DWC16 v Minister for Immigration

[2017] FCCA 2141

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWC16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2141

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.36, 412, 414, 424A, 425, 425A, 426A

Cases cited:

Minister for Immigration v NAMW (2004) 140 FCR 572

Applicant: DWC16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3553 of 2016

Judgment of: Judge Driver

Hearing date: 5 September 2017

Delivered at: Sydney

Delivered on: 5 September 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Gawidziel of Australian Government Solicitor

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 $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3553 of 2016

DWC16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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) made on 16 November 2016.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of legal submissions filed on 29 August 2017. 

Background

1. The applicant is a 26 year old national of Malaysia.  She arrived in Australia on 6 January 2011 on a visitor visa which expired on 6 April 2011.  She applied for a protection visa on 24 June 2015[1].

   [1] Book of Relevant Documents (RD) 1-35. The applicant resided unlawfully in Australia from the date of expiry of the visitor visa until making the application for a protection visa: RD 60.

2. On 15 March 2016, the applicant was invited to attend an interview with a delegate of the Minister’s Department to assess her protection visa application[2].  The applicant did not attend the interview on 31 March 2016, and the protection visa was refused by the delegate on 14 April 2016[3].

   [2] RD 47-56.

   [3] RD 57-66.

3. The applicant applied to the Tribunal for review of the delegate’s decision on 20 May 2016[4].

   [4] RD 67-68.

The applicant’s claims for protection

1. The applicant claims to fear harm from her husband in Malaysia.  The applicant alleges that her husband has been violent towards her in the past, and that she was forced to marry him[5].  She fears that she will be harmed or killed by him if she returns to Malaysia.

   [5] RD 30.

The evidence before the Tribunal and the Tribunal’s decision

1. The applicant appeared before the Tribunal on 3 November 2016[6].  During the hearing, the applicant gave evidence about her background, her family, her claims, as well as evidence relating to her current situation in Australia[7].

   [6] RD 82-85.

   [7] RD 92 at [11].

2. The Tribunal accepted that the applicant was a national of Malaysia[8].  It rejected all other claims raised by the applicant.  It found that the applicant was not a witness of truth, and observed that the only consistent evidence she gave was that she married in the month of October[9].

   [8] RD 93 at [24].

   [9] RD 93 at [25].

3. In particular, the Tribunal observed the following inconsistent claims made by the applicant in her protection visa application and in her oral evidence before the Tribunal:

   a)the applicant claimed in her protection visa application that she left school in December 2008, but she told the Tribunal that she finished high school in 2004[10];

   b)the applicant claimed in her protection visa application that she and “J”[11], her husband, lived with her parents in their home, but she told the Tribunal that she moved into J’s home in November 2009, after they were married[12].  The applicant also claimed in her protection visa application that she and J started living together in March 2009 in her parents’ house[13];

   c)the applicant claimed in her protection visa application that J asked her parents to move out of their home in July 2010, but she told the Tribunal that she and J would visit her parents who lived in their own home[14];

   d)the applicant claimed in her protection visa application that J forced her to marry him on 31 October 2010, but she told the Tribunal that she married J in October 2009 and moved in with him a month after their marriage, making no mention of being forced into marriage[15].

   [10] RD 93 at [26].

   [11] The name has been anonymised.

   [12] RD 93 at [27].

   [13] RD 31.

   [14] RD 93 at [28].

   [15] RD 93 at [29].

4. After considering the applicant’s evidence, the Tribunal made the following findings on the available evidence and the applicant’s credibility:

   a)had the applicant met a person who became her husband, she would have been able to provide consistent evidence about the circumstances of when and how they met and married[16];

   b)the applicant’s reasons for not applying for a protection visa in the four years after her last visa expired, being that she thought her friends were lying when they told her about the visa process, indicated a lack of subjective fear of persecution[17];

   c)the applicant claimed in her protection visa application that her husband’s name was J, whereas she told the Tribunal that his name was “C”[18].  The Tribunal did not accept that the applicant’s explanation for the inconsistency, that J was her husband’s nickname, was plausible.  The Tribunal did not accept that the applicant, when asked in a question on a legal document for the name of a spouse, would include her husband’s nickname and not his proper name[19].

   [16] RD 93 at [30].

   [17] RD 93 at [31].

   [18] The name has been anonymised.

   [19] RD 94 at [32].

5. Having found that the applicant was not a credible witness, the Tribunal made the following ultimate factual findings:

   a)it did not accept that the applicant had met a person by the name of C or J either when she was at school or after she completed school[20];

   b)it was not satisfied that the applicant was married in Malaysia to a person who physically beat her, causing her to flee Malaysia to Australia[21];

   c)although the Tribunal accepted that the applicant worked for a period of time in Malaysia, it did not accept that anyone prevented her from going to university, that her parents were forced to move out of their home, or that they transferred their property into her name[22];

   d)it did not accept that the applicant feared harm in Malaysia for reasons of her race, religion, nationality, membership of a particular social group or political opinion[23].

   [20] RD 94 at [33].

   [21] RD 94 at [33].

   [22] RD 94 at [33].

   [23] RD 94 at [34].

6. The Tribunal concluded that the applicant was not a refugee for the purposes of s.36(2)(a) of the Migration Act 1958 (Migration Act), nor that there was a real risk that she would suffer harm as defined under s.36(2)(aa) of the Migration Act.

7. The Tribunal therefore affirmed the decision under review.  Its decision dated 16 November 2016 was notified to the applicant by email dated 17 November 2016[24]. 

   [24] RD 88-89.

