Ebi17 v Minister for Immigration
[2018] FCCA 44
•10 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EBI17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 44 |
| Catchwords: MIGRATION – Judicial review – Malaysian citizen – whether procedural or other unfairness – whether bias – whether claim unparticularised – whether well-founded fear of persecution – nature of credibility findings – whether jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), rr.13.03C, 13.07 Migration Act 1958 (Cth), Pt.7, Div.4, ss.5H, 5J, 36, 65, 474, 476 Migration and Maritime Powers Legislations Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1 |
| Applicant: | EBI17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 485 of 2017 |
| Judgment of: | Judge Lucev |
| Hearing date: | 22 December 2017 |
| Date of Last Submission: | 22 December 2017 |
| Delivered at: | Perth |
| Delivered on: | 10 January 2018 |
REPRESENTATION
| Applicant: | No appearance |
| Counsel for the First Respondent: | Mr PJ Corbould |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS (as made 22 December 2017)
The application be dismissed.
Formal written reasons for judgment be published by Chambers at a later date.
The applicant pay the first respondent’s costs in the sum of $7328.00 by 22 January 2018.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 485 of 2017
| EBI17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction – orders previously made
On 22 December 2017 the Court made the following orders in relation to the applicant’s application for judicial review (“Judicial Review Application”) under the Migration Act 1958 (Cth) (“Migration Act”) filed on 11 September 2017:
1. The application be dismissed.
2. Formal written reasons for judgment be published by Chambers at a later date.
3. The applicant pay the first respondents costs in the sum of $7328.00 by 22 January 2018.
What follows are the written Reasons for Judgment referred to in order 2 above.
Judicial Review Application
The Judicial Review Application seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”) to refuse the applicant a protection (Class XA) visa (“Protection Visa”). A copy of the Tribunal Decision dated 4 September 2017 is at Court Book (“CB”) 184-191.
Background
The background to the Judicial Review Application is as follows:
a)the applicant, a Malaysian citizen, arrived in Australia on a valid UD-976 Electronic Travel Authority visa on 19 November 2011: CB 14 and 73;
b)the applicant remained in Australia as an unlawful non-citizen from 19 February 2012 until his application for a Protection Visa was lodged on 29 April 2015: CB 52. He made the following claims for protection:
i)his uncle was a gambler who forced him and his brothers to beg on the streets for money and threatened to cut off his hands and legs if he did not do so: CB 32;
ii)loan sharks believe he can make money begging on the streets and will cut off his hands and legs if he does not do so, and they have hit him heavily on his head and have cut his arms and he still has injuries arising from this: CB 32-33; and
iii)the police did not protect him and will only do so if he has the money to pay them as his family is poor, and the loan sharks have “underground” power all over Malaysia and he will not be safe anywhere: CB 34;
c)on 18 May 2016 the Delegate’s Decision was to refuse the applicant a Protection Visa: CB 73-85, and on 14 June 2016 the applicant lodged an application for review of the Delegate’s Decision by the Tribunal: CB 87;
d)the applicant attended two hearings with the Tribunal on 25 July 2017 (“First Tribunal Hearing”) and 22 August 2017 (“Second Tribunal Hearing”). At the First Tribunal Hearing the applicant raised no new claims: CB 143;
e)at the Second Tribunal Hearing the Tribunal made an oral decision affirming the Delegate’s Decision not to grant the applicant a Protection Visa: CB 162; and
f)on 11 September 2017 the applicant filed the Judicial Review Application, and on 14 September 2017 the Tribunal gave written reasons to the applicant by publishing the Tribunal Decision: CB 183.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)stated that the applicant's primary claim for protection rested upon threats made against him by his uncle and criminal groups in Malaysia and that the applicant believed those threats would be acted upon if he returned to Malaysia: CB 185 at [9];
b)noted that the applicant could not recall with any clarity when the alleged assaults against him occurred prior to his leaving for Australia: CB 188 at [27];
c)raised its concerns with the applicant about the credibility of some aspects of his evidence, stated that the applicant had chosen not to respond to those concerns when asked, and suggested the applicant’s claims lacked an appropriate level of detail and did not appear to be credible generally: CB 188 at [28];
