Ebs16 v Minister for Immigration

[2020] FCCA 947

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBS16 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 947

Catchwords:
MIGRATION – Protection Visa – decision of the Administrative Appeals Tribunal – whether the Tribunal took into account an irrelevant consideration – whether the Tribunal was biased – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), sch.1

Migration Act 1958 (Cth), ss.5J(2), 36(2)(a), 36(2)(aa), 476, pt. 7

Cases cited:

Minister for Immigration v Jia Legeng [2001] HCA 17
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Minister for Immigration & Citizenship v MZXPA [2008] FCA 185
SZFDE v Minister for Immigration & Citizenship [2007] HCA 35

Applicant: EBS16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2813 of 2016

Judgment of: Judge C. E. Kirton QC

Hearing date: 5 December 2018

Date of Last Submission: 5 December 2018

Delivered at: Melbourne

Delivered on: 29 April 2020

REPRESENTATION

The Applicant: In person

Lawyer for the First Respondent: Ms I. Ward

The Second Respondent: Submitting appearance, save as to costs

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The Applicant’s application dated 23 December 2016 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2813 of 2016

EBS16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of an application filed on 23 December 2016, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), dated 13 December 2016.

2. The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) to refuse to grant the Applicant a Protection (Class XA) visa (Protection Visa).

3. These proceedings are brought pursuant to s.476 of the Migration Act 1958 (Cth) (Act). To obtain assistance from this Court, the Applicant must show that the Tribunal has fallen into jurisdictional error.

Background

1. The Court had before it a Court Book numbering 108 pages. The Court has reviewed the material contained in the Court Book in detail.

2. The Court notes that the Minister’s written submissions, filed on 19 November 2018 (Minister’s Written Submissions) at [3]-[10] accurately summarise the factual history of this matter. The Court adopts those submissions, with amendments, as its own. They provide, relevantly, as follows.

3. The Applicant, a citizen of Malaysia, arrived in Australia on 5 May 2007 as the holder of an Electronic Travel Authority (Subclass 976) visa, which was valid until 5 August 2007.

4. From 6 August 2007 until 28 April 2015, the Applicant remained in Australia unlawfully. On 28 April 2015, the Applicant applied for the Protection Visa[1]. The Applicant indicated in the Protection Visa application form that he had no assistance completing the application[2].

   [1] Court Book (CB) 1-35.

   [2] CB 8.

5. The Applicant’s initial claims, articulated in his Protection Visa application form were as follows[3]:

   [3] CB 30-32.

   a)He left Malaysia because he is a bisexual.

   b)In relation to what would happen to him if he returned to Malaysia:

   My parents, all family members were begun insult me, I cannot communicate with them since then. I am a Buddishm, I know I cannot be a gay, since my families aware of my habit[4].

   (Errors in original)

   c)The Applicant claimed that he experienced harm in Malaysia, as follows:

   The community found this truth and they regularly restrict my freedom, do not give food, not allow to sleep after they persuaded me many times. This has been repeated in my life[5].

   (Errors in original)

   d)If returned to Malaysia the Applicant claimed that he would be restricted within the whole community and would not be able to find a job or make a normal life.

   e)The Applicant claimed the Authorities of Malaysia would not protect him and he would not be able to relocate within Malaysia because of his sexual preference.

   [4] CB 30.

   [5] CB 31.

6. On 30 April 2015, the Department of Immigration and Border Protection (Department) sent a letter to the Applicant inviting him to arrange an interview with an officer of the Department[6]. The Applicant did not arrange an interview nor did he provide any further evidence to support his claims.

   [6] CB 40.

7. On 6 August 2015, the Delegate refused to grant the Applicant the Protection Visa on the basis of limited information before it regarding the Applicant’s claims[7] (Delegate’s Decision).

   [7] CB 53-61.

8. On 26 August 2015, the Applicant applied to the Tribunal for review of the Delegate’s Decision[8].

   [8] CB 62-63.

9. The Applicant attended a hearing before the Tribunal on 12 December 2016 to give evidence and present arguments[9]. The Applicant was assisted by a Cantonese interpreter. The Applicant’s friend also attended the hearing as a witness, however, they did not have evidence regarding the Applicant’s circumstances in Malaysia and therefore, were not required to give evidence[10].

   [9] CB 71-73.

   [10] CB 88, at [2].

10. At the hearing, the Applicant presented a written statement to the Tribunal with entirely new claims[11]. The new claims explained that the Applicant feared harm from loan sharks in Malaysia whom he had borrowed money from for a business venture. The business ran into trouble before he could repay the debt. His friend also borrowed money from the loan sharks, however, his friend has since left the country and the loan sharks had demanded that he also pay his friend’s debt. He had been in hiding in different locations in Malaysia, however, the loan sharks always found him. They had beaten him and had his photo and ID cards and had threatened his family[12].

