DNK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCCA 3406
•21 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DNK19 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR | [2019] FCCA 3406 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – whether applicant raised an arguable case for the relief claimed – no arguable case for the relief claimed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424AA, 499 |
| Cases cited: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 |
| Applicant: | DNK19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2402 of 2019 |
| Judgment of: | Judge Emmett |
| Hearing date: | 21 November 2019 |
| Date of Last Submission: | 21 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 21 November 2019 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Solicitor for the Respondents: | Mr Max Gao (Australian Government Solicitor) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2402 of 2019
| DNK19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By application filed on 16 September 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 3 September 2019 (“the Tribunal”).
The applicant confirmed that he attended a directions hearing before a registrar of this Court on 10 October 2019, on which occasion he was given leave to file and serve an amended application, any further evidence and submissions in support of his application. The applicant was also provided at that time with the contact details of legal services providers and translating and interpreting services in documents headed in the applicant’s own language.
At the request of the first respondent, the matter was set down for a hearing pursuant to r.44.12 of the Federal Circuit Rules 2001 (Cth) (“the Rules”) on the basis that the application did not disclose an arguable case for the relief claimed. On 6 November 2019, the applicant was given a further opportunity to file and serve submissions in support of his application.
The applicant confirmed that no documents had been filed by him, or on his behalf, either in accordance with those directions, or otherwise. The applicant confirmed that he has no further documents to provide to the Court this morning in support of his application, and the applicant confirmed that he continued to rely on the grounds of his initiating application, filed on 16 September 2019.
Before having those grounds interpreted to the applicant, I explained to the applicant that the role of this Court was very different to that of the Tribunal, and that it is not for this Court to reconsider the applicant’s claims and make different factual findings or reach different conclusions. I explained that the only issue before this Court is whether or not the decision of the Tribunal is affected by jurisdictional error. I explained that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake that goes to its jurisdiction. I also explained that disagreement with the findings and conclusions of the Tribunal rarely by itself establishes such a mistake.
The following grounds were then interpreted for the applicant, and he was invited to say whatever he wished in support:
“1. It is also of my opinion that Administrative Appeals tribunal (AAT) have made a mistake in refusing my protection visa applications.
2. It is also of my opinion, the Administrative Appeals Tribunal have error in refusing my appeals about the refuse of my protection visa application.
3. Lastly, I appeal to Federal Circuit Court of Australia to consider my application for this case to the Federal Circuit Court”
(Errors in original)
The applicant declined to make any submission, either in support of the grounds or in support of his application generally.
The relevant chronology, protection claims and Tribunal’s decision are accurately summarised in the first respondent’s written submissions, as follows:
“PART II CHRONOLOGY
3. The applicant is a 28 year old national of Malaysia. He arrived in Australia on 5 May 2017 with an Electronic Travel Authority visa. On 25 July 2017, he applied for a protection visa: Relevant Documents (RD) 1-35. On 7 August 2017, the applicant was granted a bridging visa A in connection with his valid protection visa application.
4. A delegate of the Minister refused the protection visa application on 3 October 2017: RD 46-58.
5. The applicant lodged an application for review by the AAT on 25 October 2017: RD 59-60. The applicant appeared before the AAT at a hearing on 15 July 2019 with the assistance of a Malay interpreter to give evidence and present arguments. On 3 September 2019, the AAT affirmed the decision under review: RD 76-98.
6. On 16 September 2019, the applicant lodged the application before this Court.
PART III PROTECTION CLAIMS
7. The applicant made written claims in the protection visa application form, which in summary were that (RD 29-31):
7.1. He sought protection from money lenders in Malaysia. He had borrowed money for his wedding (being self-employed he could not borrow from banks). His girlfriend cancelled the wedding. Due to stress his business shut down and he was unable to pay back the loan.
7.2. He thinks the money lender will ‘harm his life’ and take over his property. He was also stressed about shame and pressure by people around him.
