for Immigration

[2017] FCCA 1341

FEDERAL CIRCUIT COURT OF AUSTRALIA

DGI16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1341

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – protection visa – whether the Tribunal misconstrued the applicant’s fear of harm – whether the Tribunal failed to give clear particulars – whether the Tribunal’s decision was biased – no jurisdictional error identified –application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 424A, 438, 476

Applicant: DGI16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3007 of 2016

Judgment of: Judge Street

Hearing date: 20 June 2017

Date of Last Submission: 20 June 2017

Delivered at: Sydney

Delivered on: 20 June 2017

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents:

Mr T Galvin

Minter Ellison

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3007 of 2016

DGI16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 September 2016 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Malaysia and is a Muslim of Pakistani ethnicity.

Claims for protection

1. The applicant claimed to fear harm because of certain alleged incidents prior to his departure that included alleged borrowing of money from money lenders for his furniture business. The applicant alleged that a local gang started demanding protection money from him, which he refused to pay. The applicant alleged he reported the matter to the police, but the police were affiliated with the gang.

2. The applicant alleges he was threatened by the gang two months later and the police took no action. The applicant alleges the gang members threatened to kill the applicant and injured his shop staff. The applicant alleges he then closed the shop and fearing harm from the gang members and money lenders, he left Malaysia. The applicant also expressed concern because of his Pakistani ethnicity. The applicant arrived in Australia on 24 November 2014 as the holder of an Electronic Travel Authority visa and did not apply for protection until 27 August 2015. On 21 January 2016, the delegate refused to grant the applicant a protection visa and found the applicant failed to meet the criteria under the Act.

3. On 23 February 2016, a certificate was issued under s.438 of the Act in respect of folio 50. The certificate stated the disclosure of this information will be contrary to public interest because the aforementioned folio contained information relating to an internal working document and business affairs. Document 50 was an application of identification test details referring to the applicant’s identity as being Malaysian.

The Tribunal’s decision

1. On 19 February 2016, the applicant applied for review. The applicant was invited to attend a hearing on 26 September 2016, which the applicant attended to give evidence and present arguments. The Tribunal identified the relevant law in attachment A to the reasons, which was expressly incorporated in paragraph 6 of the Tribunal’s reasons.

2. The Tribunal referred to the certificate under s.438 and found that the certificate was invalid and identified that the information in the certificate was not relevant to the decision.

3. The Tribunal identified the applicant’s background and claims. The Tribunal made adverse credibility findings in relation to the applicant and provided rational and logical reasons in support of those adverse credibility findings.

4. The Tribunal did not accept the applicant refused to meet extortion demands or pay protection money on several occasions in 2014 or that this led to death threats, ransacking of his shop, assaults of shop staff or other harm or that he or his father reported these incidents to police or that the gang had an adverse interest in the applicant whether for his non-payment of any expected bribes, any contact he or his father had with the police, or any cases that he filed against them as these did not occur.

5. The Tribunal did not accept that the applicant had any outstanding issues with creditors, whether regular or unlicensed lenders, that caused him to fear for his safety. The Tribunal found that the applicant left Malaysia for reasons unrelated to his protection claims.

6. The Tribunal found there was no reasonable chance of anyone seeking to pursue or harm the applicant for any reason linked with the family’s former business. The Tribunal was not satisfied the applicant faces a real chance of discrimination or harm amounting to persecution as a person of Pakistani origin, a potential future businessman, or for any other reason.

7. The Tribunal found there was no real chance the applicant would face serious harm amounting to persecution if he returns to Malaysia for any of the reasons set out in s.5J(1) of the Act. The Tribunal was not satisfied the applicant has a well-founded fear of persecution for the reasons enumerated in s.5J(1) now or in the foreseeable future if he returns to Malaysia. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

8. The Tribunal was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is a real risk that he would suffer significant harm within s.36(2)(aa) of the Act. Accordingly, the Tribunal affirmed the decision of the delegate.

Proceedings before this Court

1. On 9 March 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or denial of procedural fairness to the applicant. The Court explained that in summary, this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for a further hearing. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed.

3. The Court explained that it would have identified the evidence. The Court explained that it would then hear submissions from the applicant and, provided the applicant put submissions, that it would then hear submissions from the first respondent, and then hear from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

4. From the bar table, the applicant indicated that he did not wish to put any submissions. The Court repeated that it would not call upon the first respondent if the applicant had nothing to say. The applicant confirmed that he did not wish to put any submissions.

Grounds of the application

1. The grounds of the application are as follows:

   1. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

   The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon his returns to Malaysia.

   2. The second respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

   Particular:

   The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

   3.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act.

   4. The Tribunal has failed to investigate applicant's claim, specially the grounds of persecution in Malaysia. Therefore the Tribunal decision dated 4 October 2016 was effected by actual bias constituting judicial error.

   (errors in original)

Consideration

Ground 1

1. The Tribunal correctly identified the relevant law in its reasons and, on the face of the material before the Court, the Tribunal complied with its statutory obligations and complied with the requirements of procedural fairness in the conduct of the review. The adverse findings by the Tribunal were open and cannot be said to lack an evident and intelligible justification. There is no substance in the contention that the Tribunal misconstrued the legislation and, in substance, Ground 1 is an impermissible challenge to the adverse findings of fact made by the Tribunal. The adverse findings were open, logical, and reasonable. No jurisdictional error is made out by Ground 1.

Ground 2

1. In relation to Ground 2, no information is identified enlivening any obligation under s.424A. There is no basis in the contention that the Tribunal was required to take steps under s.424A in the present case. No jurisdictional error is made out by Ground 2.

Ground 3

1. In relation to Ground 3, this appears to be an endeavour to invite the Court to engage in an impermissible merits review. The Tribunal refused the grant of the applicant’s protection because it was not satisfied the applicant met the prescribed criteria for the grant of a visa. The Tribunal correctly identified the law and made findings that were open to it from the material before it for the reasons given. Ground 3 fails to make out any jurisdictional error.

Ground 4

1. In relation to Ground 4, it was for the applicant to advance the claims and evidence he wished in support of his case. There is no identifiable critical fact identified to enable any obligation from the Tribunal to make further investigation into the applicant’s protection claims. It was the applicant’s responsibility to advance information in support of his contention that he met the criteria for the grant of a protection visa.

2. Neither the allegation of a failure to take steps that the Tribunal was not required to take or the adverse findings that the Tribunal made amount to conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. Bias is an allegation that must be properly proved and clearly needs to be properly proved. No allegation of bias is made out. No jurisdictional error is made by ground 4.

Certificate material

1. The first respondent, as a model litigant, has drawn the Court’s attention to the existence of two certificates issued under s.438. It was only the certificate dated 23 February 2016 that was before the Tribunal as the second certificate post-dates the Tribunal’s decision. The Tribunal correctly identified that the certificate was invalid and indicated that it did not have regard to the information in its decision.

2. The information, the subject of the certificate, concerned the applicant’s identity and no issue was raised before the Tribunal contesting that the applicant was not a national of Malaysia. No reference was made to the information, the subject of the certificate, in the reasoning of the Tribunal. I am satisfied no practical injustice was occasioned to the applicant in the conduct of the review by reason either of the failure to disclose the invalid certificate or the information that was the subject of that certificate to the applicant.

3. Accordingly, this is not a case where the existence of the invalid certificate could give rise to jurisdictional error. Further, I am satisfied in the circumstances of the present case that the document the subject of the certificate could not possibly have impacted on the outcome of the review and for this reason, relief should be refused on discretionary grounds.

Conclusion

1. Accordingly, no jurisdictional error was made out in the application. The application is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 18 July 2017