    [11] CB 89-90, at [11].

    [12] CB 83-84.

11. The Applicant also presented the Tribunal with a statement which indicated that he had been cheated by his former migration agent who had written incorrect claims in his Protection Visa application form. The statement also requested an adjournment of the hearing. The Tribunal confirmed with the Applicant that the statement had been written by a friend, that he was not aware of the adjournment request and that he wished to proceed with the hearing[13].

    [13] CB 90, at [13].

The Tribunal’s Decision

1. On 13 December 2016, the Tribunal affirmed the Delegate’s Decision not to grant the Applicant the Protection Visa[14] (Tribunal’s Decision). The Tribunal’s decision appears at pages 87-99 of the Court Book.

   [14] CB 88-96.

2. The Minister’s Written Submissions at [12]-[17] accurately summarise the Tribunal’s Decision. The Court adopts the summary provided in those submissions, with amendments, as its own.

3. The Tribunal noted that the Applicant had conceded that his initial claims of being bisexual were false and that he resiled from these claims. The Tribunal found that on the Applicant’s own evidence he was not bisexual, had never had any difficulties arising from his sexual identity in Malaysia and does not fear harm arising from his sexual identity. As a result, the Tribunal found that the Applicant did not have a real chance of serious harm or real risk of significant harm on account of being bisexual[15].

   [15] CB 91, at [22].

4. The Tribunal expressed concern that the Applicant had waited almost 18 months to present these new claims to the Tribunal. It did not accept that the Applicant’s poor English skills would have prevented him from reading, understanding and taking steps to rectify what he said were now false claims, in the time since he received the Delegate’s Decision[16].

   [16] CB 91, at [23].

5. The Tribunal then detailed the documentary and oral evidence that the Applicant had provided in support of the new claim. The Tribunal noted that this evidence was inconsistent, vague and doubtful in many aspects[17].

   [17] CB 91-93, at [23]-[35] and [43].

6. The Tribunal summarised the country information relating to loan sharks and illegal money lending. It noted the Applicant’s response to the information and further indicated that the situation had changed since the Applicant had left Malaysia[18].

   [18] CB 93-95, at [36]-[42].

7. The Tribunal then considered the Applicant’s eight year delay in applying for protection. It noted the explanation the Applicant had provided for that delay but did not accept it[19].

   [19] CB 95, at [44]-[45].

8. Against the background of the Applicant’s documentary and oral evidence, the country information and the delay in applying for the Protection Visa, the Tribunal found the Applicant’s new claims to not be genuine. The Tribunal found that the Applicant had concocted these claims after he realised that his initial claim of being bisexual would not be successful. Accordingly, it rejected the entirety of the new claims[20].

   [20] CB 95-96, at [46]-[47].

9. The Tribunal also found that the Applicant could approach the Malaysian authorities in the future, should he have trouble with criminals on return to Malaysia[21].

   [21] CB 96, at [48].

10. The Tribunal concluded that the Applicant did not have a real chance of serious harm on return to Malaysia and that he did not satisfy s.36(2)(a) of the Act[22].

    [22] CB 96, at [49], [51].

11. Having considered the Applicant’s evidence, the Tribunal also found that the Applicant did not face a real risk of significant harm on return to Malaysia, and therefore concluded that he did not satisfy s.36(2)(aa) of the Act[23].

    [23] CB 96, at [50], [52].

Proceedings before this Court

1. The Applicant filed his judicial review application on 23 December 2016 (Application). The Application contained one ground of review, as follows:

   The Tribunal did not made its decision 12 December 2016 according to law in that:

   1. The Tribunal committed jurisdiction error by taking into account irrelevant considerations.

   PARTICULAR

   a. In paragraphs 45, the Tribunal referred to the Applicant’s willingness to approach the authorities for identity documents being a strong support for the contention that the applicant did not fear being harmed in Malaysia.

   b. Whether the applicant was willing to or was able to obtain identity document is an erelevant consideration of whether or not the applicant fears being harmed in Malaysia.

   (Errors in original)

2. It should be noted that while the Applicant refers to the decision dated 12 December 2016, the Tribunal’s Decision was dated 13 December 2016.

3. Orders were made on 5 July 2017 by Registrar Burns, permitting the Applicant to file and serve any amended application, any affidavits, supplementary court book and written submissions 28 days before the final hearing. However, no further materials were provided by the Applicant.

4. The Applicant was assisted by a Cantonese interpreter at the hearing on 5 December 2018. During the hearing the Applicant reiterated that his initial application was incorrect and claimed that he had been deceived but had provided the Tribunal with the ‘true story and [… the Tribunal] did not believe [him]’[24].

[24] Transcript of the hearing on 5 December 2018 (Transcript), Page 3, Line: 19-22.

