FEDERAL COURT OF AUSTRALIA
EBT17 v Minister for Home Affairs [2019] FCA 200
Appeal from: Application for leave to appeal: EBT17 v Minister for Immigration & Anor [2018] FCCA 1666 File number(s): NSD 1205 of 2018 Judge(s): BURLEY J Date of judgment: 22 February 2019 Catchwords: MIGRATION – refusal of a protection visa application – whether there was a failure to give reasons on the part of the Tribunal – application for leave to appeal from Federal Circuit Court review of Tribunal’s decision – application dismissed Legislation: Federal Court of Australia Act 1976 (Cth), s 24(1A)
Migration Act 1958 (Cth), s 36
Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc. [1991] FCA 844; (1991) 33 FCR 397
EBT17 v Minister for Immigration & Anor [2018] FCCA 1666
MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585
Date of hearing: 20 December 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 17 Counsel for the Applicant: Mr G Foster Solicitor for the Applicant: Sentil Solicitor & Barrister Solicitor for the First Respondent: Mills Oakley Solicitor for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 1205 of 2018 BETWEEN: EBT17
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
22 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed, with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BURLEY J:
1. INTRODUCTION
The applicant is a male citizen of Malaysia of Tamil ethnicity and an adherent of the Hindu religion. He arrived in Australia on 22 September 2016 on a Visitor visa, and on 8 November 2016 lodged an application for a protection visa pursuant to s 36 of the Migration Act 1958 (Cth). In his application he claimed to fear harm on the basis of a number of matters, including his Tamil ethnicity, his Hindu religion, his support for “HINDRAF”, or “Hindu Rights Action Force” (a coalition of non-governmental organisations committed to the preservation of Hindu rights and heritage in Malaysia) and the consequences that flowed from his participation in a Bersih rally in 2016.
A delegate of the Minister for Home Affairs considered the application and declined to grant the visa. The applicant applied to the Administrative Appeals Tribunal for a review, and on 15 August 2017 the Tribunal affirmed the decision of the delegate. The applicant then sought judicial review of the decision of the Tribunal in the Federal Circuit Court of Australia (FCCA), and on 25 June 2018 that court conducted a show cause hearing pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 and dismissed the application; EBT17 v Minister for Immigration & Anor [2018] FCCA 1666 (FCCA decision). That decision…
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- Case
- [2019] FCA 200
- Decision Date
CaseChat Overview and Summary
The court examined the applicant’s proposed grounds of appeal, particularly focusing on the Tribunal’s credibility findings. The Tribunal had found that the applicant was not generally credible, and the applicant argued that the primary judge misunderstood the Tribunal's reasons. However, the court found that the Tribunal had clearly outlined several adverse credibility findings, including the applicant’s changing of evidence during the hearing and inconsistencies between the evidence and the visa application form. The court concluded that the primary judge did not misunderstand the Tribunal's reasons, as the Tribunal had explicitly stated that it was not satisfied with the applicant's credibility based on multiple grounds.
In light of the above, the court found that the proposed grounds of appeal were not sufficiently arguable to warrant reconsideration. The applicant had not demonstrated that substantial injustice would result from the Tribunal’s decision. The court dismissed the application for leave to appeal.
The court ordered that the application for leave to appeal be dismissed, with costs. The costs were to be paid in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The application for leave to appeal be dismissed, with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In the present case there is no dispute that substantial injustice would result if the decision below is attended by sufficient doubt to warrant it being reconsidered on appeal. The application is to be determined at the point of whether or not the proposed grounds of appeal are sufficiently arguable to warrant reconsideration. 3. CONSIDERATION In the final form of proposed ground 4, the applicant draws attention to the Tribunal’s credibility findings. The relevant reasoning is at [25] of the Tribunal’s decision:25.For all the reasons set out herein, the Tribunal was not satisfied the applicant was generally credible. That being said, I accept the applicant drove a bus load of persons from his home region to Kuala Lumpur (approximately 1 ½ hours) to attend the August 2015 Bersih rally. I accept that he did this as he was paid (and only for that reason). I accept that nothing happened to the applicant at the peaceful August 2015 Berish [sic] rally. I accept that on his return to his home region (Perak), he was questioned (for a brief period) in mid-September 2015. I do not accept he was mistreated when detained. The applicant submits that the primary judge, at [50] of the FCCA decision, committed jurisdictional error by misunderstanding the decision of the Tribunal in holding that the reference to “the reasons set out therein” is to all of the Tribunal’s adverse credibility findings and reasons, when in fact the Tribunal was only referring to the applicant’s ethnicity, his religion and his political opinion. In [50] the learned primary judge says (footnotes omitted):50.The Tribunal concluded that “for the reasons set out herein” the applicant was “not generally credible” and found that: the applicant drove people to the Bersih rally as claimed but he only did that because he was paid; nothing happened to him at the peaceful August 2015 rally; and he was questioned on his return to Perak but not that he was mistreated as claimed. Despite the applicant’s contentions, the reference to “the reasons set out herein” is clearly a reference to all of the Tribunal’s adverse credibility findings and reasons, which were based on its consideration of the applicant’s evidence and included: a)that the applicant had claimed for the first time at the hearing that he was paid to drive people to the Bersih rally but when the Tribunal put to him that it may consider he only did this to get paid, he changed his evidence to say he did not get paid;b)independent country information that indicated the 2015 rallies in which the applicant claimed he participated were generally peaceful; and c)the applicant’s written claims indicated that he had lived in Malaysia without problems between September 2015 and September 2016 but he raised for the first time at the hearing that he was detained in November 2015 and the Tribunal found the applicant would not have left such a significant claim out of his PVA if it was true. The applicant contends that the primary judge misconstrued the reasons of the Tribunal, and thereby “misunderstood the evidence in the Tribunal and of the appeal question to be answered”. I respectfully disagree. In the paragraphs prior to [25] of the Tribunal’s reasons, it is plain that a number of adverse credit findings are made in relation to the applicant. These include findings that he changed his version of events during the course of the hearing and that there were inconsistencies between the evidence given at the hearing and the statements that he had made in his visa application form. After [25], the Tribunal sets out further matters that cause it to doubt the credibility of the applicant. At [28], [29] of its reasons the Tribunal says:28.When then asked why he had not mentioned these claims previously, he repeated this was all the fault of the alleged person who completed the PV form. As put to the applicant at hearing, the Tribunal may not be (and now is not) satisfied such allegedly important claims would have been left out of his PV form if true. I therefore reject as false the claims that the applicant was harmed in October/November 2015 for the reasons he claimed, and I reject as false that he was harmed at any other time prior to departing Malaysia. I remain satisfied the applicant was able to live without problem from mid-September 2015 until he departed Malaysia in September 2016.29.Based on the findings made, the Tribunal is not satisfied the applicant has a real chance of suffering serious harm in Malaysia, for any reason discussed under the above sub-heading.