DWM16 v Minister for Immigration & Anor
[2018] FCCA 921
•17 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DWM16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 921 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Malaysian citizen – where no grounds of review in judicial review application – whether jurisdictional error. |
| Legislation: Administrative Decisions Judicial Review Act 1975 (Cth) Federal Circuit Court of Australia Act 1999 (Cth), s.3(2) Federal Circuit Court Rules 2001 (Cth), rr.1.06, 4.02, 44.05 Federal Court Rules 1976 (Cth) Migration Act 1958 (Cth), Pt.7, Div.4, ss.5J, 476, 499 |
| Cases cited: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68; (2016) 241 FCR 30; (2016) 338 ALR 551 Gao v Federal Privacy Commissioner [2002] FCA 823; (2002) 76 ALD 447 Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; (2002) 187 ALR 117; (2002) 76 ALJR 598 |
| Applicant: | DWM16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 611 of 2016 |
| Judgment of: | Judge Lucev |
| Hearing date: | 16 April 2018 |
| Date of Last Submission: | 16 April 2018 |
| Delivered at: | Perth |
| Delivered on: | 17 April 2018 |
REPRESENTATION
| Applicant: | In person (with the assistance of an interpreter) |
| Counsel for the First Respondent: | Ms A Ladhams |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS (as made 16 April 2018)
The affidavit of Ms Sara Anicic sworn 16 April 2018 (“Ms Anicic’s Affidavit”) be admitted into evidence.
Page 20 of Form 866C annexed to Ms Anicic’s Affidavit be included in the Court Book as page 35A.
The application be dismissed.
Reasons for judgment be published from chambers at a later date.
The applicant pay the First Respondent’s costs in the amount of $7,328 by 16 May 2016.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 611 of 2016
| DWM16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seek judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 4 December 2016. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant the applicant a Protection (Class XA) visa (“Protection Visa”). A copy of the Tribunal Decision is found in the Court Book (“CB”) 112-129.
At hearing the Court made the following orders:
1. The affidavit of Ms Sara Anicic sworn 16 April 2018 (“Ms Anicic’s Affidavit”) be admitted into evidence.
2. Page 20 of Form 866C annexed to Ms Anicic’s Affidavit be included in the Court Book as page 35A.
3. The application be dismissed.
4. Reasons for judgment be published from chambers at a later date.
5. The applicant pay the First Respondent’s costs in the amount of $7,328 by 16 May 2016.
What follows are the Court’s Reasons for Judgment referred to in Order 4 above.
Court Book amendment
The orders with respect to the affidavit of Ms Sara Anicic and the amendment to the Court Book were necessary procedural orders to include a page omitted from the Court Book, being a page in the applicant’s Protection Visa application referred to in the Tribunal Decision: see CB 113 at [6].
Background
The background to the Judicial Review Application is as follows:
a)the applicant is a Malaysian citizen who first arrived in Australia as a tourist on 28 January 2016: CB 1;
b)on 15 February 2016, the applicant lodged an application for a Protection Visa making the following claims for protection:
i)the Malaysian government and authorities used tear gas and acid water to break up a rally of Gabungan Pilihanraya Bersih dan Adil (“Bersih”), a coalition for clean and fair elections in Malaysia, and the authorities take action against all who conspire with members of Bersih: CB 35-36, of which the applicant is a member: CB 35A; and
ii)all the Malaysian authorities are supporters of the government so he cannot move to another part of the country because they will find him, catch him and he will be jailed, and his life is in danger: CB 36-37;
c)on 16 May 2016 the Delegate’s Decision was to refuse the applicant a Protection Visa: CB 43-56;
d)on 20 May 2016 the applicant applied for review with the Tribunal and was invited to attend a hearing on 31 August 2016 (“Tribunal Hearing”), in relation to which a bundle of documents including a trading licence, a police report and a certificate of business name registration was provided to the Tribunal by the applicant: CB 69, CB 80-87 and CB 93-100; and
e)the applicant attended the Tribunal Hearing 31 August 2016 and he was notified of the Tribunal’s Decision to affirm the Delegate’s Decision on 6 December 2016.
