Edi16 v Minister for Immigration
[2019] FCCA 2416
•3 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDI16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2416 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – whether the Tribunal decision is affected by jurisdictional error |
| Cases cited: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 |
| First Applicant: | EDI16 |
| Second Applicant: | EDJ16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2831 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 3 September 2018 |
| Date of Last Submission: | 29 August 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 3 September 2019 |
REPRESENTATION
| Appearing for the First Applicant: | In person |
| Appearing for the Second Applicant: | In person |
| Counsel for the First Respondent: | Mr Van Der Westhuzen |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Appearing for the Second Respondent: | No appearance |
ORDERS
The Amended Initiating Application filed on 17 May 2018 is dismissed.
The Applicant is to pay the Minister’s costs in the amount of $7,206.
Remove the matter from the list of cases awaiting finalisation.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2831 of 2016
| EDI16 |
First Applicant
EDJ16
Second Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application for judicial review of a decision of the Second Respondent dated 28 November 2016, affirming the decision of a delegate of the First Respondent not to grant the applicants Protection (class XA) visas.
The applicants are husband and wife. The applicants arrived in Australia on a tourist visa on 10 September 2014. They applied for Protection (Class XA) visas on 9 December 2014. The delegate of the First Respondent refused to grant the visas on 9 July 2015.
The second applicant is a member of the family unit and did not make separate claims for protection. Although she was invited to do so during the hearing, she did not make any separate submissions but rather relied on those made by the first applicant (“applicant”).[1]
[1] In the same manner that she had done at the Tribunal hearing.
A reference in these reasons to the submissions of the applicants and the evidence of the applicants is a reference to the submissions made by the first applicant and the evidence presented by the first applicant all of which was relied upon by the second applicant.
Both applicants are citizens of Malaysia with Chinese ethnicity.
The applicants claimed to fear serious harm if they returned to Malaysia on the basis that a Malay gang would harm or kill them because they operated a restaurant that served pork and because they were ethnically Chinese. No other convention-related claims were made.
The applicant appeared before the Tribunal on 17 November 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of a Mandarin interpreter. The applicant provided further information to the Tribunal on 20 November 2016.
The applicants now seek judicial review of the decision of the Tribunal made on 28 November 2016.
In order to succeed, the applicant must establish that the Tribunal’s decision is affected by jurisdictional error.
A decision affected by jurisdictional error is, as a matter of law, no decision at all. A jurisdictional error in the requisite sense of these proceedings can be understood as an error which has led the Tribunal to somehow fail to fulfil its duty and function of reviewing the decision of the delegate.
In the application filed 28 December 2016, the applicant set out three grounds of review, namely:
a)The Second Respondent denied the applicant natural justice or procedural fairness in making the decision;
b)The Second Respondent has ignored relevant consideration in making the decision; and
c)The Second Respondent failed to consider and determine whether the applicant faces a real chance of persecution in Malaysia on the basis of ethnicity. It could give rise to a well-founded fear of persecution for a convention reason.
Even though the applicants had been ordered[2] to provide written submissions to support those grounds they have not done so. At the hearing, the Court invited the applicants to make oral submissions in support of their application which opportunity the applicants accepted.
[2] Pursuant to orders dated 5 July 2017, made by consent, the applicant was to file and serve written submissions 28 days before the hearing.
The Tribunal’s Decision
The Tribunal found the evidence regarding the first applicant’s claims to lack credibility. The first applicant was not found by the Tribunal to be a reliable, credible or truthful witness.
The Tribunal did not accept that the first applicant ever owned or operated a restaurant selling pork in Malaysia.
The Tribunal noted inconsistencies of the applicant in describing the restaurant between what the told the delegate and what he told the Tribunal, and found that such inconsistencies were so significant and of such a degree that they could not be reasonably explained by the period of time since the restaurant was said to be run.
The applicant was found to be inconsistent in recounting the name, operating hours and size of the restaurant and also the task of its only employee.
The Tribunal then formed the conclusion that because the evidence about the restaurant was not accepted, that is because the Tribunal did not accept that the applicant ever ran the restaurant, it followed that he was never targeted by a gang for selling pork dishes.
The Tribunal pointed to other inconsistencies in the applicant’s evidence, including the date of when the restaurant was supposedly closed by the applicant and also the particulars of the threats from the gang he was said to have received.
In respect of the claim that the applicants would be harmed because of their Chinese ethnicity, the Tribunal did not accept the submission that the applicant would be harmed because of his Chinese ethnicity. This was partly based on the Tribunal not accepting the evidence of the applicant claiming he owned a restaurant and the claim that he was targeted by the same gang who supposedly ordered him to close his restaurant. It was partly based on the country information which indicated that ethnic Chinese generally do not experience discrimination or violence on a day-to-day basis.
