DKX16 v Minister for Immigration & Anor (No.2)

[2018] FCCA 2911

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKX16 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2018] FCCA 2911

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Reinstatement application pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) – whether the applicant’s explanation for his failure to attend the hearing was satisfactory – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 16.05

Cases cited:

DKX16 v Ministerfor Immigration & Anor (2018) FCCA 1910

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Applicant: DKX16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3151 of 2016

Judgment of: Judge Emmett

Hearing date: 15 October 2018

Date of Last Submission: 15 October 2018

Delivered at: Sydney

Delivered on: 15 October 2018

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Solicitors for the Respondents: Mr Justin McGovern
(Clayton Utz)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3151 of 2016

DKX16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By Application in a Case filed, on 3 August 2018, I understand that the applicant seeks reinstatement of his proceeding for judicial review, filed on 15 November 2016, pursuant to r.16.05 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

2. On 23 March 2017, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support of his application for judicial review of a decision of the Administrative Appeals Tribunal dated 27 October 2016. At that directions hearing the matter was set down for final hearing on 12 July 2018, before me. 

3. On 12 July 2018, there was no appearance by or on behalf of the applicant, and pursuant to r.13.03C(1)(c) of the Rules, the applicant’s proceeding for judicial review was dismissed (see DKX16 v Ministerfor Immigration & Anor (2018) FCCA 1910).

4. In support of his Application in a Case, the applicant filed an affidavit of himself, sworn 13 July 2018, as follows:

   “1. I lodged an application for a protection visa on the 10^th Dec 2014 and was refused on the 19^th Mar 2015.

   2. I appealed to the AAT for a review on the 15^th April 2015 and the tribunal affirmed the decision on the 27^th Oct 2016.”

5. The applicant was unrepresented before the Court this morning, although he had the assistance of an interpreter. 

6. I explained to the applicant that, in relation to his reinstatement application, the two issues of greatest significance for the Court were the explanation for his failure to attend the hearing on 12 July 2018 and the prospects of success of the judicial review proceeding.

7. The applicant provided no explanation, either in his Application in a Case or in his supporting affidavit, for his failure to attend. 

8. I asked the applicant why he had failed to attend the hearing, and the applicant answered that he was late and he had been feeling unwell.  The solicitor for the first respondent confirmed that the applicant, or a person on his behalf, rang the first respondent’s lawyer’s offices and said that the applicant was running late. I am told by the solicitor for the first respondent that the phone call was made in the afternoon, in circumstances where the matter had been set down for hearing before me at 10:15am. No communication was received by the Court from the applicant seeking an adjournment of the hearing or for any other reason.  The solicitor for the first respondent was content for the applicant not to give that information as sworn evidence, as he did not wish to ask any further questions of the applicant without that explanation. 

9. The first respondent submitted that the explanation was manifestly inadequate and that the applicant had ample opportunity and notice of the hearing date. 

10. I agree with the solicitor for the first respondent. It is plainly an unsatisfactory explanation for the applicant to say that he simply was running late. As stated above, no attempt was made by the applicant to contact the Court or to seek any further adjournment or time; nor was there any evidence before the Court to support the applicant’s assertion that he was unwell. It is the responsibility of the applicant to ensure that he attend any Court event at the time and place specified.

11. I note that the applicant’s background, claims for protection and the Tribunal’s findings and decision are accurately summarised in the written submissions of the first respondent’s as follows:

    “3. On 23 October 2011, the applicant, a citizen of Malaysia, entered Australia on an Electronic Travel Authority (subclass 976) visa. On 24 January 2012, he was granted a Student (subclass 572) visa.

    4. On 10 December 2014, the applicant applied for a Protection Visa. On 19 March 2015, the Delegate refused that application. On 14 April 2015, the applicant sought review from the Tribunal, which affirmed the Delegate's decision on 27 October 2016.

    5. On 15 November 2016, the applicant commenced the present proceedings.

    Applicant's Protection Claims

    6. The Applicant claims to face a real risk of serious and/or significant harm if returned to Malaysia. In particular, he claims that he will:

    (a) be mistreated because of his Chinese ethnicity, and an inability to find suitable employment to sustain his family; and/or

    (b) protest against the "unfair treatment of Chinese Malaysians", and fears he will be imprisoned by the Malaysian authorities as a result.

    7. These claims were elaborated upon in a statement dated 10 December 2014 that was provided to the Delegate (2014 Statement). The 2014 Statement describes how Chinese Malays are systematically discriminated against in favour of ethnic Malays.

    8. In particular, the 2014 Statement describes an incident that occurred in 10 October 2011 (October 2011 incident). At that time, the applicant owned a small tiling business in Malaysia, which was awarded a government contract. However, upon completion, the applicant was only paid half the contracted amount. After several months of demanding payment, the applicant was told by a government representative that "Chinese are all liars and pushed the price up deliberately, so it is not too bad to pay you half."