Tribunal Decision
In the Tribunal Decision, the Tribunal:
a)referred to the applicant’s claims raised in his Protection Visa application and that at hearing he conceded the application was made by his cousin, Ho Chen Poh, who was assisted by another person, although he does not know the other person;
b)was told that the applicant paid $200 for the application to be prepared, and that the reasons in the application are not the reasons the applicant does not want to return to Malaysia, as he just signed a blank form;
c)was told by the applicant that he thought that his cousin would include his actual claims given he can only read simple English, but he found out about what his cousin wrote in the written application after he received the Delegate’s Decision record;
d)referred to telling the applicant he could lodge a complaint with the Migration Agents Registration Authority against those responsible for the misleading Protection Visa application, to which the applicant said he could not as his cousin had died of a stroke in July 2016: CB 114 at [15]-[18];
e)was told by the applicant that in Malaysia the applicant was involved in a business partnership from 2013 until March 2015, and his partner borrowed money under the partnership name, and people came to collect the money that his partner borrowed, 5 million Malaysian Ringgit from a money lender, whom the applicant named, but whom he did not think was licenced: CB 114 at [20]-[21];
f)asked the applicant a number of questions concerning the money lender and the false claims made in the Protection Visa application, and put to the applicant that based on his claims, he had stopped working with his partner in April 2015, his partner borrowed the money in June 2015, and in September 2015 the money lender demanded payment, which suggests the partnership was dissolved in April 2015, and the loan made individually to his partner, to which the applicant responded that the money lender showed him the company registration certificate and told him he was responsible to pay, although he has doubts as to whether the partner did in fact receive the amount claimed by the money lender: CB 115 at [22]-[25];
g)put to the applicant that his credibility was in issue, given his claims are inconsistent with his written application and he has provided no evidence other than the oral statements made at the Tribunal Hearing, to which the applicant noted three days after the applicant was first asked to be paid, the money lender returned and took his goods, so the applicant relocated to another part of the city and changed the company name as the money lender was harassing him and his family, had had rocks and firecrackers thrown at his house, and had called him and threatened to break his hand: CB 115 at [24]-[34];
h)made reference and put to the applicant that the police report he provided appeared to present the situation as the applicant's father making the complaint that his “son and his friend took a loan from loan shark(s) to start up a business”, rather than the applicant’s business partner borrowing money, to which the applicant responded he did not know why it said this and repeated “it was a lot of money”: CB 116 at [36];
i)stated to the applicant that it might conclude that if it in fact found he owes a debt, the money lenders do not intend to harm his family because it appears they have had ample opportunity to do so for some time now but have not availed themselves of that opportunity, and he replied that the money lenders still want the money and that his father has looked for someone to protect him, and that he has a friend to talk to the money lenders and to tell them the loan is from the applicant and not to harm his family: CB 116-117 at [40];
j)referred to the relevant criterion and provisions of the Migration Act, the mandatory considerations issued under s.499 of the Migration Act the Tribunal must take into account, and legal principles and case law guiding the assessment of the applicant’s credibility and claims: CB 117-118 at [41]-[50];
k)found that it had concerns with significant aspects of the applicant's claims, particularly the inconsistency between the applicant's claims in his Protection Visa application and those made at the Tribunal Hearing, but also on account of other inconsistencies, including between the applicant's account that his business partner had alone taken out a loan on behalf of the business and a police report which suggested that the applicant had taken out the loan along with his business partner: CB 119 at [55];
l)considered that country information, particularly that the Malaysian police are an effective police service, suggested the applicant's claims were not credible, and therefore concluded that it did not regard the applicant as a credible witness: CB 119 at [55];
m)given the applicant's age and business background, did not accept the applicant had “signed a blank form”, rather he had changed his claim in the hope it might produce a positive result in circumstances where his original Bersih claim failed to convince the Delegate: CB 119-120 at [56]-[59];
n)accepted that the applicant may have been involved in a business partnership in Malaysia, but did not accept the applicant's claims that his ex-partner had borrowed a significant amount of money in the name of the partnership, because of the applicant's inability to explain the details of the loan and the inconsistency in the police report;
o)considered the other documents the applicant provided at the Tribunal Hearing, being the business name registration and a trading licence, and found that the documents do not advance the applicant's claim that he is somehow indebted to a money lender: CB 120-121 at [60];
p)did not accept that the applicant was indebted to money lenders, and that he and his family had been, or continued to be, threatened or harassed, likewise finding that the applicant had not been put on a blacklist that forbade him from loaning money or finding employment: CB 121 at [61]-[64];
q)based on its findings, concluded that the applicant did not face a real chance of serious harm if he returned to Malaysia for any reason specified in s.5J(1)(a) of the Migration Act: CB 121 at [64];
r)carefully considered all the evidence before it, and assessed the applicant's claims in relation to Bersih and in relation to money lenders to find the applicant does not face a real risk of “significant harm” in Malaysia as a necessary and foreseeable consequence of being removed to that country: CB 122 at [65]-[67]; and
s)affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 122 at [71].
