DRV18 v Minister for Home Affairs

[2019] FCCA 1033

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRV18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1033

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)

Cases cited:

Minister for Immigration v Jia Legeng [2001] HCA 17

NAHI v Minister for Immigration [2004] FCAFC 10

Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407

SZNXA v Minister for Immigration [2010] FCA 775

Applicant: DRV18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1986 of 2018

Judgment of: Judge Driver

Hearing date: 16 April 2019

Delivered at: Sydney

Delivered on: 16 April 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Hammerton of Sparke Helmore

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 1986 of 2018

DRV18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 15 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, a citizen of Malaysia, arrived in Australia most recently on 9 December 2015 as a holder of an Electronic Travel Authority (Subclass 601) visa.[1]  On 4 May 2017, the applicant lodged an application for the protection visa.[2] The applicant’s claims were set out in a statement accompanying the visa application and can be summarised as follows:[3]

   a)he claimed to fear discrimination in Malaysia based on his religion (Christianity) and ethnicity (Chinese); and

   b)he claimed to have been involved in a violent anti-government protest (the Bersih 4 rally) and that he was detained and fired from his factory job.

   [1] Court Book (CB) 49

   [2] CB 1-41

   [3] CB 40-41

4. On 11 August 2017, the delegate refused to grant the visa.[4]

   [4] CB 49-69

5. On 1 September 2017, the applicant applied to the Tribunal for review of the delegate’s decision.[5]  On 28 September 2017, the Tribunal invited the applicant to attend a hearing.[6]  On 26 October 2017, the applicant failed to attend the hearing.[7]  On 26 October 2017, the applicant requested a postponement accompanied by a medical certificate.[8]  On 13 November 2017, the Tribunal accepted the request and rescheduled the hearing.[9] On 1 December 2017, the applicant appeared before the Tribunal.[10]

   [5] CB 70-71

   [6] CB 76-77

   [7] CB 78-80

   [8] CB 81-82

   [9] CB 84-85

   [10] CB 86-88

6. On 15 June 2018, the Tribunal affirmed the decision under review.[11]

   [11] CB 92-104

Tribunal’s decision

1. The Tribunal rejected the applicant’s claims and evidence in relation to his attendance at the Bersih 4 rally in their totality on the basis of emphatic adverse credibility findings.[12]  The Tribunal considered country information about the Bersih 4 rally and identified “important discrepancies” between that information and the applicant’s evidence. Most significantly, there was no independent evidence of any arrests or conflict with police.[13]  The Tribunal went on to identify “inconsistencies, omissions and implausibilities” in the applicant’s evidence about the Bersih 4 rally which, taken together, undermined the applicant’s credibility.[14]  The Tribunal found that the applicant had not been a truthful witness.[15]  Based on the applicant’s evidence that he was not politically active and did not plan to be politically active on return, the Tribunal did not accept the applicant would suffer harm from police or anyone else in relation to any political circumstances in Malaysia.[16] Based on the “slight” particulars specified by the applicant, the Tribunal could not be satisfied that he had any political opinion or would do anything to draw the attention of police.[17]

   [12] CB 94-95 at [13], 98-99 at [33]-[35]

   [13] CB 95-96 at [15], [22]-[23]

   [14] CB 97-98 at [25]-[32]

   [15] CB 98 at [33]

   [16] CB 98-99 at [35]

   [17] CB 99 at [37]

2. The Tribunal went on to consider the applicant’s miscellaneous claims to fear harm based on his Chinese ethnicity, his religion and a new claim raised at the hearing about his inability to find gainful employment. The Tribunal put country information to the applicant, which indicated that Chinese Malaysians may be subjected to low grade discrimination. However, based on the “unspecified nature” of the applicant’s claims of discrimination, the Tribunal found that he would not suffer anything more than the low grade discrimination indicated in the country information.[18]  The Tribunal also put country information to the applicant about Malaysia’s economy and employment indicators.[19]  The Tribunal was not satisfied that the applicant would be unable to find a job or would suffer any economic harm or unemployment for any reason personal to him.[20]  The Tribunal was also not satisfied that the applicant would suffer discrimination for reasons of his Christian religion, noting the claim was “completely lacking in any detail”.[21]

