Dov17 v Minister for Immigration
[2018] FCCA 2233
•14 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOV17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2233 |
| 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.425, 438 |
| Cases cited: ANB15 v Minister for Immigration [2016] FCCA 3244 Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 Attorney-General (NSW) v Quin (1990) 170 CLR 1 BHG16 v Minister for Immigration [2017] FCCA 2745 Minister for Immigration v Singh (2016) 244 FCR 305; [2016] FCAFC 183 Minister for Immigration v SZNCR [2011] FCA 369 Minister for Immigration v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 MZAFZ v Minister for Immigration (2016) 243 FCR 1; [2016] FCA 1081 Perera v Minister for Immigration (1999) 92 FCR 6; [1999] FCA 507 SZHEW v Minister for Immigration [2009] FCA 783 SZJBD v Minister for Immigration (2009) 179 FCR 109; [2009] FCAFC 106 SZOYU v Minister for Immigration [2012] FCA 936 SZRMQ v Minister for Immigration (2013) 219 FCR 212; [2013] FCAFC 142 SZQBN v Minister for Immigration [2014] FCA 686 SZSEI v Minister for Immigration [2014] FCA 465 WACO v Minister for Immigration (2003) 131 FCR 511; [2003] FCAFC 171 WALN v Minister for Immigration [2006] FCAFC 131 |
| Applicant: | DOV17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2515 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 14 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr J Pinder of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,667 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 2515 of 2017
| DOV17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from judgment)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 25 July 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 7 August 2018.
The applicant is a citizen of Malaysia, who arrived in Australia on 25 February 2015.
On 19 May 2015 the applicant applied for a protection visa.[1]
[1] Court Book (CB) 1–43
On 3 February 2016 the delegate refused to grant the applicant a protection visa.[2] Notably, the applicant was not invited to an interview before the delegate.
[2] CB 64–79; esp CB 69–79
On 15 February 2016 the applicant sought review of the delegate's decision before the Tribunal.[3]
[3] CB 81–87
On 1 December 2016 and 25 January 2017 the applicant appeared at two hearings before the Tribunal with his representative.[4]
[4] CB 191–194; CB 220–222
On 25 July 2017 the Tribunal made its decision, affirming the decision not to grant the applicant a protection visa.[5]
[5] CB 281 – 323; esp CB 287–323
Applicant’s claims
In his protection visa, the applicant claimed to fear harm from gangs in Malaysia as a wealthy businessman and as a non-Malay businessman. He claimed to fear harm because of a series of incidents where he had publicly refused to pay a ransom, was beaten and robbed. The applicant claimed that the Malaysian police would not protect him and had connections to the gangs.
At the first hearing the applicant raised a new claim that he would be targeted by the police due to his father's difficulties and interactions with the police.
At the second hearing the applicant claimed that his father faced difficulties with the police and was threatened with the kidnapping of the applicant and his siblings in 2010.
The applicant also raised another claim in post-hearing submissions that he would face arrest for providing information to a western agency damaging the name of Malaysia, and would face harm upon return to Malaysia as people would perceive him to be a person of wealth due to his stay in Australia.
Tribunal decision
The Tribunal outlined the applicant's four requests for postponement of the first hearing (being the hearing which took place on 1 December 2016).[6] The applicant's representative made the first request on 16 November 2016 on the basis that additional time was needed to prepare submissions and country information submissions and to obtain a copy of the Minister's department's file, which had been requested via the Freedom of Information provisions. The Tribunal provided a scanned copy of the Department's file and refused the request on 21 November 2016.
[6] CB 291–294 at [16]–[22]
The applicant made a second request for the hearing to be postponed on 22 November 2016 on the basis that he was not told that he could not provide new information, and that he had only learned that he could provide further information to the Tribunal when he met with Parish Patience Immigration Lawyers in the previous week. The Tribunal considered the request but declined it on 22 November 2016. The applicant made a third request to postpone the hearing on 25 November 2016 on the basis of mental health issues and because the Tribunal would not be in a position to assess his claims adequately. The Tribunal declined this request on 25 November 2016.