1. The Applicant also submitted:

   INTERPRETER:    I think the member had prejudice against me. I should – he said, “I don’t believe you.” I asked for an adjournment, and he didn’t even look at it. And he said I didn’t need it[25].

Consideration

[25] Transcript, Page 5, Line: 27-29.

The Applicant’s Ground of Review

1. The Applicant’s ground of review argues that the Tribunal took into account irrelevant considerations and takes particular issue with paragraph 45 of the Tribunal’s Decision. That paragraph, relevantly, reads as follows:

   The applicant stated that he did not know about protection visas. He worked illegally. He evaded being caught by the authorities and eventually came to know about the protection visa in 2015. The Tribunal stated it has significant concerns with this claim, given the prominence that refugee and asylum seeker issues have had in the last 15 years in Australia, including in ethnic communities like the Malaysian community. The Tribunal does not accept that the applicant did not know of the protection visa system, and considers that the applicant did not apply for a protection visa as he did not have genuine concerns regarding his return to Malaysia[26].

   [26] CB 95, at [45].

2. Here, there is no reference to any concern that the Tribunal had in relation to the Applicant’s willingness to approach the authorities for identity documents, nor is any finding made based on this purported concern.

3. At paragraph 43 of its decision the Tribunal makes reference to the Applicant not having any supporting materials in relation to him working at a water vending company, taking out a loan and going to the police[27]. The paragraph makes no reference to the “willingness to approach authorities”. The Tribunal simply noted that it had some concern that the Applicant had not sought to obtain any documentation in support of his claims, though noted that it could be difficult for asylum seekers to provide such materials. It was entirely open to the Tribunal to have concerns about a lack of documentation.

   [27] CB 95, at [43].

4. The Court notes that the only reference to the Applicant approaching the authorities in the Tribunal’s Decision is at paragraph 48 where, having found that the Applicant had concocted his claims regarding his involvement with loan sharks, the Tribunal found that:

   […] the applicant can approach the authorities in the future should he have difficulties with criminals on return to Malaysia. The Tribunal considers that the country information demonstrates that the Malaysian police have taken steps to reform their service, including the issue of corruption, though some work remains to be done, and have taken steps to stop the loan shark practices across Malaysia. The Tribunal considers that should the applicant need the police in the future for any reason they will be in a position to assist him.

5. Again, there is no reference to the Applicant’s “willingness” to approach the authorities to obtain identity documents.

6. Having reviewed the Tribunal’s Decision closely, it is unclear where the Tribunal made a finding or remark that, because the Applicant was able to get identity documents from the authorities, it meant he did not have a fear of harm. Hence, on a factual level ground one must fail.

7. To the extent that the Applicant’s ground takes issue with the relevance of the Tribunal’s finding that he could approach the authorities in the future should he have difficulties with criminals on return to Malaysia, the Court notes that s.5J(2) of the Act states:

   A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

8. This was, therefore, a relevant consideration for the Tribunal to have regard to. It was also a finding that was open to the Tribunal on the basis of the country information that was before it and had been extensively canvassed and which the Applicant was asked to comment upon.

9. Ground one fails to identify any jurisdictional error in the Tribunal’s decision.

Allegation of prejudice

1. In the hearing the Applicant submitted that he believed the Tribunal member had shown prejudice towards him. The Court takes this to be an allegation of bias.

2. Any allegation of bias is one that must be distinctly made and clearly proven: Minister for Immigration v Jia Legeng [2001] HCA 17 (Jia Legeng), at [69]. It is for the Applicant to establish that:

   a)In the case of actual bias, the Tribunal was committed to a conclusion regardless of any evidence or arguments presented. That is, the Tribunal was not open to persuasion and its view was incapable of alteration: Jia Legeng, at [71]-[72]; or

   b)In the case of apprehended bias, a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the Applicant’s case: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80, at [2].

3. In this case, the Applicant has made a bare assertion that the Tribunal made a comment that it did not believe him. Without a transcript of the hearing before the Tribunal, the Court cannot establish whether the decision maker told the Applicant ‘I don’t believe you’, as alleged.

4. However, even if this was the case, the Court is not satisfied that this would be sufficient to evidence bias on the part of the Tribunal. The Tribunal is entitled to test an Applicant’s evidence.  It is apparent from the Tribunal’s Decision that the Tribunal provided the Applicant with an opportunity to comment on the “concerns” that it had in order for the Applicant to rebut that view: Minister for Immigration & Citizenship v MZXPA [2008] FCA 185, at [15]-[17].

5. On the evidence before the Court it cannot be said that the Tribunal acted subjectively or without an impartial mind. There is nothing to indicate any pre-judgment on the part of the Tribunal.  Rather, the Tribunal independently assessed the Applicant’s claims, engaged with the Applicant’s evidence and assessed the country information it had before it to make findings that were open to it. This in no way indicates bias.