d)placed little weight on the applicant's claims for protection as stated in his Protection Visa application, though it was prepared to accept that he and his family were harassed by an abusive uncle: CB 188-189 at [29];
e)found that the applicant's family's continued residence in Malaysia after he left for Australia indicated an ability to relocate safely within Malaysia contrary to the claim he would face serious or significant harm if he returned to Malaysia: CB 188-189 at [29];
f)noted country information showing that the authorities were reasonably effective in combating organised crime and protecting people in Malaysia from criminal harm, and that there was nothing before it that indicated that the Malaysian State and its agencies would be unable or unwilling to protect someone in the applicant’s particular position, while further stating authorities in Malaysia would be willing and able to offer the applicant protection and therefore there were effective State protection measures available to the applicant: CB 189 at [30] and CB 190 at [38];
g)found that, taken at its highest, the applicant's claims and evidence did not reach a sufficient level to demonstrate the applicant faced a real chance of serious harm or a real risk of significant harm, now or in the foreseeable future, if he returned to Malaysia: CB 189 at [31];
h)was not satisfied the applicant had demonstrated he would experience serious harm or systematic and discriminatory conduct if he returned to Malaysia, therefore there was not a real chance of the applicant being persecuted by reason of membership of a particular social group, namely returnees, if he returned to Malaysia: CB 189 at [32]; and
i)concluded that the applicant did not have a well-founded fear of persecution pursuant to s.5J(2) of the Migration Act and, based on credible country information and its findings as to the applicant's claims, found that the applicant was not a refugee as defined in s.5H(1) of the Migration Act and did not meet either the refugee or complementary protection criteria in s.36(2)(a) and (aa) of the Migration Act: CB 190 at [37]-[39] and CB 190-191 at [40]-[43].
Judicial Review Application – grounds and proceedings in this Court
The applicant lodged his Judicial Review Application in this Court and relied on the following grounds:
1. AAT asked very unfair questions regarding my protection claims.
2. AAT said my mother and my sister are in Malaysia so I should be in Malaysia too. This is unfair.
3. AAT accused me of telling lies simply because my family are still in Malaysia. AAT didn't consider that my family are still in danger even they are in Malaysia. This is unfair.
The affidavit accompanying the Judicial Review Application annexed the letter sent by the Tribunal to the applicant stating the oral decision made at the Second Tribunal Hearing had been to affirm the Delegate’s Decision. At the time of lodging the Judicial Review Application the applicant had not yet received a copy of the written reasons for the Tribunal Decision. The Court was provided with the Tribunal Decision by the Minister: CB 184-191.
On 25 October 2017 a Registrar of the Court made orders (“Registrar’s Orders”) allowing the applicant an opportunity to file an amended Judicial Review Application, any further supporting affidavits and a written outline of submissions. The applicant did not file any further substantive materials for consideration by the Court, but a new Notice of Address for Service was provided to the Registry on 10 November 2017 revealing the applicant no longer resided in Western Australia. No request for a hearing by video or telephone link was received from the applicant.
Prior to the hearing on 22 December 2017 the Court and a representative of the Minister attempted to contact the applicant by e-mail to confirm the time and date of the hearing. No response to the e-mail correspondence was received.
The hearing proceeded at the scheduled time on 22 December 2017, and on the matter being called three times outside the Court room, the applicant failed to make an appearance.
Upon the failure of the applicant to make an appearance Counsel for the Minister stated to the Court the applicant had contacted his instructing solicitor who had confirmed to the applicant the hearing would proceed at the time and date listed despite his moving interstate. Given the applicant was advised the hearing would proceed, and had not made any arrangements for an appearance by telephone or video-link, the Minister sought that the Judicial Review Application be heard and determined, as opposed to being dismissed for non-appearance pursuant to r.13.03C of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”).