At the hearing, the applicant's representative made a fourth request to postpone the hearing on the basis that the Minister's Department did not interview the applicant and the representative wanted to know why. The representative also submitted that the applicant did not have a copy of his application, the applicant had mental health issues, the representative did not have sufficient time to prepare for the hearing and did not have access to all of the documents to represent the applicant properly. The Tribunal considered the request but decided to proceed with the hearing.
The Tribunal was mindful of the applicant's ability to participate at the first hearing and advised the applicant that it would provide him with an opportunity to request a further hearing if required.[7] The Tribunal was satisfied that the applicant did not suffer any prejudice by reason of not having his application form prior to the hearing or because it was not postponed as the applicant and his representative had sufficient time to prepare for a hearing, the applicant was able to participate in the hearing effectively and he was provided with a further hearing.[8]
[7] CB 293 at [19], third paragraph
[8] CB 293–294 at [20]–[21]
The Tribunal then turned to the issue of whether the Tribunal was required to check the authenticity of the three police reports and considered the case of ANB15 v Minister for Immigration.[9] The Tribunal determined that it was not a reasonable or appropriate inquiry given the claims made by the applicant.[10] Ultimately the Tribunal placed no weight on this information.[11]
[9] [2016] FCCA 3244
[10] CB 294 at [24]
[11] CB 310–311 at [97]–[99]
The Tribunal did not accept the applicant's claim to fear harm upon return to Malaysia from gangs and the police due to his refusal to pay ransom money and as he was a wealthy businessman because of the applicant's delay in departing Malaysia, inconsistent evidence about where he was residing before he departed Malaysia and his early return from Pakistan. The Tribunal then considered his inconsistent evidence regarding several incidents with the gangs and found that, considered cumulatively, the applicant was not a credible, truthful or reliable witness. The Tribunal formed the view that “the applicant has fabricated claims and concocted evidence to achieve an immigration outcome”.[12] In making these findings, the Tribunal considered the psychological evidence submitted by the applicant and the applicant's mental health but did not accept that they explained or excused the credibility concerns which led to the finding that the applicant is not a reliable witness as to the reasons he departed Malaysia.[13]
[12] CB 308 at [89]
[13] CB 309–310 at [91]–[95]
The Tribunal rejected all of the applicant's claims in their entirety and did not accept that the applicant was at risk of persecution or significant harm in the future upon return to Malaysia.[14] The Tribunal did not accept that he departed Malaysia as a result of his father's issues with the police, because of the delay in raising the claim, the lack of reference to these claims in his protection visa application (which he claimed that his father organised), and the applicant's delay in departing Malaysia.[15] The Tribunal also found that the fact that the applicant's father returned to Malaysia and his siblings still reside there undermined the applicant's claim to fear harm on this basis.[16] The Tribunal rejected these claims.
[14] CB 311–312 at [103]–[106]
[15] CB 313–314 at [111]–[112]
[16] CB 314–315 at [115]–[116]
The Tribunal did not accept that the applicant was at risk of serious or significant harm upon return to Malaysia as a person of Pakistani ethnicity or as a Pakistani Malaysian or as a Sunni Muslim or as a member of a minority group in Malaysia.[17] The Tribunal did not accept that the applicant would face harm from criminal gangs upon return to Malaysia as he will be viewed as a person of wealth due to his stay in Australia and as a wealthy businessman returning from Australia due to a lack of independent evidence and the fact that thousands of Malaysians enter and leave the country every day.[18]
[17] CB 317 at [129]–[132]
[18] CB 317–318 at [134]–[138]
Finally, the Tribunal considered the applicant's claims raised in his post-hearing submissions that he would suffer harm because he provided information to a western agency damaging the name of Malaysia. The Tribunal presumed that he was referring to his protection visa application as there was no other evidence that he had provided information to any other western agency damaging the name of Malaysia. The Tribunal rejected this claim as the Department of Foreign Affairs and Trade (DFAT) country report stated that people returning to Malaysia are unlikely to face any adverse attention as the Malaysian government would not typically know that the individual was a failed asylum seeker, the delay in raising the claim and the lack of independent evidence to support this claim.[19]
[19] CB 319 at [142]–[144]
The present proceedings
These proceedings began with a show cause application filed on 10 August 2017. When I asked the applicant whether he continued to rely upon that application, he sought an adjournment. I understand the purpose of the adjournment would have been to obtain legal advice and to prepare an amended application. I refused that adjournment request for several reasons.