    9. As a result, the applicant contacted other people who had had "similar experiences" and gather in front of City Hall. The applicant claimed that the protesters wore clothes and brought banners that demanded ''fair treatment" for people of Chinese ethnicity and that the applicant was arrested at the protest and taken to the police station. His family ''paid a large amount of money" to bail him out.

    10. According to the 2014 Statement, the applicant became "disillusioned" after his arrest, and came to Australia soon thereafter. He did not initially realise that he could apply for a protection visa, and only did so later after being informed by friends that this was possible. If returned to Malaysia, he will continue to protest the treatment of Chinese Malays, and would "definitely" be thrown in jail.

    11. At the hearing before the Tribunal, the applicant gave further evidence that:

    (a) his wife and children reside in Malaysia, except for his eldest daughter who is also in Australia. The applicant is in regular contact with his family, and is not aware of them having any problems. Indeed, in October 2015 the applicant's wife argued with the applicant, demanding he return to Malaysia;

    (b) he originally came to Australia because he wanted to see if Australia "offers a suitable lifestyle". At the time, he had heard that "you can apply to be a refugee". The applicant did not apply for a Protection Visa initially as he first wanted to give Australia a "trial"·

    (c) he had no fears about returning to Malaysia, perceived no threats against him, and did not think he would be harmed upon his return. He applied for a Protection Visa because "he loved Australia so much";

    (d) he had never been involved in any political activities in Malaysia. He had been involved in one protest around May 2011 over unpaid work. However, he was subsequently paid in full before he came to Australia in 2011. His 2014 Statement may have said otherwise because he "had the wrong memory and said the wrong thing";

    (e) the protest itself was only three or four people protesting at the office of a private developer. The applicant had no memory of any signs, t-shirts, or slogans being worn or brought by the protestors. The applicant admitted that those details might have been added by the person who wrote the 2014 Statement;

    (f) because of the protest, the police held him in the police station for one day. He was bailed out on the recognisance of a friend. Contrary to what the applicant had claimed in his written statement, no money was paid for his bail. The applicant acknowledged the 2014 Statement was incorrect, stating that maybe the person who wrote it "went too far"; and

    (g) he had no examples of any mistreatment suffered by him or his family due to their ethnicity.

    Tribunal's Findings and Decision

    12. The Tribunal affirmed the Delegate's decision, finding that the applicant was not a person in respect of whom Australia owed protection obligations. The Tribunal based its decision on adverse credibility findings, and by reference to independent country information.

    13. In light of the "significant discrepancies" in the applicant's evidence, the Tribunal was not satisfied that the applicant had ever participated in any protest in Malaysia over unpaid wages or for any other reason. The Tribunal was also not satisfied that the applicant was held in police custody for any period and, consequently, never needed to be bailed out. Similarly, the Tribunal did not accept that the applicant had any desire to engage in such protest activities in the future.

    14. The Tribunal accepted that, for a period of time, the applicant was owed money for a construction project. However, that had been paid to him before leaving Malaysia. The delay in payment did not constitute serious or significant harm.

    15. The Tribunal then considered independent country information (including the Department of Foreign Affairs and Trade Report (DFAT Report)) regarding the status of ethnic Chinese in Malaysian society. Based on that information, the Tribunal found that neither the applicant nor his family faced a real risk of harm in Malaysia due to their ethnicity.

    16. Turning to the question of the applicant's employment opportunities in Malaysia, the Tribunal considered the applicant's "extensive work history" in Malaysia, Singapore, Taiwan, and Australia. The Tribunal accepted that the applicant's employment prospects and income-earning potential in Malaysia was less than in Australia. However, the Tribunal found that the applicant would be able to find sufficient employment in Malaysia, and reduced income-earning potential in itself did not constitute serious harm.

    17. Ultimately, on the basis of the evidence before it (and having considered the applicant's claims individually and cumulatively), the Tribunal was not satisfied that there was a real chance that the applicant would face serious harm if he returned to Malaysia, nor that there was a real risk he would suffer significant harm in terms of the complementary protection criteria.

    18. Accordingly, the Tribunal did not accept that the applicant was a person to whom protection obligations were owed.”

12. The applicant confirmed that he had not filed any Amended Application, any further evidence or submissions in support of his judicial review proceeding. The applicant confirmed that he relied on the grounds of his initiating proceeding as follows:

    “1. The Tribunal had no proof in claiming that I was not involved in protests.

    2. The Tribunal does not realise nor understand the seriousness and level of impact racial issues have in Malaysia and therefore refused to accept the fact I was facing real troubles in Malaysia. The tribunal did not do any in depth research about the Country, so their claims were on based on assumptions.