Consideration
In circumstances where the applicant has failed to appear the Court has the discretion to dismiss the proceedings for non-appearance, or may proceed with the matter in the absence of the party and make summary judgment on the Judicial Review Application: FCC Rules, rr.13.03C and 13.07. Given the applicant:
a)was provided an opportunity to present further material in support of his case by the Registrar’s Orders and he chose not to, and from which it can be inferred that he did not seek to amend any claims or provide any further evidence to rely upon;
b)was on notice the hearing was to proceed at the listed time and date; and
c)made no request to make an appearance by another means, such as telephone or video-link,
the Court does not consider proceeding to hear and determine the Judicial Review Application in the absence of the applicant is a denial of procedural fairness: Slaveski v Rotstein & Associates Pty Ltd [2012] VSCA 291 at [8]-[13] per Maxwell P (from which an application for special leave to appeal was refused by the High Court: Slaveski v Rotstein & Associates Pty Ltd [2013] HCASL 67). Thus, on 22 December 2017 the Court made a summary judgment on the Judicial Review Application having regard to the grounds stated by the applicant in the Judicial Review Application, reasons for which follow.
Jurisdictional error required
A Tribunal Decision may only be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. Such an error will only constitute a jurisdictional error where the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such 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; Craig v South Australia (1995) 184 CLR 163; (1995) 82 A Crim R 359; (1995) 69 ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193; CLR at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. Jurisdictional error may also arise by reason of a breach of the procedural fairness required by provisions of the Migration Act: 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 at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (“SZBEL”).
Grounds generally
In relation to the grounds generally:
a)this Court does not have the jurisdiction to review the merits of Tribunal Decision, or determine the applicant’s claim for the Protection Visa: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLRat 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang); Attorney-General (NSW) v Quin (1990) 170 CLR 1; (1990) 64 ALJR 327; (1990) 33 IR 263; (1990) 93 ALR 1; CLR at 35-36 per Brennan J (“Quin”), and the applicant's "grounds" mainly complain that the Tribunal was unfair in its consideration of his claims, and are simply an invitation to the Court to enter into impermissible merits review contrary to the long-standing principles that flow from Wu Shan Liang and Quin;
b)the grounds assert no basis for a finding of jurisdictional error in the Tribunal Decision. Mere disagreement with the Tribunal’s findings of fact does not support a contention or claim the Tribunal committed a jurisdictional error: SZJEH v Minister for Immigration & Citizenship [2007] FCA 1706 at [14] per Jacobson J (“SZJEH”). Asserting the Tribunal Decision was unfair is inadequate to, and does not of itself, establish jurisdictional error in Tribunal Decision;
c)the Tribunal noted the applicant did not address some of the concerns raised by the Tribunal about the credibility of his evidence and that there was a lack of clarity in some of the applicant's claims about the alleged assaults against him: CB 188 at [27]-[28];
d)the Tribunal, as part of its fact-finding function, was entitled to accept or reject or give such weight to the evidence proffered as it thought appropriate in all the circumstances and matters of weight are for the Tribunal and do not generally give rise to reviewable error: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] per French J; Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ; Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 at [32] per Sundberg, Emmett and Conti JJ;
e)the Tribunal was not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265, FCR at 451 per Beaumont J; Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567, CLR at 596 per Kirby J; Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155; (1985) 65 ALR 549, FCR at 169-70 per Wilcox J;
f)it was open to the Tribunal, on the evidence before it, to reject the applicant's claims as not credible and conclude that he did not face a real chance of serious or significant harm upon return to Malaysia, and while the applicant may consider the Tribunal's findings and conclusions to be “unfair”, this is no more than a disagreement with the findings of fact made by the Tribunal and does not constitute jurisdictional error; and
g)even extending appropriate latitude to a self-represented applicant, the Judicial Review Application does not properly particularise the grounds, and it can be dismissed on that basis alone: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J (“WZAVW”); WZATH v Minister for Immigration & Border Protection [2014] FCA 969. Nevertheless, the Court has separately considered, to the best of its ability, each of the grounds to see if any jurisdictional error is discernible: see [16]-[28] below.