The first was that the proceedings were instituted more than 12 months ago. The applicant has had ample time to obtain what assistance he wished and, indeed, in his oral submissions, he recited numerous approaches to law firms and legal assistance authorities.
Secondly, as I told the applicant, if he were successful in establishing an arguable case, he would have an opportunity to seek legal assistance before a final hearing. On the other hand, in the absence of an arguable case, I saw no merit in delay.
The applicant relies upon the affidavit filed with his application which I received.
I also have before me as evidence the court book filed on 12 January 2018 and the affidavit of Thomas Galvin made on 19 April 2018. There was a confidential exhibit to the affidavit comprising documents purportedly covered by a purported certificate under s.438 of the Migration Act 1958 (Cth) (Migration Act).
Only the Minister filed written submissions in advance of today’s hearing. I invited oral submissions from the applicant today. He proved to be a skilful advocate and made extensive oral submissions in support of his case.
The first issue raised by the applicant was the proposition that the Tribunal had failed to properly consider complaints made by his father to the Malaysian Human Rights Commission. I accept that such a complaint is consistent with letters reproduced at CB 103-144. The Tribunal identified relevant documents at CB 290 and considered the issue at CB 312-313. I reject the proposition that there was no or no adequate consideration of that issue.
Secondly, the applicant asserts that the Tribunal erred in refusing an adjournment request. He asserts that he and his legal advisors were unprepared for the Tribunal hearing. In fact, four adjournment requests were made by or on behalf of the applicant and all were considered by the Tribunal. That consideration was extensive and is dealt with in the Tribunal’s reasons from [18]-[22]. I see no error in the Tribunal’s approach to that issue.
Further, the Tribunal granted the applicant a second hearing in the light of allegations that he was psychologically unprepared for the first hearing.
One of the adjournment requests was made because the applicant’s legal advisor had discovered that the delegate had declined to invite the applicant to an interview and he wanted to find out more about it. I called for submissions orally from the Minister’s solicitor on the question of whether the delegate had fallen into error by refusing an interview. Having traversed the relevant provisions of the Migration Act and considered the decision of this Court in BHG16 v Minister for Immigration,[20] I have concluded that the delegate was under no obligation to conduct an interview and the Tribunal dealt adequately with the request for an adjournment related to that issue.
[20] [2017] FCCA 2745
The applicant also submitted that the Tribunal failed to deal, or deal properly, with crucial evidence in the form of Malaysian police reports. The allegation has two parts. The first is the proposition that the applicant and his advisor should have been given more time to verify the reports themselves. The second is that the Tribunal should have verified the reports itself.
The Tribunal’s decision details the opportunity given to the applicant to provide verification of the police reports. The Tribunal also dealt specifically with the question of whether it should make its own inquiries. I see no arguable case of error in relation to the Tribunal’s approach.
Finally, the Applicant submitted that there were interpretation problems at the Tribunal hearing which rendered the hearing opportunity unfair. In the course of making submissions on that issue, the applicant also asserted that he was not permitted to ask questions of the Tribunal or, indeed, the interpreter. The applicant’s difficulty is that there is no evidence to support his assertions.
The Tribunal’s hearing record does not indicate any problem. The applicant was represented at the Tribunal hearing by lawyers who were very active on his behalf. There was time available after the hearing where any concerns could have been raised, but none were raised after the second hearing.
The applicant sought time to provide a transcript of the Tribunal hearing in support of his claims. He said this only occurred to him today when the Minister’s submissions were read to him. However, procedural orders made by a Registrar specifically provided the applicant with the opportunity to provide a transcript by 9 March this year, and nothing was filed.
In other respects, I agree with the Minister’s submissions on the ground of review advanced.