7.3. The Malaysian authorities cannot protect him because money lending is illegal.
7.4. He cannot relocate because of where his family and his business are. Also, Malaysia is well connected by roadways.
8. The delegate did not consider the applicant feared persecution for a reason in s 5J(1)(a) of the Act. The applicant also did not qualify for complementary protection. On the basis of country information, the delegate found that Malaysia would be willing and able to provide the applicant protection.
PART IV AAT DECISION
9. Before the AAT, the applicant maintained his claim of fear of harm from money lenders, and also appeared to raise new claims. The AAT treated the applicant’s claims as being:
9.1. That he would be discriminated against because he was a handicapped person (being that following a stroke in the groin area, he had had a testicle removed) (Claim 1)
9.2. That it would generally be difficult to find work in Malaysia (Claim 2), and
9.3. That he was at risk from loan sharks (Claim 3).
10. In summary, the AAT rejected the applicant's claims on the basis of adverse credibility findings and country information. The AAT's decision and reasons for it are set out below in Part VI of these submissions.
PART V APPLICATION FOR JUDICIAL REVIEW
11. The application pleads 3 grounds. These are that the applicant believes the AAT made a mistake or error in refusing his protection visa application (Grounds 1 and 2), and he appeals to the Court to consider his application (Ground 3).
12. Orders made at the first court date on 10 October 2019 permitted the applicant to file and serve an amended application giving complete particulars of each ground of review relied upon by 23 October 2019. He was also permitted to file and serve additional evidence relied upon by 30 October 2019.
13. In anticipation of the show cause hearing listed on 21 November 2019, orders made in chambers on 6 November 2019 directed that the applicant file and serve written submissions by 11 November 2019.
14. As at the date of filing these submissions, the Minister has received no amended application, further evidence or written submissions from the applicant. Nor have any such documents have been filed with the Court.”
In relation to the applicant’s grounds, plainly they did not identify any error capable of review by this Court. The applicant, as stated above, gave no further particularisation.
In the circumstances, on the basis of those grounds alone, the first respondent is entitled to the orders it seeks.
However, the Court in satisfying itself that the Tribunal’s decision is not affected by jurisdictional error, I do have regard to the Tribunal’s statement of decision and reasons.
I note that the applicant was invited to a hearing on 15 July 2019 by letter dated 14 June 2019. That letter informed the applicant that the Tribunal had considered the material before it, and was unable to make a favourable decision on that information alone. The letter then invited the applicant to a hearing on 15 July 2019, in accordance with the relevant statutory regime. The applicant attended that hearing.
The Tribunal commenced its statement of decision and reasons by accurately summarising the relevant criteria for a protection visa, and noted the mandatory considerations in Ministerial Direction No.56, under s.499 of the Act. The Tribunal also noted that it had taken account Refugee Law Guidelines and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (“DFAT”).
The Tribunal then summarised the applicant’s application, and then summarised various exchanges that it had with the applicant at the hearing about his claims. The Tribunal put to the applicant concerns that it had about his evidence, and noted the applicant’s responses in detail. Ultimately, the Tribunal found that the applicant changed his account of why he left Malaysia, initially stating in his application that it was his stress and shame due to the cancellation of his wedding by his fiancée, whereas at hearing he stated that he had called off the wedding because he was not qualified to find a job due to having a disability.
The Tribunal noted that even disregarding the inconsistencies between the claims expressed in his application and those provided at hearing, the Tribunal was not persuaded by the applicant’s claims at the hearing. The Tribunal found the applicant’s claims were inconsistent, confusing and lacking in credibility generally. The Tribunal found they also kept shifting and had concerns that the applicant was making up his account as he went along. The Tribunal then gave various examples to support those conclusions.
The Tribunal also noted that it was unable to find country information that would support the applicant’s claims that he was confined to working in his family business as a consequence of having his testicle removed. Ultimately, the Tribunal found that the applicant had fabricated his claim about being disabled for the sole purpose of enhancing his protection claims, and the Tribunal rejected the applicant’s claimed disabilities, including that he had a testicle removed.