There is nothing in the materials to suggest that the applicant was denied procedural fairness or that the Tribunal failed to comply with any of the requirements of Pt.7 Div.4 of the Migration Act as:
a)the applicant attended and gave evidence and presented arguments, and was provided with a real and meaningful opportunity to participate in the First and Second Tribunal Hearings process, and that process was not simply a “hollow shell or empty gesture”: Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 at [31] per Goldberg J;
b)an interpreter was present at the First and Second Tribunal Hearings, and on the evidence before the Court no apparent concern was raised by the Tribunal or the applicant that the standard of interpretation was inadequate; and
c)the applicant was made aware the Tribunal found his claims to be not credible, and the Tribunal specifically put this to the applicant and the applicant chose not to respond: CB 176 and CB 188 at [28]; SZBEL at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ, in circumstances where the applicant need not have been given notice his credibility was in issue as the Delegate had considered the same credibility issue in relation to his claims lacking detail as determinative: SZBEL at [35] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
Ground 1
The Court has inferred the applicant may be suggesting the Tribunal acted unfairly, or displayed bias, in the questions posed or put to the applicant regarding his claims and credibility. The Tribunal is allowed to vigorously test evidence where an applicant’s credibility is in issue: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 at [30]-[31] per Gleeson CJ, Gaudron and Gummow JJ. The mere giving of oral reasons for decision does not indicate bias: SZANH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1280 at [39] per Sackville J.
Save as indicated hereunder, the Court notes that there is currently no evidence before the Court, such as a recording or transcript of the Tribunal hearing, which would suggest that the applicant was not given a real and meaningful hearing before the Tribunal. The Court also notes that the applicant did not avail himself of the opportunity to file such further evidence in these proceedings, notwithstanding the Registrar’s Orders allowing him to do so. In the absence of such evidence, or evidence on the face of the Tribunal record making out the claim, any allegation that the Tribunal did not allow the applicant to properly deal with these matters cannot succeed: NAOA vMinister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21] per Beaumont, Merkel and Hely JJ; Brar v Minister for Immigration & Border Protection & Anor (No 2) [2017] FCCA 1538; (2017) 322 FLR 81 at [15] per Judge Lucev.
There is nothing in the transcript of oral reasons and the Tribunal Decision provided: see CB 170-180 and CB 184-191 respectively, which suggests that any questions asked or inquiries made of the applicant by the Tribunal were unfair, in the context of the Tribunal making informed determinations on the applicant’s credibility and his Protection Visa claims. The onus is on the applicant to establish and provide evidence of jurisdictional error by the Tribunal, and a failure to provide any material in support of a claim of jurisdictional error inevitably hinders the applicant’s satisfaction of this onus: Maroun v Minister for Immigration & Citizenship [2009] FCA 1284 at [15] per Jagot J (“Maroun”).
If by “unfair questions” the applicant means that the Tribunal asked him “wrong questions”, then even if the Tribunal did ask a “wrong question” of an applicant, unless such question breaches obligations of procedural fairness or is legally unreasonable or illogical, it will not amount to a jurisdictional error for the same reason the Tribunal making a wrong finding of fact is not considered an error of law or jurisdictional error: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9] per Heerey, Nicholson and Selway JJ, that being that it is the exercise of a discretion by the Tribunal which this Court has no jurisdiction to review. There is nothing in the materials to suggest that the Tribunal asked itself a wrong question when determining the applicant’s Protection Visa claims that could amount to jurisdictional error. Rather, the Tribunal Decision clearly addresses the question of whether the applicant satisfies the criteria for the grant of a Protection Visa in s.36(2)(a) and (aa) of the Migration Act, which was the correct question to address.
No jurisdictional error is established by ground 1.
