DVZ17 v Minister for Immigration
[2018] FCCA 376
•16 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DVZ17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 376 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of Administrative Appeals Tribunal’s decision to affirm decision of Delegate not to grant a Protection visa – Applicant did not attend scheduled hearing before Administrative Appeals Tribunal – decision of Administrative Appeals Tribunal to proceed in the absence of the Applicant under s.426A of the Migration Act did not lack an intelligible justification and was not irrational or legally unreasonable in the circumstances – Tribunal decision not otherwise affected by jurisdictional error – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 426A |
| Cases cited: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 AIR15 v Minister for Immigration and Border Protection [2016] FCA 1425 SZFNK v Minister for Immigration and Multicultural Affairs [2006] FCA 1601 SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 SZRRW v Minister for Immigration and Citizenship [2013] FCA 332 |
| Applicant: | DVZ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2695 of 2017 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 16 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 16 February 2018 |
REPRESENTATION
| The Applicant appeared in person. |
| Counsel for the Respondents: | Mr A. Fisher |
| Solicitors for the Respondents: | HWL Ebsworth |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 28 August 2017 is dismissed.
The Applicant pay the First Respondent’s costs of the proceeding in the sum of $5,600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2695 of 2017
| DVZ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
EX TEMPORE
(Revised From Transcript)
Introduction and General Background
The Applicant in this proceeding is a male citizen of Malaysia aged 41 years, having been born on 31 October 1976.
By Application filed in this Court on 28 August 2017, he seeks to quash the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 25 July 2017 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 23 March 2017 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa).
The Applicant arrived in Australia on 2 June 2014 on a UD-601 Electronic Travel Authority visa. On 24 November 2016, he applied for a Protection visa. His claims to protection were essentially that he came to Australia because of an incident that took place in Malaysia on 13 May 1969 when many Chinese people were killed. The Applicant, who is of Chinese ethnicity, claimed that although this incident took place a long time ago, he and his family are still being targeted.
The Applicant said that he lived in fear and that people who looked like gangsters always came to his place and beat him up. He claimed that he could not return to Malaysia because he fears that they will harm him again and possibly kill him. He claimed that a lot of Chinese had died directly or indirectly in the incident in 1969, and that he had a family member involved in the incident.
The Applicant claimed that Malays looking like gangsters came to him at his working place and beat him up. They asserted to him that his father had been involved in the incident back in 1969. He claimed that these people hate the Chinese. He claimed that the Malaysian police would not protect him from harm and that he could not be relocated to another part of Malaysia because he would always be discovered.
Grounds and Criteria for the Granting of a Protection Visa
A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5] – [7] as follows:
[5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.
[6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.
[7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.
Decision of the Delegate
The Delegate of the Minister refused to grant a Protection visa to the Applicant. The Delegate was not, having regard to the limited information provided by the Applicant in his Protection visa application, satisfied that the Applicant had established his case. The Delegate was not satisfied that the Applicant was a refugee as defined by s.5H(1) of the Migration Act 1958 (Cth) (the Act) or that there was a real risk that the Applicant would suffer harm for the purposes of s.36(2)(aa) under the complementary protection criterion. The Delegate accordingly refused to grant a Protection visa to the Applicant.
Application to the Tribunal
By application lodged on 8 April 2017 the Applicant sought merits review of the Delegate’s decision. In that application he gave as his email address for the sending of correspondence [email protected]. Thereafter, by letter dated 29 June 2017 emailed to the Applicant at that email address, the Tribunal advised him that on the material that was before it, it was unable to make a decision favourable to the Applicant on that information alone.
Accordingly, the letter went on to invite him to a hearing before the Tribunal to give evidence and present arguments relating to the issues in his case at 9.30 am on 24 July 2017. The letter proceeded to say that if he was not able to attend the hearing, he needed to advise the Tribunal as soon as possible, and that any request to postpone the hearing must be made in writing as early as possible, including the reasons for making the request.
The letter went on to advise that if the Applicant did not attend the scheduled hearing the Tribunal might make a decision on the review without taking any further action to allow or enable him to appear before it or it might dismiss his application for review without any further consideration of the application or the information before it.
I note that the Applicant did not complete and return the Response to Hearing Invitation form which was forwarded as an attachment under cover of this letter of 29 June 2017.
The scheduled Tribunal hearing was on 24 July 2017. It is proved by the evidence and I find that a SMS hearing reminder was sent on 17 July 2017 at 11:01am to the Applicant’s mobile phone number given on his application for review, which stated as follows:
Reminder – your AAT hearing is on 24/07/17. Please check the hearing invitation to confirm details. Please do not reply. Any questions, call 1800 228 333.
I find on the evidence that again on 21 July 2017 at 11:00am, there was a further SMS hearing reminder sent to the Applicant which said:
Reminder – your AAT hearing is on 24 July 2017. Please check the invitation hearing to confirm details. Please do not reply. Any questions, call 1800 228 333.
