DSE16 v Minister for Immigration

[2017] FCCA 2050

FEDERAL CIRCUIT COURT OF AUSTRALIA

DSE16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2050

Catchwords:
MIGRATION – Protection Visa – whether tribunal’s decision affected by jurisdictional error – where no error established in tribunal’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 424AA

Applicant: DSE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1129 of 2016

Judgment of: Judge Vasta

Hearing date: 21 August 2017

Date of Last Submission: 21 August 2017

Delivered at: Brisbane

Delivered on: 21 August 2017

REPRESENTATION

There being no appearance by or on behalf of the Applicant

Solicitors for the First Respondent: SPARKE HELMORE

ORDERS

1. That the Application filed 5 December 2016 be dismissed.

2. That the Applicant pay the First Respondent’s costs of and incidental to this proceeding fixed in the sum of $5,800.00 (inclusive of GST).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1129 of 2016

DSE16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 5 December 2016, the Applicant filed an application in this Court, for this Court to review a decision made by the Administrative Appeals Tribunal (“the AAT”) on 31 October 2016, which affirms the decision of the delegate not to grant the Applicant a protection visa.

2. This is a somewhat unusual set of circumstances.  The Applicant was born in 1980, and was, and still is, a citizen of Malaysia.  She came to this country, it would seem, for a holiday and had a visitor visa, in 2012.  In 2015, she lodged this protection visa application.

3. The gravamen of her allegations are that she left Malaysia because she wished to avoid a risk of being harmed by her ex-boyfriend, a Mr Tan Cok Wai.  She said that she got to know Mr Wai in 2006, whilst working at a shop.  He was a regular customer and he lived nearby.  In 2007 she became his girlfriend. 

4. She then describes a violent relationship, where she had wanted to separate him but he had threatened to kill her if she left him.  She claimed that Mr Wai slapped and kicked her many times, and put a knife to her face and threatened to kill her.  This knife incident occurred in 2009 and she said that she reported Mr Wai to police, but they did not do anything to protect her, the Applicant, because Mr Wai’s brother was a policeman.

5. There were many inconsistencies in her application.  Originally, she had said that she had only ever been in one job, which was the job she was in when she met Mr Wai, and she had only ever lived at one address.  Then, in the course of the hearing, she told the Tribunal she had had many occupations in her lifetime and that she and Mr Wai had moved address many times and, in fact, at one stage, had lived with the Mr Wai’s brother, who is the policeman. 

6. She said that she had only met the brother, and had not met her boyfriend’s parents.  She did not know anything about the brother, other than he was a policeman.  She did not know what sort of police work he did or what rank he held, and she had never asked him because they had worked different hours.  She did say that he did not wear a uniform.

7. She was asked about how the relationship came to an end, and she said that it did not.  She just purchased a ticket to Australia and told Mr Wai that she was going on holiday to Thailand with friends.  She said that she simply left her belongings behind. 

8. She said to the Tribunal that in the four years that had passed, from 2012 to 2016, she had not had any contact with Mr Wai.  She said that he had not contacted any member of the family. 

9. The Tribunal had asked her about her concerns about going back to Malaysia, and she said she was afraid that Mr Wai might look her up, as they never formally separated.  However, it is noted that it does not seem as though they ever formally were together in any form of civil union, either.

10. The Tribunal asked whether she could safely return to another part of Malaysia, or stay with her grandmother, and she said that all her family were in Kuala Lumpur, and she would have to stay there and the brother, being a police officer, could easily find her for Mr Wai. 

11. The Tribunal said that, given that there had been four years since she had last seen Mr Wai, that that circumstance would be an indication that she would be safe.  She did not accept that that was the case, and only then told the Tribunal that two years ago, Mr Wai had made contact with the family. 

12. Such a revelation to the Tribunal seems extremely opportunistic, having been made at the time and in the context that it was being made.  The Applicant also said that she did not want to go back to Malaysia, because she had heard that there was lots of robberies there and got the sense that it would not be safe.