Furthermore, the Tribunal had regard to the information provided by the applicants on 20 November 2016, the applicant’s conduct in not applying for a protection visa until almost three months after arriving in Australia on a tourist visa, together with the reasons provided by the applicant as to why he did not make the application for a protection visa earlier.
The Tribunal found having considered the applicant’s evidence individually and cumulatively, that the applicant did not have a well-founded fear of persecution for any Convention reason.
The Tribunal did not accept that the complimentary grounds for protection were otherwise made out.
Determination
Ground 1
The applicant’s submissions in respect of this ground was that the Tribunal had from the very beginning pre-judged the matter and that the decision of the Tribunal was the member’s own opinion.
There was no identification of any ‘denial of procedural fairness or natural justice’ by the applicant before the Court. The applicant did not provide any particulars of the alleged ‘denial of procedural fairness or natural justice’.
Instead, the applicant submitted that the Tribunal did not accept the evidence of the applicant as follows:
a)That the applicant owned and operated a restaurant in Malaysia;
b)That the applicant sold pork;
c)That the restaurant was vandalised;
d)That the applicants had been threatened; and
e)That there is racial discrimination in Malaysia.
The Court finds that during the hearing before the Tribunal, the applicants were afforded the opportunity of presenting evidence and arguments in support of their claims.
The Court finds, having reviewed the material in the Court Book, that there is nothing which indicates the Tribunal as having failed to comply with its obligations to provide procedural fairness, which codified within Division 4 of Part 7 of the Act.
As apparent from the matters referred to earlier in these reasons, the Tribunal’s findings were open to it on the material before it and for the reasons it gave. The Tribunal’s reasons disclose a logical chain of reasoning between the established facts and the conclusions drawn by the Tribunal from them.
The applicant’s submissions relating to pre-judgement, are really submissions in respect of bias. However, nothing which was said by the applicant has made out the submission that the Tribunal member’s decision was affected by bias, whether actual or implied.
Having heard the oral submissions, it is clear that the applicants are in fact seeking an impermissible merits review of the Tribunal’s decision[3]. In reality, the applicants’ contentions in relation to this ground do not rise above a strong disagreement with the Tribunal’s reasoning and decision.
[3] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
For reasons explained, the Ground is not made out.
Ground 2
The submissions made by the applicant in support of this ground were in essence no different to the submissions made in respect of Ground 1. Although using slightly different language, the crux of the complaint was that the Tribunal came to its decision based on its own opinion rather than accepting the facts and submissions of the applicant.
The Tribunal considered the applicant’s arguments and evidence before it, and came to the conclusion which was not in the applicant’s favour. It was a decision which was open to it on the evidence before the Tribunal.
This Ground is again, an impermissible merits review argument.
Consequently this Ground is not made out.
Ground 3
The applicant submitted that the Tribunal did not consider the applicant’s safety if they were to return to Malaysia and that he is fearful of returning to Malaysia. He argued that the Tribunal did not consider the applicants’ safety if they were to return to Malaysia.
The Tribunal consider the applicants’ arguments as follows:
a)The Tribunal put to the applicant that it was unaware of reports of Chinese being killed. This was discussed with the applicant and he was advised that he could provide country information to support his claim;[4]
b)The Tribunal noted the limited information provided by the applicant, that the information he provided had not been translated and that he had not made any submissions in respect of his claim;[5]
c)The Tribunal noted the country information about Chinese Malaysians before concluding that generally ethnic Chinese Malaysians did not experience harm or discrimination or violence on a day to day basis;[6]
d)After considering the above, the Tribunal did not accept the applicant’s argument would be killed on the basis of his Chinese ethnicity.
[4] CB 113 at [20]
[5] CB 114 at [30]
[6] CB 114 at [29]
The Tribunal’s findings were open to it on the material before it and for the reasons it gave. The Tribunal did consider the applicant’s claim and found, individually and cumulatively, that the applicant did not have a well-founded fear of persecution for any convention reason.
The Tribunal also found, having not accepted that the applicant ever owned a restaurant that served pork, that the applicant was not the target of any Malay gangs or at risk because of his Chinese ethnicity, that it was not satisfied that there are any substantial grounds for believe that there was a real risk of significant harm on the basis of these claims.
Consequently this Ground is not made out.
Conclusion
The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. Therefore, the application for judicial review is dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Associate:
Date: 3 September 2019
2
0