DNV16 v Minister for Home Affairs
[2018] FCA 1888
•27 November 2018
FEDERAL COURT OF AUSTRALIA
DNV16 v Minister for Home Affairs [2018] FCA 1888
Appeal from: DNV16 v Minister for Immigration [2018] FCCA 1199 File number(s): NSD 689 of 2018 Judge(s): WHEELAHAN J Date of judgment: 27 November 2018 Catchwords: MIGRATION – no appearance by appellant – no error in judgment of Federal Circuit Court – application dismissed. Legislation: Migration Act 1958 (Cth) s 424A(3)(a), 476
Federal Court Rules 2011 (Cth) r 36.75(1)(a)
Cases cited: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 Date of hearing: 27 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 30 Counsel for the Appellant: The appellant did not appear. Counsel for the Respondent: Ms Lucchese Solicitor for the Respondent: Sparke Helmore ORDERS
NSD 689 of 2018 BETWEEN: DNV16
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
WHEELAHAN J
DATE OF ORDER:
27 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WHEELAHAN J:
Introduction
The appellant filed a notice of appeal against the dismissal by the Federal Circuit Court of Australia of her application under s 476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal: DNV16 v Minister for Immigration [2018] FCCA 1199. The Tribunal had affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa.
This appeal was listed for hearing at 2:15pm this afternoon. The appellant was not present and there had been no communications from her. I delayed coming onto the bench for a short period. The appeal was called and the appellant remained absent. In those circumstances, the legal representative of the respondent Minister applied for an order that the appeal be dismissed under r 36.75(1) of the Federal Court Rules 2011 (Cth) on the ground that the appellant was absent when the appeal was called on for hearing.
I confirmed with the legal representative of the Minister that the appellant had been served with the appeal book, and a copy of the written submissions filed on behalf of the Minister. I received into evidence copy email correspondence from the Court to the appellant dated 11 October 2018 advising her of the listing of the appeal at 2.15pm today; copy correspondence from the Minister’s lawyers to the appellant of 19 October 2018 enclosing the appeal book; and copy correspondence to the appellant of 20 November 2018 enclosing the Minister’s written submissions. I confirmed that the postal address and the email address on those communications to the appellant corresponded with the postal and email address for service stated on the appellant’s notice of appeal. After adjourning the Court at about 2.30pm I had my chambers make enquiries of the registry to ascertain whether there had been any contact from the appellant, and was advised that there had been none.
I shall grant the application under r 36.75(1) and dismiss the appeal. I do so having regard to my reasons in relation to the substantive matter against the event that there was an application to set aside the order under r 36.75(2). What follows are my reasons, albeit given in the absence of submissions, either written or oral, on behalf of the appellant.
Background
The appellant is a citizen of Malaysia. She was granted a short stay visitor’s visa in May 2012, and entered Australia in June 2012. Her visa expired in September 2012, and she remained in Australia as an unlawful non-citizen. She lodged an initial application for a protection visa in June 2015, which was rejected as being invalid. She lodged a second application for a protection visa in August 2015 which was accepted as valid. In September 2015, the Minister refused the appellant’s application for a protection visa on the ground that the appellant did not satisfy the criteria in s 36(2) of the Migration Act.
In her application for a protection visa the appellant claimed that she left Malaysia in order to avoid the risk of being harmed or killed by an ex-boyfriend whom she got to know in 2005. The appellant claimed that she had become the girlfriend of this man in 2005 but later discovered that he had other girlfriends. She claimed that she wanted to separate from the man, but that he threatened to kill her and her parents if she separated from him. The appellant claimed that the man tortured her, and that in May 2010, he locked her in his house for 10 days, and although he was arrested when she reported it to the police, he was released after one day, when his wealthy father bribed the police. The appellant claimed that upon release, the ex-boyfriend continued to torture the appellant every day. The appellant claimed that her parents had told her that the man had come to her home, and told her parents that he would kill her if he found her. The appellant said that she did not move to another part of Malaysia to seek safety because she did not know who could help her, and that she did not think Malaysian authorities could or would protect her if she went back to Malaysia, and that she believed that the man could find her if she stayed in Malaysia. The appellant was also interviewed for the purposes of the visa application.
On 24 September 2015, a delegate of the Minister refused to grant the appellant a protection visa. The appellant applied to the Administrative Appeals Tribunal for review of that decision.
