DLV18 v Minister for Home Affairs

[2019] FCCA 1012

FEDERAL CIRCUIT COURT OF AUSTRALIA

DLV18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1012

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5J, 424AA, 425

Cases cited:

Minister for Immigration v Jia Legeng (2001) 205 CLR 507

Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

SZBYR v Minister for Immigration (2007) 96 ALD 1

Applicant: DLV18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1859 of 2018

Judgment of: Judge Driver

Hearing date: 15 April 2019

Delivered at: Sydney

Delivered on: 15 April 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr J Tsaousidis of DLA Piper

INTERLOCUTORY ORDERS

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

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1859 of 2018

DLV18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  That decision was made on 1 June 2018.  The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 8 April 2019.

3. The applicant is a male citizen of Indonesia.[1]  The applicant arrived in Australia on 15 December 2011 on a student (subclass 572) visa which was valid until 17 March 2014.[2]

   [1] Court Book (CB) 12, 36.

   [2] CB 65.

4. On 24 June 2015, the applicant made an application for a permanent protection visa (subclass 866).[3]  The applicant claimed to fear harm from the Indonesian police because of his participation in demonstrations against corruption in Indonesia.[4]

   [3] CB 40.

   [4] CB 30-32.

5. The applicant did not attend an interview with the delegate scheduled for 24 November 2015 and did not provide reasons for non-attendance.[5]  The applicant was notified of the interview by registered post on 9 November 2015.[6]

   [5] CB 68.

   [6] CB 68.

6. On 3 December 2015, the delegate refused to grant the applicant a protection visa.[7]

   [7] CB 65-72.

7. On 4 January 2016, the applicant applied to the Tribunal for a review of the delegate's decision.[8]  The applicant did not provide a copy of the delegate's decision record with his application for review to the Tribunal.

   [8] CB 73-81.

8. On 1 June 2018, the applicant appeared before the Tribunal to give evidence and present arguments in relation to the review.  The hearing was conducted with the assistance of an interpreter in the Indonesian language.[9]

   [9] CB 90.

9. In summary, the applicant provided the following account to the Tribunal in support of his claims for protection:

   a)in May 2009, he took part in a demonstration outside a local government office to protest corruption by a local government leader.  Police arrested the applicant and another person and detained him for three days.  On release, the police told the applicant that he had to report to them once a week to confirm that he had not been participating in any other demonstrations.  The applicant complied with this condition but it made him feel “not calm”.  The reporting requirement finished after one year;[10]

   b)in August 2011, the applicant took part in another demonstration against corruption by the local government leader.  The applicant was arrested and detained for three days.  The police again imposed the reporting requirement on the applicant as before.  However, after his release, the applicant went into hiding, living in different places.  This was because he no longer felt safe and decided that he had to leave Indonesia;[11]

   c)the applicant made contact with an agent who told him about applying for a student visa to come to Australia.  The agent assisted the applicant to obtain a student visa and the applicant departed Indonesia on 15 December 2011;[12] and

   d)in February 2012, Indonesian police went to the applicant’s family home and asked his wife where the applicant was.  This made the applicant afraid because he thought if he had been there the police would have arrested him.[13]

   [10] CB 103 at [9].

   [11] CB 103 at [9]-[10].

   [12] CB 103 at [10].

   [13] CB 103 at [10].

10. On 1 June 2018, the Tribunal affirmed the decision under review.[14]

    [14] CB 101-106.

The decision of the Tribunal

1. At [11], the Tribunal noted that the applicant had omitted from his protection visa application the very important claims that after each arrest, he was required to report to the police once a week; this made him afraid; after his arrest in August 2011, he went into hiding and failed to report to the police; and after he left Indonesia, the police went to his home to find him.

2. The Tribunal rejected the applicant's explanations for the omissions.  While accepting that the application form might not contain great details of the applicant’s claims, the Tribunal found that if the applicant was relating a truthful account, he would have mentioned even in the briefest form the important matters he advanced to the Tribunal which amounted to evidence of risk for him in Indonesia.[15]

   [15] At [12].

