DJY17 v Minister for Immigration
[2020] FCCA 2235
•12 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DJY17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2235 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Malaysia – applicant failing to attend Tribunal hearing – various grounds of review advanced – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 441A, 425, 425A, 426A |
| Cases cited: Minister for Immigration v Ahmed (2005) 143 FCR 314 NAVX v Minister for Immigration [2004] FCAFC 287 Randhawa v Minister for Immigration (1994) 52 FCR 437 S146 of 2003 v Minister of Immigration [2006] FCA 502 Wu v Minister for Immigration (1994) 48 FCR 294 Yilmaz v Minister for Immigration (2000) 100 FCR 495 Zubair v Minister for Immigration (2004) 139 FCR 34 |
| Applicant: | DJY17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2386 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 August 2020 |
| Delivered at: | Sydney |
| Delivered on: | 12 August 2020 |
REPRESENTATION
| The Applicant appeared in person by telephone |
| Solicitors for the Respondents: | Ms P. Durham of Sparke Helmore Lawyers |
ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application filed on 28 July 2017 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2386 of 2017
| DJY17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 27 June 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts concerning the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s submissions filed on 5 August 2020.
Background
The applicant, a citizen of Malaysia, arrived in Australia on 24 August 2016 as the holder of an Electronic Travel Authority visa.[1] On 14 November 2016, he lodged the application for the visa.[2]
[1] Court Book (CB) 56
[2] CB 1-37
The applicant’s claims for protection were set out in his visa application form.[3] In essence, he claimed that racist Malay gangsters threatened and assaulted him on repeated occasions due to his involvement in an “incident” that occurred on 13 May 1963 and his Chinese heritage. He claimed that they told him to leave Malaysia because of the “incident” in 1963. He also claimed that he had attempted to obtain assistance from the police but they did not help him.
[3] CB 32-34
On 21 February 2017, the delegate refused to grant the applicant the visa.[4]
[4] CB 56-64
On 19 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision.[5]
[5] CB 65-66
On 22 May 2017, the Tribunal wrote to the applicant indicating that it had considered the material before it but was unable to make a favourable decision on this information alone. In the circumstances, the Tribunal invited the applicant to appear before it at a hearing scheduled for 22 June 2017.[6] The hearing invitation was sent to the nominated email address on the application for review and complied with the relevant legislative requirements because it:
a)was sent to the applicant by email to the last email address provided to the Tribunal in connection with the review in accordance with s.441A(5)(b) of the Migration Act 1958 (Cth) (Migration Act);[7]
b)afforded the applicant a period in excess of the prescribed period of notice of the hearing as required by s.425A(3) of the Migration Act and Regulation 4.35D of the Migration Regulations 1994 (Cth) (Regulations);
c)advised the applicant of the effect of s.426A (namely, the consequences of the failure of the applicant to appear before the Tribunal); and
d)informed the applicant of the time, date and location of the hearing, as required by s.425(1) of the Migration Act.
[6] CB 71-72
[7] CB 70
The applicant did not respond to the hearing invitation, and did not attend the hearing on 22 June 2017.[8]
[8] CB 73
On 27 June 2017, the Tribunal proceeded to make a decision on the review pursuant to s.426A(1A)(a) of the Migration Act without taking any further action to allow or enable the applicant to appear before it. The Tribunal affirmed the decision under review.[9]
[9] CB 78-84
Tribunal decision
The Tribunal referred to the hearing invitation sent to the applicant on 22 May 2017, which advised that the Tribunal was unable to make a favourable decision on the material before it and invited the applicant to attend a hearing on 22 June 2017.[10] The Tribunal recorded that it did not receive a response to the hearing invitation and had also sent a text message on 21 June 2017 reminding him of the hearing date.[11]
[10] CB 79, [6]
[11] CB 79, [6]-[7]
As the applicant did not attend the hearing or otherwise contact the Tribunal, it elected to proceed to make its decision on the review, pursuant to s.426A(1A)(a) of the Migration Act.[12]
[12] CB 79, [7]
The Tribunal found that the applicant’s claims were brief, vague and lacking in detail in significant respects, and that it had limited and insufficient evidence in respect of the applicant’s claims.[13] In light of the limited evidence available, the Tribunal was unable to be satisfied of the applicant’s claim to have been threatened and/or assaulted by Malay gangsters on repeated occasions due to his involvement in an incident on 13 May 1963. The Tribunal was unable to be satisfied that the applicant had left Malaysia due to those incidents.[14]
[13] CB 80-81, [13]
[14] CB 81, [14]
The Tribunal was not satisfied that the applicant would be harmed by gangsters or any other person or group if he were to return to Malaysia in the reasonably foreseeable future.[15] It also had regard to independent country information and found that, although not specifically raised, the applicant did not face a real chance of serious harm for reasons of the applicant’s Chinese ethnicity generally.[16]
[15] CB 82, [18]
[16] CB 82, [19]
The Tribunal was accordingly not satisfied that the applicant had a well-founded fear of persecution or met s.36(2)(a) of the Migration Act.[17] On the basis of its anterior findings, the Tribunal was also not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a real risk he would suffer significant harm. It therefore proceeded to find that the applicant did not satisfy the criterion in s.36(2)(aa) of the Migration Act and affirmed the decision to refuse the grant of a protection visa.[18]
[17] CB 83, [21]-[22]
[18] CB 83-84, [24]-[28]
The current proceedings
These proceedings began with a show cause application filed on 28 July 2017. The applicant continues to rely upon that application. The grounds in it are:
1. Tribunal does not consider whether there existed any unfairness when immigration officer dealt with my application.
For example, Tribunal does not consider whether immigration officer dealt with my case fairly or disclosed to me information properly.