The review by the Administrative Appeals Tribunal
The Tribunal conducted a hearing on 17 November 2016, which the appellant attended. At the hearing the appellant said that when she commenced the relationship with her ex-boyfriend in 2010, he wanted her to carry drugs for him, and to provide sexual services to other people. The appellant claimed that the man threatened that if she did not provide those services, he would torture her and keep her locked up. The appellant claimed that on one occasion she refused to provide sexual services to other people, and that her ex-boyfriend locked her in a room for 10 days and assaulted her physically. The appellant claimed that after he let her go, she ran away because she did not want to provide sexual services to customers. She went to the police and reported the assault and what the man was doing. The police arrested the man and detained him for a day, but he was released after one day because his parents are rich and bribed the police. The appellant claimed that after the man was released he found her and he beat her again. The appellant claimed that she hid in friends’ houses in Kuala Lumpur and Malacca but that he found her because her friends told him where she was, and that he had probably offered them money to do so. The appellant also claimed that she had gone to Singapore to hide from the man, but that he had found her there.
In its reasons for decision the Tribunal stated that it put the inconsistencies in the appellant’s evidence to her. Those inconsistencies included the date when the claimed relationship commenced, which the appellant had stated was 2005 in her written application for a visa and in her interview, but to the Tribunal she stated that the relationship commenced in 2010, some five years later. The other principal inconsistency put to the appellant was that she had made no claims relating to her ex-boyfriend’s demands that she provide sexual services to other people either in her written application for the visa, or in the interview.
The Tribunal formed the view that the appellant was not a witness of truth and that she had fabricated or exaggerated her claims for the purposes of obtaining a permanent visa to remain in Australia. The Tribunal found that the appellant was evasive in response to even simple questions, such as where she was living for two years prior to her departure from Malaysia. The Tribunal stated that the appellant was unable to recall whether she had been in a relationship with her ex-boyfriend for seven or two years prior to her departure from Malaysia, or explain other inconsistencies in her evidence.
The Tribunal stated that it placed significant weight on the length of time between when the appellant’s tourist visa ceased in 2012 and when she lodged her protection visa application in August 2015. The Tribunal considered that if the appellant had a genuine fear of returning to Malaysia, she would have sought protection or explored her options in Australia sooner than she did. The Tribunal stated that it did not accept the appellant’s claim that no one advised her that she could apply for protection for a period of three years, particularly as her own evidence was that soon after she arrived in Australia she spoke with other Chinese-speaking people who did not have permanent visas. The Tribunal found that it was far more likely that the appellant did not seek protection sooner because she did not, and does not, actually fear suffering serious or significant harm in Malaysia, rather than because she was unaware of her options. The Tribunal considered that the delay in making the visa application reflected poorly on the credibility of the appellant’s claims to fear suffering persecution or serious or significant harm if she returned to Malaysia. The Tribunal found that when considered cumulatively, the inconsistencies undermined the appellant’s character, credit and credibility. The Tribunal stated that it expressed concerns about the appellant’s inconsistent and vague evidence during the hearing.
However, the Tribunal stated that it accepted that the appellant was assaulted by her ex-boyfriend in 2010, and accepted that it was possible that he was released by the police after only one day and that they took no further action against him. However, due to the appellant’s evasive, vague, and inconsistent evidence, the Tribunal did not accept that for the following two years, the appellant attempted to hide from her ex-boyfriend or that he always found her no matter where she was. The Tribunal did not accept that the appellant went to Malacca and hid there, and did not accept that her ex-boyfriend followed her to Singapore and found her there in less than two days. The Tribunal also rejected the appellant’s claim that her ex-boyfriend frequently called at her parents’ house or sent other people to monitor their home over the four and a half years since her departure from Malaysia.
The Tribunal was therefore not satisfied that there was a real chance or real risk that the appellant would face serious or significant harm if she returned to Malaysia. Accordingly, the Tribunal was not satisfied that the appellant met the criteria in s 36(2)(a) or s 36(2)(aa) of the Migration Act, and affirmed the decision under review.
The proceeding in the Federal Circuit Court
The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. In order to succeed, the appellant had to establish that the Tribunal’s decision was affected by jurisdictional error: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [17]-[31].
In her application to the Federal Circuit Court, the appellant advanced three grounds of review. The primary judge records at [8] of his reasons that the appellant was ordered to provide written submissions to support those grounds but failed to do so, and that at the hearing, she was invited to make oral submissions in support of her application, but declined that opportunity. The primary judge therefore considered the grounds as they were stated in the application. After considering each of the three grounds, the primary judge held that no jurisdictional error had been established, and dismissed the application.
The first ground of the application to the Federal Circuit Court
The first ground of the application to the Federal Circuit Court was (quoted without alteration) –
The Tribunal failed to consider the applicant’s claims that her ex-boyfriend may offered money to her friends to find out where she was. That is consistent to the applicant’s claims that her ex-boyfriend’s family is wealthy.