3. The Tribunal had regard to the applicant’s previous student visa application documents which were included in the Minister’s Department’s file, and noted information which contained the following inconsistencies with the applicant's evidence to the Tribunal:[16]

   a)the Tribunal noted in particular an employment reference dated 9 July 2011 which stated that the applicant was employed as “sales marketing” for a company in Bali since 2001 and certificates issued in July 2011 relating to the applicant’s enrolment in different courses in Australia.  These documents conveyed the impression to the Tribunal that the applicant had decided to leave Indonesia by July 2011 at the latest, which the Tribunal found to be inconsistent with the applicant’s evidence that his decision to leave Indonesia was not made until after he was released from detention in August 2011 and that while in hiding he learned about the option of applying for a student visa to come to Australia; and

   b)the employment reference was also inconsistent with the applicant's evidence that he was working as a driver from May 2009 to his arrest in August 2011.

   [16] At [13].

4. The Tribunal, pursuant to s.424AA of the Migration Act 1958 (Cth) (Migration Act), sought the applicant’s comment on the information which it considered to be discrepancies. The applicant elected to comment at the hearing and did not seek extra time. He stated:[17]

   a)he fabricated the employment reference to assist him in obtaining the student visa; and

   b)after his arrest in 2009, he had been looking for information about how to go overseas.  It was only after 2011 that he confirmed arrangements to come to Australia.

   [17] At [14].

5. The Tribunal rejected the applicant’s responses on the basis that they were not a satisfactory explanation to the inconsistencies between the applicant's evidence to the Tribunal and the documents on the Minister’s Department’s file.[18]

   [18] At [14].

6. The applicant stated to the Tribunal that he left Indonesia in December 2011 for his safety, and in February 2012, the applicant learnt that the police had looked for him at his house which confirmed his fear.  Noting that the applicant had not applied for protection until almost four years later in May 2015, the Tribunal put to the applicant that such a delay suggested he was not genuinely in fear of harm in Indonesia.[19]

   [19] At [15].

7. The Tribunal found that the applicant did not provide a satisfactory explanation to explain the significant delay in applying for protection, and the delay was inconsistent with the behaviour of an applicant in genuine fear of harm in their home country.[20]

   [20] At [17].

8. Considered cumulatively, the Tribunal found that the applicant was not a witness of truth and his account of events on which his protection claims were based was false:

   a)the Tribunal did not accept the applicant’s claims of participations in demonstrations, arrest, detention, reporting to police, going into hiding and police coming to look for him at his home;[21]

   b)the Tribunal further disbelieved the applicant’s claim at the hearing that he would always oppose and protest against corruption, on the basis that there was no credible evidence as to what the applicant’s views were on corruption of officials in Indonesia nor that he has ever protested against that;[22]

   c)with regard to the employment reference, the Tribunal acknowledged the possibility of genuine applicants for protection resorting to the use of false information to secure a means of leaving a country where they fear persecution.  However, given the Tribunal’s finding that the applicant was not genuinely in fear of harm and that he was not a witness of truth, the Tribunal found that there was no credible evidence as to how the employment reference came to be and its content;[23] and

   d)the Tribunal also found that there was no credible evidence that the applicant suffered harm in Indonesia, that anyone in Indonesia sought to harm him, why the applicant left Indonesia and why he did not want to return.[24]

   [21] At [18].

   [22] At [18].

   [23] At [19].

   [24] At [19].

9. For all of the reasons stated in the decision record, the Tribunal found that the applicant did not hold a well-founded fear of persecution within the meaning of s.5J(1), nor did he meet the complementary protection criterion.[25]

   [25] At [19].

The present proceedings

1. These proceedings began with a show cause application filed on 4 July 2018.  The applicant continues to rely upon that application.  There are three grounds in it:

   1.The Administrative Appeals Tribunal was or appeared to be biased.

   2.In making the decision, the Tribunal denied the applicant natural justice or procedural fairness.

