DKM16 v Minister for Home Affairs

[2019] FCCA 608

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKM16 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 608

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal identified the relevant law – whether the Tribunal’s adverse credibility findings were open on the material before it – whether the Tribunal had a duty to investigate the applicant’s claims – whether the Tribunal brought an independent and impartial mind to the determination of the matter – no jurisdictional error made out – application dismissed under r 44.12 of the Federal Circuit Court Rules 2001.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r. 44.12

Migration Act 1958 (Cth), ss.5H, 5J, 36, 424A, 476

Applicant: DKM16

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3136 of 2016

Judgment of: Judge Street

Hearing date: 12 March 2019

Date of Last Submission: 12 March 2019

Delivered at: Sydney

Delivered on: 12 March 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms M Butler
Sparke Helmore

ORDERS

1. The oral application for an adjournment is refused.

2. The application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The applicant pay the first respondent’s costs fixed in the amount of $3,606.00.

DATE OF ORDER: 12 March 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3136 of 2016

DKM16

Applicant

And

MINISTER FOR HOME AFFAIRS

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) (“the Act”) in respect to a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 October 2016, affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Malaysia and his claims were assessed against that country. When the applicant arrived in Australia he was the holder of an Electronic Travel Authority from 16 September 2014, which was valid until 16 December 2014. It was not until 11 November 2014 that the applicant applied for a protection visa.

3. The applicant claimed that in March 2014, he was attending a Sunni mosque in Pakistan when he was attacked by thousands of Shias. The applicant alleges he was attacked because the Shias in the mosque had insulted their religion. The applicant alleges some people were beaten and killed and that the mosque was burnt down. The applicant alleges he escaped and returned to university some days later. The applicant alleges he was the subject of an attempt to coerce him into joining a Sunni group that was desirous of taking revenge on the Shia population. The applicant alleges that he then found out a friend of his who had been at the mosque had been killed and he fled to Malaysia.

4. The applicant’s statement in support of the protection visa made express reference to people having been killed by a Shia group in Malaysia under the instruction of the Pakistani Shia Organisation. There was no reference in the applicant’s statement to Irani Shias. On 28 May 2015, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

5. On 23 June 2015, the applicant applied to the Tribunal for review. By letter dated 14 September 2016, the applicant was invited to attend a hearing on 12 October 2016. The applicant appeared on that date to give evidence and present arguments. The Tribunal in its reasons identified the background to the review application as well as the relevant law.

6. The Tribunal summarised the applicant’s claims. The Tribunal accepted that in March 2014, the applicant was attending a Sunni mosque in Pakistan when it was attacked by thousands of Shias. The Tribunal accepted that the attack was because the Shias in the mosque had insulted their religion. The Tribunal referred to the applicant claiming that he later returned to university and noted that his friend had been killed and that he fled to Malaysia. The Tribunal did not accept the applicant’s claims in relation to Malaysia as being credible. The Tribunal identified reasons in support of the same. The Tribunal identified that the applicant’s claims that he was identified and attacked in two different locations in Malaysia by two groups of different Urdu speaking men due to him being filmed in a mosque in Pakistan that was attacked was found to be far-fetched and implausible.

7. The Tribunal noted the applicant told the Tribunal that he had not joined any Sunni group seeking revenge for the mosque attack and there is no other apparent basis why the applicant was specifically targeted. The Tribunal also took into account country information and found it implausible that the applicant was targeted and found that this impacted on the applicant’s credibility.

8. The Tribunal also took into account that the applicant did not mention at all in his protection visa application and statement his later claims that he was physically attacked in Malaysia by two different groups in two different locations. The Tribunal also took into account that the applicant speaks, reads and writes English and that he has undertaken tertiary studies. The Tribunal did not accept the applicant’s explanation for failing to raise those matters and found that they were critical incidents and that this further undermines the applicant’s credibility.

9. The Tribunal did not accept that the applicant while in Malaysia was ever attacked by Shia men or forced to move to a different city. The applicant did not accept the applicant is of adverse interest to Shias in Malaysia or anyone else.

10. The Tribunal found there are not 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 the applicant will suffer significant harm.

11. The Tribunal found the applicant’s fears are not well founded within the meaning of s 5J of the Act and that the applicant did not meet the requirements of the definition of refugee in s 5H of the Act. The Tribunal was not satisfied the applicant met the criteria in s 36(2)(a) or s 36(2)(aa) of the Act and affirm the decision under review.

Before this Court

1. These proceedings were commenced on 14 November 2016. On 23 March 2017, a Registrar of the Court made orders by consent giving the applicant an opportunity to file an amended application and affidavit evidence, including an affidavit in respect of the transcript of the hearing. No such documents were filed. The orders also made provision for the filing of written submissions 14 days prior to a hearing date and seven days before a hearing date. The orders also addressed the service of a Court book and provided liberty to apply.