Judicial Review Application
On 14 December 2016 the applicant lodged the Judicial Review Application. The applicant set out no grounds in his Judicial Review Application, and the supporting affidavit merely annexed the Tribunal Decision. On 1 February 2017 a Registrar of this Court made orders (“Registrar’s Orders”) which provided the applicant with an opportunity to:
file and serve any amended application upon which the applicant intends to rely, giving complete particulars of each ground of review.
The applicant filed no further material with the Court prior to the matter coming on for hearing on 16 April 2018.
At hearing, the Court explained to the applicant that he must make submissions directed to establishing there was jurisdictional error in the Tribunal Decision, and explained:
a)what might constitute a jurisdictional error;
b)that the Court was not engaged in reviewing the merits of the applicant’s case before the Tribunal; and
c)that the Court’s task was limited to determining whether the particular kind of legal error known as jurisdictional error was evident in the Tribunal Decision,
and then invited the applicant to make any oral submissions as to jurisdictional error in the Tribunal Decision.
The applicant, in response to prompting from the Court, twice indicated he had no submissions to make in support of the Judicial Review Application, and when further prompted said he had said and submitted everything to the Tribunal and had nothing further to add.
The Minister, in accordance with the Registrar’s Orders, filed written submissions seeking the dismissal of the Judicial Review Application with costs, and orally addressed those submissions at hearing.
Consideration
The requirement for jurisdictional error
This Court does not have the jurisdiction to review the merits of the Tribunal Decision, or determine the applicant’s claim for protection: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. This Court must exercise a power of judicial review, being a review limited to determining the legality of the Tribunal Decision, and whether it is affected by jurisdictional error: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59 at [114] per Kirby J.
The legality of the Tribunal Decision may be affected where the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ.
In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300.
Where a decision is found to involve jurisdictional error, that decision lacks legal foundation and consequently may be regarded in law as no decision at all: Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597; (2002) 187 ALR 117; (2002) 76 ALJR 598.
Lack of grounds of review
Rule 4.02 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) states that the content of the Judicial Review Application must briefly state the orders sought and the basis on which the orders are sought, and r.44.05(1) of the FCC Rules provides that the Judicial Review Application “must be made in accordance with the approved form”, which form provides for the grounds to be set out.
The applicant seeks an order that the Tribunal Decision be remitted for reconsideration, but has included no grounds of judicial review, and nothing said at hearing by way of oral submission constitutes a proper ground of judicial review. While the object of this Court is to operate informally and without undue formality: Federal Circuit Court of Australia Act 1999 (Cth) s.3(2), it is difficult for the Court to do so in circumstances where there is an absence of material or content on which to properly consider the Judicial Review Application. In C v Minister for Immigration & Multicultural Affairs [1999] FCA 1663; (1999) 60 ALD 255 (“C”) the Federal Court was dealing with an application for judicial review with no grounds specified, but in which the applicant made submissions at hearing which specified a number of errors by the Refugee Review Tribunal which included a failure to have regard to evidence provided by a humanitarian non-government organisation, a failure to ask the “what if I am wrong” test in relation to the findings made, a failure to give reasons for decision, and giving a decision which was induced or affected by actual bias: C at [8] per Mansfield J. The Federal Court relied on a provision of the then Federal Court Rules 1976 (Cth), the same in substance as r.1.06 of the FCC Rules, to dispense with non-compliance with a requirement to set out grounds of judicial review as it felt it was in the interests of justice to do so: C at [6] per Mansfield J. In expressing that the Minister had suffered no prejudice the Federal Court stated at [7] per Mansfield J:
It would be unjust in those circumstances to deprive the applicant of the opportunity for judicial review, with the possible consequence (as he alleges) that he will be returned to Bangladesh where he will be persecuted, by reason of his failure fully to comply.
