DKQ16 v Minister for Immigration

[2017] FCCA 1445

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKQ16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1445

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – observations on the correct approach by the Tribunal to the issue of a s.438 certificate – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001(Cth)

Migration Act 1958 (Cth), s.424A, 424AA, 425, 438

AVO15 v Minister for Immigration [2017] FCA 566
BEG15 v Minister for Immigration [2016] FCCA 2778
BIE15 v Minister for Immigration (2016) 314 FLR 392; [2016] FCCA 2978
Minister for Immigration v SCAR (2003) 128 FCR 553
Minister for Immigration v Singh [2016] FCAFC 183
Minster for Immigration v SZNVW (2010) 183 FCR 575
MZAFZ v Minister for Immigration [2016] FCA 1081
SZBEL v Minister for Immigration (2006) 228 CLR 152

First Applicant: DKQ16

Second Applicant: DLD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3160 of 2016

Judgment of: Judge Driver

Hearing date: 22 June 2017

Delivered at: Sydney

Delivered on: 22 June 2017

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Ms Given of HWL Ebsworth Lawyers

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3160 of 2016

DKQ16

First Applicant

DLD16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicants seek review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 19 October 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.  The background facts relating to the applicants’ claims for protection and the decision of the Tribunal on them are conveniently summarised in the Minister’s outline of submissions filed on 15 June 2017. 

Background

1. The applicants are husband and wife and both citizens of Malaysia. They arrived in Australia on 5 November 2011 as the holders of Subclass 976 (Electronic Travel Authority) visas. On 3 March 2012, the applicants were issued with Student visas which expired on 30 October 2013.

2. On 11 February 2016, the applicants applied for Protection visas. In a statement annexed to his visa application, the applicant husband (applicant) claimed he and a friend asked the Malaysian government to reveal the feasibility studies for the Kuala Lumpur to Singapore high speed rail.[1]  The applicant claimed that he encouraged his friend to combine with more people to protest against the government and wrote an open letter to let more people know about the problem. A protest was held on 17 January 2016, and as a result, his friend was arrested, detained and tortured.  The applicant claimed that police had questioned his friend as to who had written the open letter and was involved in organising the protest. The applicant further claimed that he cannot return to Malaysia as the government want to arrest all participants of the protest and mute all opponents.[2]

   [1] CB 62 to 63

   [2] CB 63

3. On 15 April 2016, the delegate refused the applicants' protection visa application.[3] The delegate found the applicant's claims to be far-fetched and fanciful, and rejected them outright.[4] While the delegate accepted as plausible that persons participating in protests in Malaysia could be subject to criminal charges, the delegate was unable to accept that a person with the applicant's profile would be subject to unlawful detention or serious harm amounting to persecution.

   [3] CB 112 to 125

   [4] at CB 123 [38]

4. On 12 May 2016, the applicants sought merits review of the delegate's decision, attaching a copy of that decision to the review application.[5] On 5 October 2016, the applicants attended a hearing before the Tribunal to give evidence and present arguments.[6]

   [5] CB 127 to 146

   [6] CB 161 to 164

Tribunal decision

1. On 19 October 2016, the Tribunal affirmed the decision under review.[7]

   [7] CB 168 to 179

2. The Tribunal rejected the credibility of the entirety of the applicant's claims.[8] In doing so, the Tribunal considered that the written claims were unsupported by any oral evidence and noted that the evidence provided by the applicant lacked detail.[9] The Tribunal was therefore not satisfied that the applicant had (or would have in the reasonably foreseeable future) any profile in Malaysia giving rise to a real chance of serious or significant harm for any of the reasons claimed or arising on the evidence.

   [8] CB 171 [16] and CB 175 [33]

   [9] CB 175 [33]

Present proceedings

1. These proceedings began with a show cause application filed on 16 November 2016.  The applicants continue to rely upon that application. The grounds in it are:

   1.The Administrative Appeal Tribunal misinterpreted the applicable law and misapplied the law to the facts. It misinterpreted the law relating to what persecution is for the purposes of the Refugees Convention.

   2.The AAT erred in its interpretation because it was of the misunderstanding that the Malaysian Government was controlled by Tycoon companies. The protesters will harmed in Malaysia.

   3.The AAT applied erroneous interpretation to the facts, with the consequences that it failed to determine if the standard of protection that Malaysia could offer met the standards of protection required by international standards.

   4.The AAT's satisfaction that the Applicant was not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief. The applicant was approached by a friend to be involved in the protest, so the applicant offered his opinions. The applicant's friend provided him with information.