   3.The Tribunal made its decision without allowing the applicant a reasonable opportunity to be heard in relation to adverse allegations made against him by the Tribunal.

2. The application is supported by a short affidavit filed with it, which repeats the allegation of bias.  I received the affidavit as a submission.  The only evidence I have before me is the court book filed on 22 August 2018.

3. I invited oral submissions from the applicant this morning.  He told me that a friend had assisted him to prepare his show cause application and supporting affidavit.  His friend has since returned to Indonesia. 

4. The applicant has no understanding of the grounds of review advanced in the application.  I specifically asked him about the allegation of bias, but he was unable to say anything about it.  It is apparent that the applicant is not able to articulate anything bearing upon the legal issues in this case.

5. On my own perusal of the available material, there is nothing to point to an arguable case of jurisdictional error. 

6. The grounds of review advanced by the applicant are addressed in the Minister’s submissions.  I agree with those submissions. 

Ground 1

1. Ground 1 alleges that the Tribunal was or appeared to be biased.  The ground is unparticularised and unsupported by evidence.

2. Bias is a serious allegation which needs to be firmly established, distinctly made and clearly proved.[26]  In respect of apprehended bias, the relevant question which must be asked is whether a fair-minded lay observer, who is properly informed as to the nature of proceedings, the matter in issue and the conduct of the proceedings, might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided.[27]

   [26] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and at [127] per Kirby J.

   [27] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.

3. There is nothing in the decision record that suggests that the Tribunal did not conduct its review with an open mind.  The Tribunal gave detailed and cogent reasons for its view that the applicant was not a witness of truth at [9] to [17] which formed a reasonable basis for the Tribunal’s adverse conclusion on the applicant’s credibility.  Accordingly, actual or apprehended bias cannot be established and this ground would fail.

Ground 2

1. Ground 2 is a broad, unparticularised allegation that the Tribunal denied the applicant natural justice or procedural fairness.  The Tribunal complied with its statutory procedural fairness obligations:

   a)on 23 April 2018, the applicant was invited to a hearing pursuant to s.425 of the Migration Act. The hearing invitation letter stated the date, time and place of the hearing and was posted to the applicant’s nominated address for correspondence provided in his review application form;[28]

   b)On 10 May 2018, the Tribunal received the applicant’s response to hearing invitation.[29]  Subsequently on 1 June 2018, the applicant attended a hearing before the Tribunal;[30]

   c)The Tribunal’s decision record indicates that the applicant had the opportunity to present his claims and give evidence to the Tribunal and respond to the Tribunal’s concerns regarding various aspects of his claims; and

   d)The Tribunal noted at [13]-[14] that it sought the applicant’s comment pursuant to s.424AA of the Migration Act, on matters arising in the applicant’s student file which were inconsistent with the applicant’s evidence at hearing.[31]  The information in question related to the applicant's employment reference dated 9 July 2011, and certificates issued in July 2011 (whilst still in Indonesia) related to the applicant’s enrolment in different courses in Australia. 

   [28] CB 76, 85.

   [29] CB 87.

   [30] CB 90.

   [31] SZBYR v Minister for Immigration (2007) 96 ALD 1 at [18].

Ground 3

1. Ground 3 alleges that the Tribunal did not allow the applicant a reasonable opportunity to be heard in relation to unparticularised adverse allegations made against him.

2. For the same reasons stated in relation to Ground 2, this ground is incapable of being made out.  The decision record demonstrates that each concern was put to the applicant for comment and the applicant gave his responses.  The applicant did not request an adjournment or more time to provide additional evidence.  Accordingly, the Tribunal did allow the applicant a reasonable opportunity to be heard and this ground would fail.

Conclusion

1. I conclude that the applicant is unable to advance an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant enquired whether he was required to pay costs immediately, and I explained to him the consequences of the making of an order for costs in a fixed amount.  The applicant did not oppose the making of an order for costs.

3. 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 $3,667.

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

Date:         16 April 2019