EBJ16 v Minister for Immigration

[2017] FCCA 2703

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBJ16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2703

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – applicant failed to appear before the Tribunal – the adverse findings made by the Tribunal were open – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 476

Applicant: EBJ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3717 of 2017

Judgment of: Judge Street

Hearing date: 6 November 2017

Date of Last Submission: 6 November 2017

Delivered at: Sydney

Delivered on: 6 November 2017

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3717 of 2017

EBJ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 24 November 2016 affirming the decision of the delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of Malaysia and his claims were assessed against that country. The applicant arrived in Australia on 4 August 2015 on a subclass 601 Electronic Travel Authority visa. That visa expired on 4 November 2015. The applicant then remained unlawfully in Australia until he applied for protection on 8 December 2015.

3. The delegate found the applicant failed to meet the criteria under the Act for the grant of a visa. The applicant claimed to fear harm as a result of his father borrowing money from private moneylenders to continue his business. The applicant alleged that the armed violence between Filipino groups and Malaysian forces in 2013 disrupted local business communities and had a significant impact on his family’s income, and his father could not make his monthly repayments to his lender. The applicant alleged the lender threatened to take his father’s business, but the business was not worth what was owed. The applicant alleged the lender asked the applicant’s father to sell his home to repay the debt, which the father refused.

4. The applicant alleged the local gang leader came to the father’s business and threatened the applicant’s father. The applicant alleged the business was ransacked and that the applicant had a direct confrontation with them. The applicant alleged he asked them to leave the shop and called the police. The applicant alleged the gang leader threatened to kill him and find him anywhere in Malaysia. The applicant alleged his parents were worried about his safety and asked him to leave the country. The applicant alleged there is a criminal gang with connections amongst local police and current government, with law enforcement authorities turning a blind eye to them.

The Tribunal’s decision

1. The applicant applied to the Tribunal for review and was invited to attend a hearing by letter dated 26 October 2016 to be held on 23 November 2016. The applicant made telephone calls to the Tribunal requesting that the hearing be postponed. The applicant was informed that if he was unwell, he needed to provide medical evidence. No medical evidence was provided by the applicant to the Tribunal. The applicant failed to appear at the hearing before the Tribunal on 23 November 2016. The Tribunal noted the applicant had also been sent an SMS message.

2. The Tribunal decided to proceed to make a determination in relation to the applicant’s application. The Tribunal identified the relevant law in an attachment to the decision. The Tribunal identified the background to the application for review and also set out the material parts of the relevant law. In its reasons, the Tribunal summarised the applicant’s claims and evidence. Given the applicant’s failure to appear, the Tribunal was not satisfied about significant aspects of the applicant’s circumstances and matters regarding his claims and the nature of the harm he continues to fear. The Tribunal was not satisfied the applicant faced a real chance of persecution involving serious harm in Malaysia now or in the reasonably foreseeable future. The Tribunal found the applicant did not have a well-founded fear of persecution in Malaysia.

3. The Tribunal found that it was not satisfied there are 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 he will suffer significant harm for the purpose of s 36(2)(aa) of the Act. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review. 

Before this Court

1. On 11 April 2017, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. Further opportunity in that regard was given by orders of the Court made on 17 July 2017. No such documents were filed by the applicant. 

2. At the commencement of the hearing, the Court explained to the applicant this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary this meant the Court was considering whether the Tribunal’s decision was unlawful or unfair. The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs. 

3. The Court explained it would have identified the evidence, then hear submissions from the applicant, then hear submissions from counsel of the first respondent, and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

Applicant’s submissions from the bar table

1. From the bar table, the applicant sought to explain why it was he did not attend before the Tribunal. His explanation in that regard was that he had no money because he had no work rights and that he lived a long way away in Griffith. That is different to the explanation the applicant proffered to the Tribunal about being unwell. In any event, the applicant’s statements from the bar table do not identify any basis upon which the decision of the Tribunal to proceed to determine the matter could be said to be unreasonable, or to lack an evident and intelligible justification. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review.  On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review.

Section 438 certificate

1. The first respondent has drawn the Court’s attention to the existence of a certificate under s 438 of the Act and the two documents the subject of the certificate, being a checklist and an identification document, have been tendered in evidence. The documents are clearly irrelevant to the applicant’s claims and do not affect the assessment of the applicant’s claims. No practical injustice was occasioned by reason of the failure to disclose the certificate or the documents the subject of the certificate. The documents the subject of the certificate are not relevant, credible or significant. No jurisdictional error occurred by reason of the failure to disclose the certificate or the documents the subject of the certificate in the conduct of the review.

2. The grounds in the application are as follows:

   1. The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

   The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon his returns to Malaysia

   2. The second respondent failed to comply with the mandatory requirement under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

   Particular:

   The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

   3. The Tribunal had no jurisdiction to make the said decision because its 'reasonable satisfaction’ was not arrived in accordance with the provisions of the Migration Act.

Ground 1

1. In relation to ground 1, the Tribunal correctly identified the relevant law. There is no substance in the proposition that the Tribunal misconstrued the relevant risks in relation to the assessment of the criteria. Given the applicant’s failure to appear before the Tribunal, the adverse findings were open and cannot be said to lack an evident and intelligible justification. No jurisdictional error is alleged and ground 1 is made out. 

Ground 2

1. In relation to ground 2, no information enlivening any obligation under s 424A of the Act is identified. Accordingly, ground 2 is misconceived. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, the Tribunal correctly identified the relevant law. There is no substance in the assertion that the decision was not made in accordance with the provisions of the Act. Further, the decision on its face cannot be said to be unreasonable. Insofar as the applicant’s affidavit identified an assertion of failing to take into account the full gravity of the applicant’s circumstances and consequences of his claim, it was the applicant who failed to appear before the Tribunal.

2. The Tribunal had written to the applicant identifying it was unable to make a favourable decision on the material currently before it. The decision of the Tribunal was not unjust and on the face of the material, the Tribunal took into account the claims that the applicant had made but was unable to be satisfied on the material before it that the applicant met the criteria under the Refugees Convention, and/or in respect of complementary protection. Those findings were open. No jurisdictional error as alleged in ground 3 is made out.

3. No jurisdictional error was made out by anything said by the applicant in his affidavit. As the application fails to make out any jurisdictional error, the application was dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 November 2017