    3. The tribunal denies the fact that employment for me in Malaysia would be extremely difficult if not impossible, due to racial issues, and there would be no way for me to maintain and support my family even if it was possible to find employment in the country.”

13. Each of those grounds was interpreted for the applicant and he was invited to say whatever he wished in support of those grounds.

14. The applicant had nothing to say in support of either Grounds 1 or 2. 

15. Ground 1 is a bare assertion that the Tribunal had no proof to claim that he was not involved in protests.

16. In relation to Ground 1, it is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

17. The Tribunal’s decision records that the Tribunal specifically asked the applicant if he was ever involved in any political activities in Malaysia, and that the applicant had responded “No”. 

18. The Tribunal noted that it asked the applicant if he was ever involved in any protest in Malaysia, to which the applicant responded that he had only been involved on one occasion, around May 2011. The Tribunal explored that claim with the applicant at a hearing and found various inconsistencies in the applicant’s evidence given to the Tribunal with his 2014 written statement. The Tribunal noted that the applicant said that he had never had a police record in Malaysia and had never had any difficulty entering or departing Malaysia. Based on the significant discrepancies that the Tribunal found between the applicant’s oral evidence and his 2014 written statement, the Tribunal was not satisfied that the applicant ever participated in any protest in Malaysia. 

19. Those findings by the Tribunal would appear to be open to it on the evidence and material before it, and for the reasons it gave. They were reached after exploring the relevant evidence with the applicant, and in the circumstances, were not without intelligible justification (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

20. Accordingly, Ground 1 would appear to have no prospect of success.

21. In Ground 2, the applicant asserts that the Tribunal did not realise or understand the seriousness of racial issues in Malaysia, and did not do any in-depth research about the country of Malaysia. 

22. The Tribunal’s decision record discloses that the Tribunal identified with specificity a Department of Foreign Affairs and Trade (“DFAT”) report, dated July 2016, being country information on Malaysia in respect of Chinese Malaysians in Malaysia. The Tribunal noted that it discussed the content of that information with the applicant at the hearing and asked him if he wished to comment on that information. The Tribunal noted the applicant’s responses, which the Tribunal discussed with the applicant.

23. Ultimately, the Tribunal was not satisfied that the applicant faced a real chance of serious or significant harm in Malaysia, in the reasonably foreseeable future, in connection with his Chinese ethnicity, based on the totality of the information before it, including the DFAT report.

24. Again, those findings would appear to be open to the Tribunal on the evidence and material before it and for the reasons it gave.

25. Accordingly, Ground 2 would appear to have no prospect of success.

26. In Ground 3, the applicant asserts that the Tribunal denied that employment for the applicant in Malaysia would be extremely difficult because of racial issues, and that the applicant could not maintain and support his family, even if it was possible for the applicant to find employment in Malaysia.

27. The Tribunal’s decision record discloses that the Tribunal explored with the applicant his concerns about returning to Malaysia, and noted that the applicant said that he was worried that he was now almost 50 and his ability to make a living and sustain his family in Malaysia. The applicant reiterated to this Court, that, at his age, it would be very difficult to find a new job. The Tribunal had regard to the applicant’s extensive work history in Malaysia, Singapore, Taiwan and Australia and noted that the applicant did not address why it would be difficult for him to find work in Malaysia, in the light of that work history. 

28. The Tribunal also explored with the applicant the circumstances of his wife’s health and noted the applicant’s evidence that the applicant’s wife is now fully recovered, and that the applicant identified no further relevance of his wife’s stroke in 2009 to his claims for protection in Australia. 

29. Ultimately, the Tribunal was not satisfied on the evidence before it, including the applicant’s own evidence regarding his extensive work experience in Malaysia, Singapore, Taiwan and Australia in the past, that the applicant would not be able to source employment in Malaysia from which he could sustain himself and his family.

30. Based on that finding, the Tribunal was not satisfied on the evidence before it that in the reasonably foreseeable future the applicant faced, in Malaysia, economic or employment difficulties amounting to or giving rise to a real chance of serious and significant harm as contemplated by the relevant law.  Again, those findings and conclusions would appear to be open to the Tribunal on the evidence and material before it and for the reasons it gave. They are not findings that lack an intelligible justification; neither are they irrational, illogical or legally unreasonable, as that term has come to be understood.

31. Accordingly, Ground 3 would appear to have no prospect of success.

32. In the circumstances, the Tribunal’s decision record does not appear to be affected by any jurisdictional error. None is apparent on the face of the reasons and none has been identified by the applicant.

33. Whilst the first respondent acknowledges that the first respondent would suffer no prejudice by the reinstatement of the application, in light of the unsatisfactory nature of the applicant’s explanation for his delay and the total lack of prospects of establishing jurisdictional error in the Tribunal’s decision, the applicant’s Application in a Case for reinstatement is refused.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 23 October 2018