   5.The AAT did not observe the provisions of the Migration Act, it failed to consider the documentary evidence in the way provided by the Migration Act. The Applicant asked for the feasibility report for the project. The evidence showed that the applicant was persecuted for this reason.

   6.The AAT did not provide the Applicant with an adequate opportunity to respond to the substance of the information. The Applicant would provide more details in support of his application, if the AAT provided him with adequate particulars of the information.

   7.The Applicant attended the Tribunal hearing and gave proper information about his claims. Without the proper consideration of his evidence the Applicant got no procedural fairness.

2. The application is supported by two short affidavits by the applicants which I received. I also have before me the court book filed on 11 April 2017 and an affidavit by Katherine Elizabeth Garaty made on 14 June 2017, to which is annexed documents the subject of a purported certificate under s.438 of the Migration Act 1958 (Cth) (Migration Act).

3. Only the Minister prepared written submissions in accordance with procedural orders made by a registrar.  I invited oral submissions from the applicants today.  Only the first application made submissions.  His complaints focused upon the hearing conducted by the Tribunal on 5 October 2016.  The applicant complained that although he and his wife arrived in the morning, as required, the hearing did not commence until after lunch.  There was an interruption while the Tribunal arranged for a telephone interpreter and then the hearing concluded a short time later. In the applicant’s recollection, the hearing only ran for about 30 minutes. The applicants contend that they were not afforded an adequate hearing opportunity.

4. The refugee hearing record at CB 161 to 163 corroborates, to some extent, the applicants’ factual assertions.  In addition, the invitation to hearing reproduced at CB 154 confirms that they were advised to arrive at the Tribunal hearing place 30 minutes before the scheduled start of their hearing at 9.30 am.

5. The hearing slot, according to the hearing record was between 9.30am and 1.30 pm. However, the hearing did not commence until 2.24 pm and it appears that there was an interruption until 2.55 pm.  It also appears that the interpreter booked for the hearing was, for some reason, unavailable and a telephone interpreter was used.  The hearing record establishes to my satisfaction that the hearing ran for approximately one hour between 2.55 and 3.50 pm.

6. Whilst it is unfortunate that the hearing did not proceed at the scheduled time and the applicants were required to wait a significant period, I am not persuaded that the hearing opportunity afforded to them for that reason was not a real hearing opportunity. Such delays can occur in any court or tribunal and, while unfortunate and best avoided, are a consequence of a busy hearing schedule. 

7. The applicant told me that the grounds in the application were prepared with professional assistance. Apart from his concern about the administrative arrangements for the hearing, he did not address any legal issues arising from those grounds.  He did address his and his wife’s claims for protection and repeated a number of times that they would not return to Malaysia. That, of course, goes to the merits of their claims which are beyond the scope of this proceeding.

8. The Minister’s submissions otherwise deal adequately with the grounds of review. I agree with those submissions.

9. Ground 1 alleges that the Tribunal misapplied the law.  Absent particulars, this ground cannot be sustained.

10. With respect to grounds 2, 3 and 4, the Minister submits that, properly understood, these grounds seek impermissible merits review. I agree.

11. The applicants allege by way of ground five that the Tribunal failed to comply with the Migration Act and failed to consider documentary evidence. The Minister submits that the Tribunal complied with its statutory obligations. I accept that submission. Aside from their visa application, passports, and review application (and the attached delegate's decision), the applicants provided no documentary evidence. This ground also seeks impermissible merits review.

12. With respect to grounds 6 and 7, I accept the Minister’s submission that the Tribunal complied with its statutory obligations pursuant to Division 4 of Part 7 of the Migration Act and there is nothing arising from the Tribunal's reasons to give rise to a suggestion to the contrary.

13. With respect to s.424A, I accept that this is not a matter in which the Tribunal's s.424A obligations were enlivened, and therefore s.424AA also had no work to do.

14. With respect to s.425, the applicants were invited to, and attended, a hearing before the Tribunal on 5 October 2016. The duration of the hearing was approximately an hour. At the hearing, the Tribunal discussed the issues that were dispositive to the review.[10] The Tribunal traversed the evidence with the applicants, including putting to them matters that might cause the Tribunal to conclude that the applicants were not persons to whom Australia has protection obligations.[11]   Further, the delegate's decision put the entirety of the applicant's claims in issue.