In any event, the Tribunal noted that information before it satisfied it that there were several national organisations in Malaysia for people with disabilities. The Tribunal noted it was unable to find any country information to support the applicant’s contention that the government, in particular, discriminates against disabled people in employment.
The Tribunal identified with particularity the DFAT information to which it had regard.
The Tribunal accepted the applicant’s evidence that finding a job in Malaysia may be difficult, but noted that the applicant is youthful, motivated and able to locate work in Australia. The Tribunal found that conduct to indicate that the applicant has a good work ethic and that he would be able to find employment anywhere in Malaysia. The Tribunal found this particularly so as the applicant has now gained skills in the agricultural sector.
Ultimately, the Tribunal found that the applicant did not meet the Convention criteria or the complementary criterion by reason of the applicant’s claimed disability and general inability to find work outside his family business.
The Tribunal considered in detail the applicant’s claims relating to loan sharks, and ultimately rejected those claims in their entirety. The Tribunal found the applicant was unable to provide sufficient detail to persuade the Tribunal that the applicant was ever involved with loan sharks. The Tribunal found the applicant to provide confusing evidence in relation to the applicant’s alleged interaction with loan sharks.
Ultimately, based on the Tribunal’s adverse cumulative credibility findings, it did not accept that the applicant has any genuine or well-founded fears of persecution. In the circumstances, the Tribunal found that the applicant was not a person in respect of whom Australia had protection obligations under s.36(2)(a) of the Act, and for the same reasons, did not meet the complementary protection criterion under s.36(2)(aa) of the Act.
The Tribunal considered all of the applicant’s claims, and made findings in respect of those claims that would appear to have been open to it, on the evidence and material before it. The Tribunal’s findings were based on rational grounds, and arrived at after consideration of matters that were logically probative of the issues before it, and which were made in a procedurally fair manner (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). It is well established that credibility findings are matters for the primary decision-maker, provided they are open on the material, based on rational grounds and arrived at after consideration of matters that were logically probative of the issue, and made in a procedurally fair manner (see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[38] per McKerracher, Griffiths and Rangiah JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ).
The Tribunal’s adverse credibility findings were squarely based on the applicant’s written and oral evidence and the Tribunal’s assessment of that material. The inconsistencies and implausibilities which the Tribunal found to exist did not relate to objectively minor matters, but went to the core of the applicant’s claims and his credibility. The Tribunal gave reasons for its findings that were detailed, comprehensive and referred to the information and evidence given by the applicant.
The Tribunal identified with particularity the country information to which it had regard. It is well established that the country information to which the Tribunal does have regard and the weight it gives that material is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
The Tribunal’s conduct of its review was procedurally fair. As stated above, the applicant was invited to hearing in accordance with the legislative regime. Further, at the hearing, in accordance with s.424AA of the Act, the Tribunal noted that it gave to the applicant adverse information by way of his claim in his protection visa application that he had been working in Malaysia in catering and as a small event planner. The Tribunal explained that the information was relevant to the review because it would appear that the applicant had provided contradictory information to the Tribunal, noting that the applicant had said at hearing that he was an electrician. The Tribunal noted that the applicant did not wish to have the hearing adjourned to address the information provided to by the Tribunal, but provided a response then and there. However, that explanation was not sufficient to satisfy the Tribunal about the veracity of his claims.
Whilst I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error, and none is apparent on the face of the decision record.
As stated above, the Tribunal referred to the relevant law in affirming the decision under review, and in the circumstances, I am not satisfied that the grounds of the application have raised an arguable case for the relief claimed.
Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules, and on the basis that the application does not raise an arguable case for the relief claimed, the proceeding before this Court commenced by way of application, filed on 16 September 2019, should be dismissed, pursuant to r.44.12(1)(a) of the Rules, with costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Deputy Associate:
Date: 25 November 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Standing
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Jurisdiction
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