The circumstances referred to by the Federal Court in C at [7] per Mansfield J were that following the making of the submissions made by the applicant, the Federal Court adjourned the proceedings to allow the Minister to consider the applicant’s submissions and make any necessary further submissions, and the Minister did not make any submission that the application should not be entertained given those circumstances: C at [3] per Mansfield J. In this case the circumstances are wholly different, because given the opportunity to put submissions to the Court concerning any possible jurisdictional error, the applicant did not make any submissions which might be construed so as to give rise to a possible ground of judicial review or any possible jurisdictional error in the Tribunal Decision.
In Gao v Federal Privacy Commissioner [2002] FCA 823; (2002) 76 ALD 447 at [20]-[21] per Goldberg J (“Gao”) the Federal Court found it inappropriate to extend the time in which to bring an application for review against the Federal Privacy Commissioner under the Administrative Decisions Judicial Review Act 1975 (Cth) as on the material before the Federal Court no grounds of review were disclosed, and nor did the application for review or applicant’s affidavit in Gao particularise facts or other matters or circumstances capable of constituting relevant grounds of review: Gao at [20] per Goldberg J.
It is well established in migration proceedings that the failure to particularise a ground of judicial review is sufficient to warrant the dismissal of the Judicial Review Application on that basis alone: AYE16v Minister for Immigration & Border Protection [2018] FCA 108 at [25] per Barker J; WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 at [5]-[6] per Logan J. It follows, with even stronger reason, that the failure to provide grounds of judicial review at all is sufficient to warrant dismissal of the Judicial Review Application.
In Dashti v Minister for Immigration & Multicultural Affairs [2000] FCA 1631 at [4] per Branson J the Federal Court said that it:
…entertain[ed] serious doubts as to whether an application for review of a judicially reviewable decision which does not specify any grounds upon which the application is made is a valid application under the Act. In view of the concerns publicly expressed by Australian authorities about abuses of the system of review established by the Act, including concerns that applications are made to this Court for the sole purpose of delaying departure from Australia, it is surprising that in this as in similar other cases the respondent has not objected to the competence of the application …
The same might be said of the Minister’s approach in this case. Further, the Court notes that the Judicial Review Application might have been rejected for filing by the Registry on the same basis.
Similar reasoning to that in [16]-[19] above was set out and applied by the Court in EBE17 v Minister for Immigration & Anor [2018] FCCA 45 at [16]-[18] per Judge Lucev (“EBE17”) in dismissing the judicial review application in those proceedings.
In circumstances where:
a)the Judicial Review Application contained no grounds of judicial review;
b)the applicant was given the opportunity by reason of the Registrar’s Orders to include grounds of judicial review in an amended Judicial Review Application, and failed to do so;
c)the applicant was given the opportunity provided by the Registrar’s Orders to file an amended Judicial Review Application with particularised grounds of judicial review, and failed to do so; and
d)when given the opportunity at hearing to make submissions, the applicant made no submissions which identified any possible jurisdictional error in the Tribunal Decision,
the failure to provide grounds of judicial review is sufficient, in the circumstances, to warrant dismissal of the Judicial Review Application.
The Court made similar findings in EBE17 at [19] per Judge Lucev. The Court also refers to DEM16 v Minister for Immigration & Anor [2017] FCCA 805 at [9] per Judge Jarrett:
His application was hopeless. It was hopeless because there were no grounds of review specified of in that application
The same can be said here.
For the above reasons, which are similar to those in EBE17, the Judicial Review Application must be dismissed because of the applicant’s failure to provide any grounds of judicial review in the Judicial Review Application.
Duty to a self-represented litigant
Because the applicant was self-represented the Court was alert to, but perceived no, jurisdictional error otherwise in the Tribunal Decision: AMF15 v Minister for Immigration & Border Protection [2016] FCAFC 68; (2016) 241 FCR 30; (2016) 338 ALR 551 at [39] per Flick, Griffiths and Perry JJ; MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J.
Orders
For the above reasons the Court on 16 April 2018 made the orders set out at [2] above.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 17 April 2018
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