Ground 2
Ground 2 makes a bare claim, baldly asserted, without particulars, detail or evidence. The statement in the Tribunal Decision that the Court believes the applicant is referring to reads:
The Tribunal also finds that the applicant's family's continued residence in Malaysia after the applicant left for Australia is more suggestive of the applicant being able to relocate safely within Malaysia than suggesting that the applicant would face serious or significant harm if he was to return to Malaysia: CB 189 at [29].
Prior to making the above finding the Tribunal provided the applicant with an opportunity to explain why his mother and sister remained in Malaysia if they were suffering as the applicant claimed that he was suffering. The Tribunal Decision notes this, and the applicant’s response, as follows:
The Tribunal pointed out to the applicant that he had stated in his application for protection that since 2015 his mother resided in Malaysia, and that his sister resided in Malaysia with her father… The applicant suggested that his parents and sister were prepared to put up with the harassment to an extent that he and his brothers were not prepared to endure: CB at [26]
The Migration and Maritime Powers Legislations Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) amended the Migration Act to insert s.5J to codify the definition of a ‘well-founded fear of persecution.’ The amendment became effective from 16 December 2014, and the applicant having applied for his Protection Visa subsequent to this date must satisfy all three criteria in s.5J(1) of the Migration Act, which reads as follows:
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
The applicant claims it was unfair the Tribunal said his mother and sister were in Malaysia, and so he should be in Malaysia too, but this oversimplifies the findings made by the Tribunal, and ignores the fact that the Tribunal was applying the relevant criteria, particularly that in s.5J(1)(b) and (c) of the Migration Act, in order to determine if the applicant had a well-founded fear of persecution. Having regard to:
a)the evidence before the Tribunal, that being that the applicant’s mother and sister, and possibly his father, remained in Malaysia: CB 188 at [26];
b)the applicant’s inconsistencies when discussing where his family resided: CB 188 at [26]; and
c)the applicant’s admission that a friend had prepared the application for review to the Tribunal: CB 188 at [24],
there were sufficient and logical grounds for the Tribunal to make a finding of that the applicant did not face a real chance of persecution in all areas of the Malaysia: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367 at [37]-[42] per Heydon, Crennan and Bell JJ.
No jurisdictional error is established by ground 2.
Ground 3
Ground 3 makes another bald assertion, and accuses the Tribunal of calling the applicant a liar. Adverse credibility findings might involve jurisdictional error where they deny an applicant procedural fairness or are made on an illogical or unreasonable basis: CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; (2016) AAR 413 at [36]-[44] per McKerracher, Griffiths and Rangiah JJ. That is, the error must be one going essentially to the jurisdiction of the Tribunal: SZJEH at [17] per Jacobson J; SZSHV v Minister for Immigration & Border Protection [2014] FCA 253 at [27]-[31] per Flick J. Otherwise, credibility findings are essentially matters of fact “par excellence” for the Tribunal and not reviewable by the Court on an application for judicial review: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [67] per McHugh J; WZASY v Minister for Immigration & Anor [2017] FCCA 1623 at [41] per Judge Lucev. The credibility findings made by the Tribunal concerning the applicant were open to the Tribunal for the reasons it gave in the Tribunal Decision.
Insofar as ground 3 might be said to imply that there was a claim made that the applicant’s family was still in danger even though they are in Malaysia, or that the Tribunal ought to have made inquiries in relation to that issue, the Tribunal was not obliged or required to make further inquiries into dangers now said to be faced by the applicant’s family; rather, it was for the applicant to satisfy the Tribunal by putting before it credible evidence as to the dangers said to be faced by his family: Migration Act, s.65; Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; (2009) 259 ALR 429, a task which the Tribunal was clearly satisfied that the applicant did not fulfil.
No jurisdictional error is established by ground 3.
Conclusion and orders
For the above reasons the Court has concluded that no jurisdictional error in the Tribunal Decision has been established by the applicant, and it was for those reasons that the Court made orders on 22 December 2017 dismissing the Judicial Review Application and awarding costs to the Minister.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 10 January 2018
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