The present proceedings

1. These proceedings began with a show cause application filed on 14 December 2016.  The applicant continues to rely upon that application.  There are three unparticularised grounds in the application.  They are as follows:

   1.The Administrative Appeals Tribunal failed to carry out its statutory duty.

   2.The Tribunal committed jurisdictional error by failing to comply with the compulsory requirements of S424A Migration Act, with regard to country information used by the Tribunal.

   3.The Tribunal misinformed itself of the particular circumstances of the applicant and incorrectly applied the test.

2. The application is supported by a short affidavit filed with it, which I received as a submission.  In the affidavit, the applicant repeats the second ground in the application. 

3. I have before me as evidence, the book of Relevant Documents filed on 26 May 2017. 

4. I invited oral submissions from the applicant this morning.  She said that the Tribunal asked her questions which disclosed a lack of care on its part.  When I asked her for details, she told me that the Tribunal asked her questions which were different from the information she had provided.  When pressed, she referred to the issue concerning her ex-husband’s name.  That is dealt with by the Tribunal at [32] of its reasons[25].  I read that paragraph to the applicant and invited her comment.  She said that she had no difficulty with the Tribunal’s reasoning in that paragraph.  It stated as follows:

   Further, the applicant claimed that her husband’s name was [J] whereas she told the Tribunal that his name was [C], but when the inconsistency was put she said that his nick name was [J].  I do not accept as plausible that when asked in a question on a legal document for the name of a spouse she would put in his nickname and not his proper name.

   [25] RD 94.

5. The applicant was not able to articulate any other issue of asserted jurisdictional error by the Tribunal.  Neither is any such error apparent to me from my own reading of the material.  The Minister’s submissions deal adequately with the grounds of review advanced.  I agree with those submissions.

First ground

1. In her first ground, the applicant contends that the Tribunal failed to carry out its statutory duty. The applicant has not explained the duty which it is alleged the Tribunal failed to carry out. In the absence of any particulars to the ground, there is no basis for this complaint. The applicant made a valid application for review under s.412 of the Migration Act for review of a Part 7 reviewable decision, and as such, the Tribunal reviewed the decision pursuant to s.414 of the Migration Act.

2. The Tribunal invited the applicant to a hearing in accordance with s.425 of the Migration Act. The notice of invitation to appear at a hearing detailed the date, time and place at which the applicant was scheduled to appear at the hearing, was sent via email to the applicant, was given in the prescribed notice period, and contained a statement of the effect of s.426A of the Migration Act[26]. This was undertaken in accordance with s.425A of the Migration Act.

   [26] RD 75-77.

3. The applicant appeared at the hearing scheduled for 3 November 2016.  The Tribunal afforded her the opportunity to put forward evidence regarding her background, her family, her claims, as well as evidence relating to her current situation in Australia[27].  The Tribunal raised with the applicant all issues of concern, including inconsistencies between the claims made in her protection visa application and her oral evidence to the Tribunal during the hearing.  The Tribunal made findings which were open to it on the material before it for the reasons it gave.

   [27] RD 92 at [11].

4. There is no arguable substance in Ground 1.

Second ground

1. In her second ground, the applicant contends that the Tribunal failed to comply with s.424A of the Migration Act with regard to its use of country information.

2. The ground is misconceived. Country information is not information which engages s.424A(1) of the Migration Act and is expressly excluded by s.424A(3)(a) of the Migration Act[28].

   [28] Minister for Immigration v NAMW (2004) 140 FCR 572 at [64] – [74] and [112] – [138].

3. The Tribunal expressly notes that it raised relevant country information with the applicant at the hearing[29].

   [29] RD 92 at [20].

4. There is no arguable substance in Ground 2.

Third ground

1. In her third ground, the applicant contends that the Tribunal misinformed itself of the applicant’s circumstances and incorrectly applied the criteria in the Migration Act.

2. This ground does not identify the “circumstances” about which the applicant contends the Tribunal misinformed itself.  In the absence of particulars this complaint is without substance.

3. The Tribunal considered the oral evidence of the applicant at hearing.  The Tribunal also considered the evidence of the applicant in her protection visa application, and observed that there were a number of inconsistencies in those claims and the claims made at hearing[30].  When those inconsistencies were raised with the applicant at hearing, the applicant chose not to comment[31].  The Tribunal’s adverse credibility findings were open to it for the reasons which it gave.

   [30] RD 93 at [22].

   [31] RD 93 at [23].

4. As to the applicant’s complaint that the Tribunal “incorrectly applied the test”, ie, presumably that the Tribunal did not correctly apply the criteria in s.36(2)(a) and s.36(2)(aa) of the Migration Act, there is nothing in the reasons of the Tribunal to support this allegation.

5. The Tribunal had regard to the relevant provisions of the Migration Act, and set out the correct law and tests in Annexure A of its decision[32]. It expressly considered s.36(2)(a) of the Migration Act. It did not accept that the applicant feared harm in Malaysia for reasons of her race, religion, nationality, membership of a particular social group, or political opinion[33]. The Tribunal also expressly considered the complementary protection criterion under s.36(2)(aa) of the Migration Act, and did not accept on the evidence before it that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will be arbitrarily deprived of her life, that the death penalty will be carried out on her, that she will be subjected to cruel or inhuman treatment or punishment, or that she will be subjected to degrading treatment or punishment[34].

   [32] RD 96-99.

   [33] RD 94 at [34].

   [34] RD 94 at [38].

6. There is no arguable substance in Ground 3.

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

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

9. 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 $3,606.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:     7 September 2017