Decision of the Tribunal
The Applicant did not appear at the Tribunal hearing on 24 July 2017. In those circumstances, the Tribunal exercised its discretion under s.426A of the Act to make a decision on the review without taking any further action to allow or enable the Applicant to appear. In my view, that decision to proceed was, in the circumstances facing the Tribunal, legally reasonable and supportable, and was not “illogical” or “irrational” or one that “lacked an intelligible justification”.
This is not a case where the Applicant had evinced to the Tribunal a keenness, intention and preparedness to argue his review application, and the non-appearance of the Applicant at the Tribunal was not one that ought to have seemed to the Tribunal as being “out of character”.
The Tribunal in its Decision Record at [3] – [4] generally recited the background to the hearing, including a reference to the letter of 29 June 2017, to which I have earlier referred, as well as the two separate SMS text reminders which had been sent to the Applicant. In these circumstances the Tribunal acted legally reasonably and without jurisdictional error in deciding under s.426A of the Act to proceed with the review.
The Tribunal then at [5] – [9] of its Decision Record recited the Refugee Convention and complementary protection criteria for the grant of a Protection visa, and at [10] noted that it had taken into account PAM3 and relevant country information. At [14] – [15] it set out the Applicant’s claims to protection and then at [16] it dealt with the Applicant’s failure to appear at the scheduled hearing and the problems that this failure had caused for the Tribunal in investigating and questioning the Applicant about his claims and the credibility of those claims. It gave a number of examples of matters which it would have wished to explore with the Applicant.
In the result, the Tribunal affirmed the decision of the Delegate under review not to grant to the Applicant a Protection visa.
Grounds of Attack on the Decision of the Tribunal
The Grounds of the Application in this Court are as follows:
Ground 1:
There exist Jurisdictional errors.
The Tribunal states my fear is not well-founded. I was attacked and threatened by a gang of Malays because I’m ethnic Chinese. Why cannot it be considered well-founded fear? Tribunal wrongly understands the law.
Ground 2:
Tribunal did not consider ethnic Chinese has been discriminated in Malaysia.
Consideration
Ground 1
Ground 1 is a bald assertion of jurisdictional error and does no more than invite a merits review in this Court of the decision of the Tribunal which is not available. Insofar as it is suggested that the Tribunal misunderstood the law I do not consider that such is maintainable. At [5] – [9] it correctly records the criteria for the grant of a Protection visa and at [10] confirms that it has taken into account PAM3 and DFAT country information assessments to the extent that they were relevant. In my view, the Tribunal has not wrongly understood the law.
It is not incumbent on the Court itself to independently consider whether the Tribunal has committed a jurisdictional error which has not been identified by the Applicant: AIR15 v Minister for Immigration and Border Protection [2016] FCA 1425 at [19] per Beach J; SZFNK v Minister for Immigration and Multicultural Affairs [2006] FCA 1601 at [4] – [5] per Madgwick J and SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 per Reeves J.
Nevertheless, I have considered the Decision Record of the Tribunal for myself and I cannot otherwise discern or identify jurisdictional error.
Ground 2
Ground 2 would seem to assert that the Tribunal failed to consider a claim made by the Applicant and that of course could, in certain circumstances, result in jurisdictional error. However, in my view, the Tribunal at [14] – [15] of its Decision Record gave a fair summary of the Applicant’s claims to protection and correctly summarised the claims that he made to protection based on his Chinese ethnicity. Nevertheless, in the result, for the reasons expressed by the Tribunal at [16] – [17], it was not satisfied that the Applicant had satisfied either the Refugees Convention criterion or the complementary protection criterion.
The simple fact of the matter is that the Tribunal’s finding affirming the decision of the Delegate was almost inevitable in a situation where the Applicant did not attend the Tribunal hearing and his claims to protection were necessarily fact sensitive. As the Full Court of the Federal Court said in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5] per French, Emmett & Dowsett JJ:
[5] In assessing the adequacy of these reasons, it must be kept in mind that the Tribunal had indicated to the appellant that it was unable to find in his favour on the basis of the material in its possession and invited him to attend to provide additional information. Clearly enough, the Tribunal was not obliged to accept at face value his short and very vague outline of his basis for fearing persecution in China. Having found that the outline was not sufficient to satisfy it that the appellant had a well-founded fear of persecution, it could do little more than offer him an opportunity to elaborate. When he failed to accept that opportunity, the inevitable consequence was the rejection of his application.
See also SZRRW v Minister for Immigration and Citizenship [2013] FCA 332 at [7] per Nicholas J.
Such was the case here. In my view, both Grounds fail to establish that the decision of the Tribunal was affected by jurisdictional error, and the Application filed on 28 August 2017 must be dismissed.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 16 February 2018
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