Ground 1
Ground 1 appears to contend that the Tribunal's findings at [83],[21] regarding the applicant's living arrangements before departing Malaysia, are incorrect. The Tribunal considered the applicant's claims and evidence and made findings that were open to it for the reasons that it gave. Consequently, this ground is not made out and seeks impermissible merits review.[22]
[21] CB 306
[22] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–36; [1990] HCA 21 at [16]–[17] per McHugh J; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 at [31] per Brennan J
Ground 2
Ground 2 contends that the applicant's statements were manipulated and quoted “out of context” by the interpreter (presumably at one or both of the hearings before the Tribunal). The applicant has not provided any specific details of how the evidence was manipulated; nor has he or provided any evidence to corroborate this claim.
If this allegation is that the standard of interpreting was inadequate, or that the interpreter somehow (whether purposely or unintentionally) misled the Tribunal as to the nature and content of his evidence, then this ground is not properly particularised.
There is longstanding authority for the proposition that not every instance of inadequate or incorrect interpretation deprives the applicant of a real and meaningful hearing under s.425 of the Migration Act, such as to give rise to jurisdictional error. Rather, for there to be a breach of s.425 of the Migration Act, the standard of interpretation must be so inadequate that the affected person was prevented from giving evidence to the Tribunal, or that translation errors were material to the Tribunal's conclusion and were adverse to the affected person.[23]
[23] see, eg., Perera v Minister for Immigration (1999) 92 FCR 6; [1999] FCA 507; WACO v Minister for Immigration (2003) 131 FCR 511; [2003] FCAFC 171; Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230; WALN v Minister for Immigration [2006] FCAFC 131; SZOYU v Minister for Immigration [2012] FCA 936. See also, and cf. SZHEW v Minister for Immigration [2009] FCA 783; In SZRMQ v Minister for Immigration (2013) 219 FCR 212; [2013] FCAFC 142; SZSEI v Minister for Immigration [2014] FCA 465
The onus is on an applicant to demonstrate that the departure related to a matter of significance to his or her claims and that there was a sufficient connection between the inadequate translation and the Tribunal's decision.[24]
[24] Perera at [38] and [45] per Kenny J; P119/2002 at [16]–[18] per Mansfield and Selway JJ; WACO at [69] per Lee, Hill and Carr JJ; see also SZJBD v Minister for Immigration (2009) 179 FCR 109; [2009] FCAFC 106 at [72]–[73] per Buchanan J
Before the applicant can allege that the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was prevented from giving evidence to the Tribunal, or that any errors made in interpretation at the Tribunal were material to the conclusion of the Tribunal and adverse to the applicant, the applicant must first establish by way of evidence that there were errors in the interpretation at the hearing.
Such evidence would ordinarily need to be in affidavit form from a qualified interpreter, who has conducted a detailed review of the sound recording of the Tribunal hearing, and who has set out what the applicant said at the hearing, what the interpreter said by way of interpretation at the hearing, and how that interpretation was incorrect.
The applicant has not filed or served any such evidence.
In the absence of such evidence this ground must fail.
Ground 3
Ground 3 contends that the applicant was treated unfairly by the Tribunal as the Tribunal did not postpone the hearing which the applicant claims caused him stress and resulted in his unstable mental health condition.
The applicant made a total of four requests for the 1 December 2016 hearing to be postponed. The Tribunal considered each request and provided reasons for refusing the request.[25] The Tribunal satisfied itself that the applicant did not suffer any prejudice by reason of the hearing not being postponed. The Tribunal found that the applicant and his representative had sufficient time to prepare for the hearing, that the applicant was able to participate effectively in the hearing, and that the applicant was ultimately provided with a further hearing in any event.[26]
[25] see CB 289 at [9]–[11]
[26] CB 293–294 at [20]–[21]
Furthermore, to the extent that the applicant may be seeking to argue that he was unfit to participate in the Tribunal's review, it is pertinent that the applicant was represented and the Tribunal considered the applicant's mental health when making its findings.[27]
[27] CB 309–310 at [91]–[97]
The only evidence from a mental health professional before the Tribunal was:
a)a referral letter from the applicant's doctor, Dr Alwand Sherif, to Sonia Bulzomi (psychologist) dated 24 November 2016; and
b)a report from Sonia Bulzomi (psychologist) dated 11 January 2017.