2. On 21 February 2019, this Court made orders fixing the matter today for hearing. The Court, in that regard, also previously granted liberty to apply on two days’ notice. On 21 February 2019, a consent order was made listing the matter for a show cause hearing under r 44.12 of the Federal Circuit Court Rules2001 (Cth). No submissions were filed by the applicant in accordance with the orders that were made by the Registrar on 23 March 2017. Submissions were filed and served in accordance with the orders by the Minister on 5 March 2019.

3. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing under r 44.12 of the Federal Circuit Court Rules2001, and the applicant confirmed he understood the nature of the hearing as explained by the Court.

4. From the bar table, the applicant indicated that he wished to seek an adjournment. The applicant referred to the orders that were made this year fixing the matter for hearing and that he had anticipated that he would get a first Court date and would seek to obtain legal representation before the matter was fixed for hearing. The Court asked the applicant why he had not been able to obtain legal representation. The applicant’s explanation for not obtaining legal representation referred to taking the orders that had been recently made to see a lawyer and being unable to obtain a lawyer to represent him. The applicant provided no satisfactory explanation as to why he had taken no steps to retain a lawyer since commencing the proceedings on 14 November 2016, or following the orders made by the Registrar on 23 March 2017.

5. The Court is of the view that the applicant has had a reasonable opportunity to retain a lawyer, if he was able to do so. The Court is not satisfied, from anything said by the applicant, that an adjournment would be of any utility or that the applicant would be able to obtain representation. Further, the Court takes into account the want of substantive merits in the application presently before the Court. In these circumstances, the Court is not satisfied that an adjournment is warranted in the interest of the administration of justice.

6. From the bar table, the applicant asserted that there had been a misunderstanding by the Tribunal of the nature of his claims and asserted that he feared Irani Shias. There is nothing in the applicant’s statement, the delegate’s decision or the Tribunal’s reasons to support that contention. It is apparent from the applicant’s statement that he identified Pakistani Shia’s as the subject matter of his fear. The applicant’s submission as to an alleged misunderstanding by the Tribunal is inconsistent with the comprehensive reasons of the Tribunal and does not identify any arguable case of relevant error.

7. The applicant also asserted from the bar table that there had been interpretation issues that he wished to advance. There was an order made by the Registrar giving the applicant an opportunity to put on a transcript and the applicant did not do so. There is no evidence before the Court to support any assertion of any interpretation difficulty by the applicant at the hearing. The Court also takes into account the applicant’s ability to speak English. The Court would have expected there to have been an issue raised and identified in the applicant’s application, if not before the Tribunal if there was any such issue. The applicant’s assertion of interpretation issues from the bar table does not identify any arguable case of relevant error.

8. The applicant’s submissions from the bar table otherwise invited this Court to engage in merits review. This Court has no power to review the merits. On the face of the material before the Court the Tribunal made dispositive findings in respect of the applicant’s claims that were open for the reasons given by the Tribunal as summarised above. No arguable case of relevant error is made out by anything said by the applicant from the bar table.

The grounds

1. The grounds in the application are as follows:

   1. The Tribunal misconstrued the risk and fear of significant harm as set out in s 36(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 pan: 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 19 October 2016 was effected by actual bias constituting judicial error.

2. Ground 1 is a bare assertion of misconstruction of the relevant test in respect of significant harm. On the face of the Tribunal’s reasons, the Tribunal correctly identified the relevant law and on the face of the Tribunal’s reasons, the Tribunal correctly applied the relevant law. There is no identification of any misconstruction of the relevant law on the face of the Tribunal’s reasons. No arguable case of relevant error is disclosed by ground 1.

3. In relation to ground 2, no information is identified enlivening any obligation by the Tribunal under s 424A of the Act. The assertion of non‑compliance does not identify any relevant information by reason of which the Tribunal was required to put the same to the applicant either orally or in writing. No arguable case of relevant error is made out by ground 2.

4. In relation to ground 3, the applicant’s assertion that the Tribunal made the decision without reasonable satisfaction does not articulate or identify any arguable case of relevant error. It was for the applicant to establish the claims to support the protection visa. The Tribunal’s reasons reflect logical and rational findings dispositive of the applicant’s claims. Ground 3, in substance, reflects a disagreement with the adverse findings and does not identify an arguable case of jurisdictional error.

5. In relation to ground 4, it was for the applicant to establish the applicant’s claims to the satisfaction of the Tribunal. There was no easily ascertainable material fact identified that could give rise to a duty on the Tribunal to make inquiry. The applicant’s assertion that the Tribunal failed to investigate his claims does not identify any arguable case of relevant error by the Tribunal.

6. Further, insofar as ground 4 alleges bias, an allegation of bias must be clearly alleged and properly proved. There is no evidence before the Court to support any basis for the allegation of bias. The adverse findings by the Tribunal are not 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. On the face of the material before the Court, the applicant had a real and meaningful hearing before the Tribunal and the Tribunal conducted the review with an open mind reasonably capable of persuasion as to the merits. Ground 4 fails to identify any arguable case of jurisdictional error.

Conclusion

1. Accordingly, the Court is not satisfied that the application has raised an arguable case for the relief claimed. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules2001. Accordingly, the application is dismissed under r 44.12 of the Federal Circuit Court Rules2001.

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

Date: 28 March 2019