The primary judge held that the Tribunal specifically referred to that claim in the last sentence of [20] of its reasons, but that it did not make an express finding concerning that claim because the Tribunal rejected the higher claim, namely that the appellant was being pursued by the ex-boyfriend. I note that at [49] of the Tribunal’s reasons it stated that –
…due to the applicant’s evasive, vague and differing evidence over time about what happened after this event, the Tribunal does not accept that for the next two years the applicant attempted to hide from her ex-partner who would always find her no matter where she was.
In light of the Tribunal’s findings, and the Tribunal’s express reference to the claim at [20] of its reasons, the primary judge was not satisfied that the Tribunal had failed to consider the claim.
The second ground of the application to the Federal Circuit Court
The second ground of the application to the Federal Circuit Court was (quoted without alteration) –
The Tribunal failed to disclose the country information or supporting evidence that it would be unlikely her ex-boyfriend to “know that she had even returned to the country” by relocating herself to another city in “a population of over 30 million people and a number of large cities”. ... the Tribunal failed to consider the wealthy family of the applicant’s ex-boyfriend who can easily locate the applicant by paying money to the government officials.
The primary judge held at [12] that contrary to the assertion in the first part of the ground, the Tribunal’s reasons show that it did put information to the appellant concerning the effect of the population of Malaysia being over 30 million people and that it included a number of large cities. I note that paragraph [27] of the Tribunal’s reasons states –
The Tribunal put to the applicant that Malaysia has a population of over 30 million people and a number of large cities and that it would be reasonable for her to return to Malaysia and relocate to another city where she would not be found by her ex-boyfriend who would be unlikely to know she had even returned to the country.
The primary judge also held that, in any event, even if that information had not been put to the appellant, there would have been no error because the information concerning Malaysia was not specifically about the appellant: Migration Act, s 424A(3)(a).
The primary judge observed at [14] that the critical reasoning in the Tribunal’s decision was that the appellant was no longer being pursued by her ex-boyfriend. The primary judge held that given that finding, it was unnecessary, ultimately, for the Tribunal to come to any conclusion about the reasonableness of the ability of the appellant to relocate within Malaysia in order to avoid the harm that might come to the appellant from her ex-boyfriend. The primary judge held that this fact dealt also with the second aspect of ground 2, namely the alleged failure to consider the appellant’s ex-boyfriend’s wealthy family.
The third ground of the application Federal Circuit Court
The third ground of the application to the Federal Circuit Court was (quoted without alteration) –
The Tribunal failed to consider that the fear of being assaulted and held captive is foreseeable as long as the applicant and her ex-boyfriend in Malaysia on the basis of that the authorities will not provide protections to the applicant and the applicant ex-boyfriend’s family has ability to get the police help to take no action against him.
The primary judge held that this ground faced a similar difficulty as the other grounds, namely that the Tribunal did not accept that the appellant was of any ongoing interest to her ex-boyfriend. In light of that, the consequences of any possible interest did not have any further application to the issues to be determined by the Tribunal, and it was unnecessary for the Tribunal to determine the issues raised in this ground.
The appeal to this Court
The appellant’s notice of appeal to this Court advances two grounds (quoted without alteration) –
1.The primary judge erred in making an order that the Tribunal made no jurisdictional error.
2.The primary judge failed to consider the procedure fairness not fairly afforded in the applicant’s application process.
The appellant did not file any written submissions in this Court in support of the grounds of appeal, and as I stated at the outset, did not appear when the appeal was called to make oral submissions.
As to the first ground of appeal to this Court, I have noted at paragraph [12] above that the appellant did not present any written or oral submissions to the primary judge. However, the primary judge considered each of the appellant’s grounds of review in her application. I have reviewed the reasons of the Tribunal and the reasons of the primary judge, and I am not persuaded that the primary judge erred in finding that there was no jurisdictional error by the Tribunal.
As to the second ground of appeal to this Court, the appellant did not raise any distinct ground of denial of procedural fairness. To the extent that any such ground was implicit in the appellant’s other grounds of review in the Federal Circuit Court, the primary judge considered each of the appellant’s grounds and, as I state above, I am not persuaded that the primary judge erred in finding that there was no jurisdictional error by the Tribunal.
The order of the Court is that the appeal is dismissed.
The first respondent sought an order for costs, and I made an order that the appellant pay the first respondent’s costs to be assessed in default of agreement.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan. Associate:
Dated: 27 November 2018
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