   [18] CB 100 at [41]

   [19] CB 101 at [43]

   [20] CB 101 at [45]

   [21] CB 101 at [47]

3. The Tribunal did not accept that the applicant had a genuine fear of persecution for any political reasons or because he was a Christian,[22] and found that there was no real chance he would be persecuted on return.[23] The Tribunal found that any harm that the applicant might face as a Chinese Malaysian and any limits on his earning potential would not constitute serious harm.[24]  The Tribunal made an alternative finding that any serious harm suffered by the applicant due to difficulty obtaining employment would not be for any reason personal to the applicant and therefore, would not be due to systematic and discriminatory conduct.[25] The Tribunal concluded that the applicant did not have a well-founded fear of persecution.[26]

   [22] CB 102 at [50]

   [23] CB 102 at [51]

   [24] CB 102 at [52]

   [25] CB 102-103 at [53]

   [26] CB 103 at [54]

4. The Tribunal adopted its anterior findings to conclude that the applicant did not have a real risk of significant harm in relation to the Bersih 4 rally, his employment or his religion.[27]  The Tribunal also found that any harm that the applicant might suffer because of his ethnicity or his earning potential would not meet the definition of significant harm.[28] The Tribunal made an alternative finding that if the applicant were to encounter economic difficulties because of the Malaysian economy, this would be faced by the population generally and would therefore, be taken not to be a real risk of significant harm.[29] The Tribunal concluded that the applicant did not have a real risk of significant harm on return to Malaysia.[30]

   [27] CB 103 at [55]

   [28] CB 103 at [57]

   [29] (CB 103 at [58]

   [30] CB 103 at [59]

The present proceedings

1. These proceedings began with a show cause application, filed on 17 July 2018.  The applicant continues to rely upon that application.  There are three grounds in it:

   1.     Tribunal asked me misleading question;

   2.     Tribunal ignored my claims with bias;

   3.     Tribunal refused my claims based on unsubstantiated evidence.

2. The only evidence I have before me is the court book filed on 11 September 2018. 

3. The applicant filed a short affidavit with his judicial review application, which I received as a submission.  I invited oral submissions from the applicant this morning.  He said he had nothing to say.  I drew to the applicant’s attention that, given the generality of his grounds of review and the material in the court book, in the absence of any further submissions from him, it was very likely that his application would be dismissed.  He once again declined to make any submissions.

4. In my view, the Tribunal met its statutory obligations of review under the Migration Act 1958 (Cth). There is nothing in the available material to suggest any jurisdictional error by the Tribunal.

5. The Minister’s submissions deal with the grounds of review in the application.  I agree with those submissions.

6. Ground 1 has not been particularised so as to make it meaningful.[31] In the absence of a transcript of the Tribunal proceedings, there is no evidence to suggest the Tribunal asked the applicant misleading questions, nor is there any indication in the decision record to suggest this occurred. This ground is unsubstantiated and raises no arguable case of jurisdictional error.

   [31] SZNXA v Minister for Immigration [2010] FCA 775

7. Ground 2 is an allegation of bias which is serious and should be firmly made and clearly proven. A fair reading of the decision does not disclose any prejudgment in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.”[32] Ground 2 raises no arguable case for jurisdictional error.

   [32] Minister for Immigration v Jia Legeng [2001] HCA 17 at [72]

8. The contention in Ground 3 that the Tribunal made its decision based on unsubstantiated evidence misunderstands the Tribunal’s findings and cannot be made out. The Tribunal rejected the applicant’s claims based on its assessment of the applicant’s credibility and in light of country information.[33]  Credibility findings and the choice and assessment of country information are generally matters for the Tribunal and this ground raises no arguable case for jurisdictional error.[34]

   [33] CB 98 at [33]

   [34] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J; NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]

9. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

10. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

11. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the scale, as it applied when the application was filed.  The applicant did not wish to be heard on costs.

12. I will order that 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

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  18 April 2019