2. Tribunal does not properly consider discrimination against ethnic Chinese in Malaysia, although there is some evidence of positive discrimination in favour of Malays.
3. Tribunal does not properly consider whether I will suffer harm if I return to Malaysia based on wrong understanding of my situation
(errors in original)
The application was supported by a short affidavit filed with it, in which the applicant repeats his claims for protection. I received that affidavit as a submission. In addition to the court book filed on 23 November 2017, I have before me as evidence the affidavit of Alana Lucchese made on 5 July 2018. Attached to that affidavit is a record of two SMS hearing reminders sent to the applicant on 15 June 2017 and 21 June 2017.
This matter was originally docketed to Judge Barnes, but at a call over on 13 March 2019 she transferred the matter to me. The applicant attended today’s hearing by telephone, assisted by a friend with him and a Cantonese interpreter in court. He was unsure whether he had received the Minister’s submissions. In any event, he had not read them. I dealt with that by having the interpreter read the submissions to the applicant in the Cantonese language. I then invited oral submissions from the applicant. His submission in chief did not extend beyond the grounds in his application. Those grounds are dealt with in the Minister’s submissions. I agree with those submissions and adopt them.
The applicant’s complaint in Ground 1 is that the Tribunal failed to consider whether there “existed any unfairness” when the delegate considered the application cannot be sustained. The Tribunal was conducting a de novo review and was not required to assess the delegate’s reasoning. If the Tribunal’s decision is not flawed, it will have cured any defects and irregularities in the delegate’s decision.[19] There are no flaws in the Tribunal’s decision or processes and this contention must fail.
[19] Wu v Minister for Immigration (1994) 48 FCR 294; Yilmaz v Minister for Immigration (2000) 100 FCR 495; Zubair v Minister for Immigration (2004) 139 FCR 344; and Minister for Immigration v Ahmed (2005) 143 FCR 314
Grounds 2 and 3 can be dealt with together. They allege that the Tribunal did not properly consider discrimination against ethnic Chinese in Malaysia, or whether the applicant would suffer harm if returned to Malaysia. These contentions fail at a factual level. The Tribunal plainly considered the applicant’s claims advanced in the material before it.[20] The Tribunal then expressly considered the applicant’s claims to fear harm on return to Malaysia, including whether the applicant faced discrimination generally as an ethnic Chinese in Malaysia, but it was not satisfied on the limited evidence from the applicant before it and with reference to country information that they gave rise to a real chance or risk of harm.[21]
[20] CB 79-80, [8]
[21] CB 82, [18]-[19]
The brevity of the Tribunal’s decision record is a reflection of the scant evidence before the Tribunal and the applicant’s failure to appear at the hearing to give evidence and present arguments. Further, it was not required to uncritically accept those claims. [22] In circumstances where the Tribunal wrote to the applicant and indicated that it was unable to make a favourable decision on the material before it and had invited him to attend a hearing, the Tribunal’s rejection of the applicant’s claims was an inevitable consequence of his non-attendance.[23] Contrary to the applicant’s contention, his claims were “properly considered” despite his non-attendance before the Tribunal.
[22] Randhawa v Minister for Immigration (1994) 52 FCR 437 at [451] per Beaumont J
[23] See S146 of 2003 v Minister of Immigration [2006] FCA 502 at [17]; SZDXC v Minister for Immigration [2005] FCA 1306 at [16]; NAVX v Minister for Immigration [2004] FCAFC 287 at [5]
The contentions raised by the applicant fail to establish any jurisdictional error in the Tribunal’s decision.
In his submissions in reply, the applicant said that he was confused about the date of the Tribunal hearing. Although the hearing invitation sent to him clearly nominates the hearing date of 22 June 2017, the applicant says that he thought that it was in July. He was unable to explain why he made no response to the hearing invitation. In my view, his assertion of confusion lacks credibility in the face of the two SMS hearing reminders sent to him.
When the applicant failed to attend the Tribunal hearing to which he was invited, the Tribunal was entitled to exercise its discretion to proceed in his absence. Any confusion in the mind of the applicant does not suggest any error by the Tribunal. I conclude that the applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The Tribunal decision is therefore a privative clause decision, and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,000. The applicant indicated that he may wish to pay by instalments, but he did not oppose a costs order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 18 August 2020
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