    [10] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [33]

    [11] see [21] to [32] CB 173 to 174

15. It is clear the Tribunal complied with s.425 of the Migration Act by giving the applicants a “real and meaningful” opportunity to participate in the hearing and give evidence in support of their application.[12]

    [12] cf. Minister for Immigration v SCAR (2003) 128 FCR 553; Minster for Immigration v SZNVW (2010) 183 FCR 575

16. The Minister’s submissions also raise an issue concerning the purported certificate issued under s.438(1)(a) of the Migration Act. The Minister’s submissions provide the relevant background to the issue.

17. The Tribunal noted, at CB175 to 176 [35], that the Department's file contained a purported certificate pursuant to s.438(1)(a) of the Migration Act. It purportedly certifies that s.438(1)(a) of the Migration Act applies to the information in folios 72 and 108 of the departmental file because disclosure of that information would be contrary to the public interest, for reason that the folios “contain information relating to an internal working document and business affairs.” The Tribunal identified those documents as a "Disclosure Checklist Form" and an "Application and Identification Test Details Sheet".

18. The Tribunal expressly dealt with the certificate, finding that it was not valid because it did not specify a reason as to why the documents were subject to the certificate. The Tribunal further noted that the documents covered by the certificate did not contain any information which was in any way relevant to any issue before the Tribunal.[13]

    [13] CB 176 at [35]

19. As a consequence of its finding that the certificate was invalid, the Tribunal did not act upon that certificate and the folios covered by the purported certificate were treated no differently than the rest of the material before the Tribunal. Provided that the Tribunal made its decision without having acted on the invalid certificate, the Tribunal will not have made a jurisdictional error as described in MZAFZ v Minister for Immigration [2016] FCA 1081 at [37] (MZAFZ) only because an invalid certificate was given under s.438.[14]

    [14] BIE15 v Minister for Immigration (2016) 314 FLR 392; [2016] FCCA 2978 at [51]

20. In recent decisions, the courts have drawn a distinction between a valid and an invalid certificate and documents purportedly covered by the certificate which would, or which would not, have any impact on the Tribunal’s review.  The present case is unusual, in that the Tribunal was alive to the issue of the certificate and dealt expressly with it in the following terms:

    The Tribunal also notes that, on Departmental file CLF2016/15490 the Department has attached a certificate under section 438(1)(a) of the Act to folio 72 and 108 of that file. Those documents comprise a “Disclosure Checklist Form” and an “Application and Identification Test Details Sheet”. No reason is identified by the Department as to why the documents are subject to the certificate. On the face of the information before it the Tribunal dos not consider the certificate to be validly issued in respect of either document as it is not apparent that the disclosure of any matter contained in the documents, or the disclosure of the information, would be contrary to the public interest for any reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceedings that the matter contained in the documents, or the information, should be disclosed as required by section 438(1)(a). Nor is it apparent that the document, the matter contained in the documents, or the information was given to the Minister or to an officer of the Department, in confidence as required by section 438(1)(b). Having reviewed the documents in question the Tribunal also finds that they do not contain any information which is in any way relevant to any issue before the Tribunal.

    (error in original)

21. I perused the exhibit to Ms Garaty’s affidavit and I conclude that the Tribunal was correct, first to find that the certificate before it was not validly issued and secondly, that the documents purportedly covered by the certificate were not relevant to the review. 

22. In my view, the Tribunal did precisely what it needed to do in the circumstances and no arguable issue of jurisdictional error arises from the Tribunal’s treatment of the certificate or the documents to which it related.

23. It cannot be said that the applicants were denied any opportunity to advance their case.[15]  Hypothetically the height of what the applicants could have achieved was to submit that the certificate was invalid, which would have led the Tribunal to proceed precisely as it did. Accordingly, this matter is clearly distinguishable from MZAFZ, as well as Minister for Immigration v Singh [2016] FCAFC 183.

    [15] AVO15 v Minister for Immigration [2017] FCA 566 at [91]

24. There can have been no breach of procedural fairness arising from the Tribunal’s failure to disclose to the applicants the certificate or the documents to which it relates as disclosure of the certificate or of folios 72 and 108 could not have impacted upon the outcome of the review.[16]

    [16] BEG15 v Minister for Immigration [2016] FCCA 2778 at [67]–[68]

Conclusion

1. I conclude that the applicants are unable to establish an arguable case of jurisdictional error by the Tribunal and accordingly, I order that the application be dismissed pursuant to rule 44.12(1)(A) of the Federal Circuit Court Rules.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale. The first applicant indicated his intention to seek leave to appeal, but did not otherwise make submissions on costs.

3. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  27 June 2017