Neither document, in its terms, states that the applicant was unfit for hearing due to a mental health condition, nor does anything in either document give rise to the necessary inference that the applicant was unfit for hearing due to a mental health condition.
On the current evidence, the applicant cannot be found to have been unfit to participate meaningfully in the hearing to the standard that would result in a jurisdictional error.[28] Jurisdictional error does not arise simply because an applicant fails to present his or her case in the best possible light.[29]
[28] cf. Minister for Immigration v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41, Minister for Immigration v SZNCR [2011] FCA 369 and SZQBN v Minister for Immigration [2014] FCA 686
[29] see SZNVW
This ground would therefore fail.
Ground 4
Ground 4 contends that the applicant could not understand the interpreter. The applicant raised this claim with the Tribunal after the first hearing, which was considered by the Tribunal in the context of his inconsistencies and omissions at [96]–[97].[30] The Tribunal noted that the applicant advised that he understood the interpreter at the first hearing, the applicant did not raise any concerns during the first hearing and only raised the issue when the Tribunal put its concerns to the applicant at the second hearing.
[30] CB 310
For the reasons set out in respect of Ground 2, in the absence of proper evidence regarding the standard of interpretation, this ground would fail.
Ground 5
Ground 5 contends that the Tribunal did not thoroughly consider the applicant's case. The applicant does not particularise this ground any further. This ground is not made out and seeks impermissible merits review.
Other issues
Whether the Tribunal was required to verify authenticity of documents
As noted above, the Tribunal considered whether it was required to verify the authenticity of the three police reports submitted by the applicant in light of the decision in ANB15 v Minister for Immigration.
In ANB15, the applicant claimed to fear harm because of his employment by a political party and supplied a letter which stated that he worked for a particular member of parliament. The Court held at [11]:
in a matter where the Tribunals findings are based substantially, if not totally, on credit, material corroborative of credit is critical and the enquiry not onerous. I accept, therefore, that this is one of those limited factual platforms where the Tribunal had information available to it that it could or should have verified or dismissed by making reasonable enquiry of the author and it follows that it was not reasonable to proceed to make its findings absent such enquiry.
This matter is factually different from ANB15 and that there was no error in the approach taken by the Tribunal in declining to verify the documents. The Tribunal provided adequate reasons why it did not consider it reasonable to contact the Malaysian police and verify the reports, being: that the applicant claimed to fear harm from the police, that the applicant claimed that he would face arrest upon return to Malaysia for providing information to western agencies damaging the name of Malaysia; and the prevalence of police corruption in Malaysia.
The Minister’s submissions also deal with the purported s.438 certificate. I agree with those submissions.
On 9 February 2018 a delegate of the Minister issued a certificate pursuant to s.438(1)(a) of the Migration Act (the Certificate) in respect of two folios of the Minister's Department's file in respect of the applicant's application for a protection visa (file CLF2015/30445).[31]
[31] CB 80
The documents that were the subject of the Certificate are:
a)folio 45: an “identification test: protection visa applicants”; and
b)folio 54: a “disclosure decision checklist”.
The Tribunal's decision record states that the Tribunal informed the applicant that it considered the documents to be irrelevant and that the Tribunal would not take those documents into account and in any event, the certificate was invalid. The reasons also state that the applicant and his representative were invited to make submissions on the issue at the hearing on 1 December 2016 but did not.[32]
[32] CB 291 at [17]
In my view, the Tribunal complied with its procedural fairness obligations with respect to the Certificate.[33]
[33] cf. MZAFZ v Minister for Immigration (2016) 243 FCR 1; [2016] FCA 1081; Minister for Immigration v Singh (2016) 244 FCR 305; [2016] FCAFC 183
Further, and in any event, the documents are routine administrative forms that could not possibly have had any effect on the outcome of the review.
There is no arguable case of error in the Tribunal’s approach to the Certificate. The certificate was plainly invalid, as was found by the Tribunal. The two documents purportedly covered by the Certificate were irrelevant to the Tribunal’s review, and no obligation of disclosure arose.
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant did not wish to be heard on costs.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,667 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 22 August 2018
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