13. The Tribunal assessed all of those claims, and came to the conclusion that they did not accept her evidence and, having not accepted her evidence, the Tribunal found that she did not meet the refugee criterion, nor did she meet the complimentary protection criterion. 

14. When she first appeared before me, on 10 April 2017, she appeared with an interpreter.  I explained to her what the role of the Court was, and the fact that I could not give her a visa, nor could I say that she could not have a visa. 

15. I told her that her grounds were somewhat vague, and she needed to expand upon them to allow me to understand what it was that she was saying to me.  I made provision for her to submit written submissions, to expand upon those grounds.

16. The Applicant did not do this, and the Minister did submit written submissions, pursuant to the order. The matter was listed for hearing before me today, at midday. The Applicant had not turned up, but her interpreter had turned up, and I allowed a period of 20 minutes to pass, to see whether it is that she may have turned up or, somehow, was just running late.

17. There have been no messages received by the registry and, given that she did not comply with the order as to written submissions, and the fact that she was not here at midday, and still not here after 20 minutes grace, it is safe to say that the inference that she does not want to be part of these proceedings, is an appropriate conclusion to make.

18. I do have the choice of dealing with the matter as a default judgment, or simply still hearing the matter and dealing with it on the merits.  I have decided to act in the latter respect. 

19. The grounds of her application were these, and I will deal with them, seriatim:

    “1. In making the decision, the Administrative Appeal Tribunal was, or appeared to be, biased.”

20. I cannot accept such a submission on the face of it. There does not seem to be any bias in the manner in which the Tribunal has gone about its decision making.  Simply because a Tribunal finds against a person does not mean that the Tribunal was biased.  To be biased would mean it would not matter what evidence, and what the quality of that evidence was, a Tribunal had already made up its mind so that there could not be any other outcome other than the one that the Tribunal had already predetermined. 

21. There is no evidence that would satisfy me of this, and the Applicant has not seen fit to give to me any other information that would show that there was any bias.

22. The “appearance of bias” is one of those matters where one has to look at what the proverbial bystander in the back of a courtroom might perceive to be bias. But this does not apply to hearings before the Tribunal. I am of the view that either the Tribunal was biased or was not biased.

23. The Tribunal hearing itself is closed, and so there is no need to even look at whether there was an appearance of bias, because it is not a matter where the appearances need to be assessed by the proverbial independent reviewer sitting at the back of the Court. 

24. Having found that there was no actual bias, I do not find that there is any substance in ground 1.

25. Ground Two is:

    “2.The Tribunal has ignored relevant considerations in making the decision.”

26. A relevant consideration, in the context of these sorts of matters, means a matter of which there is a mandatory requirement for the Tribunal to consider such a matter. The ground would be made out if it could be shown that the Tribunal did not consider a matter that the Tribunal must consider. There does not seem to be any matter of that nature at all.

27. Again, without the benefit of any submissions, as was ordered by the Court, it seems that this ground as well is doomed to failure.

28. Ground Three was:

    “3. The Tribunal is affected by jurisdictional error, in that it did not comply with its obligation to put adverse information relied upon as part of the reason for the decision to the applicant for comment.”

29. That ground seems to misinterpret what the effect of s.424A and s.424AA really are. The Tribunal does not have the requirement to let the Applicant know what the decision that they are making is, and ask for a comment.

    The Tribunal must give the opportunity to an Applicant to understand what other material there is before the Tribunal, that does not come from the Applicant, that would tend to have the Tribunal decide to affirm the decision. 

    Again, the Applicant has not identified what this information is and, on my reading of the reasons, I cannot discern what this information would be either. 

30. It seems to me, with due respect to the Tribunal, that they have undertaken their function in a proper way, and that there is no evidence at all that there has been any jurisdictional error committed by the Tribunal in this ground or in any other ground.

31. Having come to that conclusion, the only possible result of this application is that it is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  4 October 2017