6. Accepting that the test is one of possibility, and not probability, it is still the case that any allegation of bias must be “clearly proven”. The Court does not accept that there is any possibility that the Tribunal was biased in the case here.

7. On the whole, the Court is not satisfied that there is any demonstrable bias (or “prejudice”) in the Tribunal’s approach to the Applicant’s case or in its decision as a whole.

Request for an Adjournment and Fraud of the Migration Agent

1. At the hearing the Applicant made a submission to the Court that he had asked the Tribunal for an adjournment and was told that he did not need one (see [30] above). The Applicant also submitted that:

   INTERPRETER:    Okay. So for my first application I was, like, deceived by someone – someone else, but then my friend wrote my application, he got it wrong. He just put in, like, whatever. So – and then when I went to AAT, I gave the true story and then the judge did not believe me[28].

   [28] Transcript, Page 3, Line: 19-22.

2. The Court notes that both of these issues are addressed at [12] and [13] of the Tribunal’s decision as follows:

   12. The applicant also provided a statement that he had been cheated by his agent. He was not bisexual as stated but escaped to Australia because of a problem with a loan shark. A friend who could read English told him of the decision. The applicant provided evidence of his dealings with his agent, an Ivy Wu and· her assistant Jacky Fu. The applicant provided a series of text exchanges that show he was provided with his decision record on 8 June 2015 and other documents in August 2015. He also had discussions with this agent, who was never on the record, in November 2016. The applicant claimed he was not aware of what his agent wrote in his application. The Tribunal notes that the applicant had the decision from the Department, which reiterates his written claims and makes findings upon them, from June 2015.

   13. The applicant stated that the additional statement was written by a friend. The Tribunal noted that it asked for a postponement of the hearing. The Tribunal asked if the applicant wanted an adjournment, noting that the applicant had had some time to prepare his case. The applicant stated he was not aware of the request for an adjournment request and would proceed with the hearing[29].

   [29] CB 90.

3. In relation to the Applicant’s submission that he had asked the Tribunal for an adjournment and was told that he did not need one, the Court notes that the Tribunal has the discretion to grant an adjournment, however, as the Court does not have a transcript of the Tribunal hearing, the Court is confined to the Tribunal decision record. According to the Tribunal’s Decision, the Applicant expressly abandoned any request for an adjournment and indicated that he was prepared to proceed.

1. The Applicant cannot now, upon judicial review, claim that it was unreasonable for the Tribunal not to have adjourned.

2. The Court is not satisfied that there is any evidence that the Tribunal acted unreasonably in not adjourning the hearing. Nor is the Court satisfied there is any failure to comply with the procedural fairness obligations under Part 7, Division 4 of the Act.

3. In relation to any allegation that the Applicant was defrauded by a migration agent, what must first be noted is that the Applicant indicated in his Protection Visa application form (which he declared to be true and correct), that he did not have any assistance with completing the Protection Visa application form. All correspondence was directed to the Applicant’s nominated email address.

4. Accepting that the Applicant’s Protection Visa Application form may have been prepared by the alleged migration agent, the Applicant does not state that it was not his intention to apply for a Protection Visa. Rather, the Applicant implies that he did not understand English and did not know what was written in his Protection Visa application form. Furthermore, the fraud cannot be said to have vitiated or stultified the Tribunal’s exercise of jurisdiction: SZFDE v Minister for Immigration & Citizenship [2007] HCA 35. The Applicant had an opportunity to present his claims. The Tribunal assessed those claims. Thus, the Tribunal carried out its statutory task.

5. The alleged conduct of the migration agent does not identify any error in the Tribunal’s decision.

6. No jurisdictional error has been identified here.

Conclusion

1. There is no jurisdictional error established by the Application nor is any jurisdictional error otherwise apparent in the Tribunal’s Decision.

2. The Court is satisfied that the Tribunal adopted an orthodox and correct approach to assessing and determining the Applicant’s application that was free from any jurisdictional error.

3. The Applicant’s Application is, accordingly, dismissed.

4. The Minister sought the sum of $5,000 for costs, which is less than the costs allowed in Part 3, Division 1 of Schedule 1 of the Federal Circuit Court Rules 2001 (Cth) of $7,467. An Order will accordingly be made that the Applicant pay the Minister’s costs fixed in the sum of $5,000.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge C. E.  Kirton QC

Associate: 

Date: 19 May 2020

CORRECTIONS

1. Coversheet, page 1, Header – delete “ESB16” add “EBS16”.

2. Coversheet, page 1, Applicant name – delete “ESB16” add “EBS16”.

3. Footer, delete “ESB16” add “EBS16”.

4. Reasons for Judgment, page 1, Applicant name – delete “ESB16” add “EBS16”.