Efi17 v Minister for Immigration
[2018] FCCA 1693
•27 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EFI17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1693 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5H, 5J, 36, 422B, 424AA, 424A, 425 |
| Cases cited: Minister for Immigration v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 SZLXE v Minister for Immigration [2008] FCA 1312 SZNJQ v Minister for Immigration [2010] FCA 138 |
| Applicant: | EFI17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2923 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Davyskib of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2923 of 2017
| EFI17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 30 August 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 19 June 2018.
The applicant is a citizen of Malaysia, who arrived in Australia on 7 December 2016 as the holder of an Electronic Travel Authority (class UD) (subclass 601) visa.[1]
[1] Court Book (CB) 57
On 16 February 2017 the applicant applied for a protection visa.[2] The applicant claimed to fear harm in Malaysia by reason of his former affiliation with a gang. The applicant claimed that:
a)he had been beaten, blackmailed and threatened because he left the gang;[3]
b)he believed the gang, and in particular the leader, was holding a grudge towards him and that he would “definitely be killed” if he did not agree to rejoin the gang if returned to Malaysia;[4]
c)he had tried to move to some other states in his country, but the gang members found him and continued to blackmail him;[5]
d)the authorities could not protect him because of the gang's strong influence, which was not only limited to Malaysia, but also to the neighbouring countries;[6] and
e)he feared he would be harmed or killed by gang members if returned to Malaysia.[7]
[2] CB 1
[3] CB 32–33
[4] CB 32
[5] CB 34
[6] CB 34–34
[7] CB 34
On 23 March 2017 the delegate refused to grant the applicant a protection visa on the basis that the delegate found the applicant's claims to be vague and lacking in detail, and the claimed fear of harm was found to be of a criminal nature and for no reasons under s.5J(1)(a) of the Migration Act 1958 (Cth) (Migration Act).[8] The delegate was not satisfied that the applicant was a person in respect of whom Australia owed protection obligations under s.36(2)(a) or s.36(2)(aa) of the Migration Act.[9]
[8] CB 58
[9] CB 65
On 8 April 2017 the applicant applied to the Tribunal for review of the delegate's decision,[10] attaching a copy of the delegate's decision.
[10] CB 72–73
On 7 August 2017 the applicant appeared at a hearing before the Tribunal, to present and give evidence in support of his application,[11] with the assistance of a Malay interpreter.
[11] CB 96–97
On 31 August 2017 the Tribunal notified the applicant of its decision, dated 30 August 2017, affirming the delegate's decision.[12]
[12] CB 101–120
Tribunal decision
The Tribunal rejected the applicant's claims due to adverse credibility findings. The Tribunal made the following key findings:
a)the timing of the applicant's departure from Malaysia undermined the credibility of his claims;[13]
b)the applicant's evidence of relocating was highly improbable, unpersuasive and unconvincing;[14]
c)the applicant's voluntary return to Malaysia after travelling to Thailand undermined his claims and it did not accept the applicant was truthful about his reasons for travelling there;[15]
d)the applicant's evidence about telling the gang leader in person that he intended to leave was vague, improbable and lacking in detail;[16]
e)while it accepted it was possible the applicant had been involved in gangs in Malaysia, it did not accept that the applicant decided to leave his gang after a friend was killed in a brawl, and as a result did not accept that the applicant was ever beaten, threatened, harassed or harmed in any way by gangsters;[17] and
f)it did not accept the applicant's physical injuries or scars were inflicted by gangsters as claimed.[18]
[13] At [45]
[14] At [47]–[49]
[15] At [50]–[51]
[16] At [52]
[17] At [53]
[18] At [54]
For those reasons, the Tribunal rejected the applicant's claims and found he was not a refugee as defined by s.5H of the Migration Act.[19] For the same reasons, the Tribunal was not satisfied that the applicant met the complementary protection criterion.[20]
[19] At [55], [57]
[20] At [56], [58]
The current proceedings
These proceedings began with a show cause application filed on 20 September 2017. The applicant continues to rely upon that application. The grounds in it are:
1.Need to defence myself because of the longterm harmfulness, injuries, mental torture, traumatise because of beaten and threatened kill by the gangster.
2.No safety places in Malaysia for me to survive and works because always be followed and threatened kill by the gangsters.
(errors in original)
The application is supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book lodged on 1 November 2017 and the affidavit of Julian D’Arcey Pinder made on 18 June 2018, which annexes a document detailing travel movements of the applicant.
Only the Minister prepared written submissions in advance of today’s hearing.
I invited oral submissions from the applicant. The applicant is concerned both about the outcome before the Tribunal and the Tribunal’s reasoning that led to that outcome. He particularly contests the Tribunal’s reasoning in relation to his travel to Thailand and his travel to Australia. To that extent, and as I pointed out to him, he takes issue with the merits of the Tribunal decision. Those merits are beyond the scope of this proceeding.
It is possible that the applicant’s travel to Thailand had some connection with his gang activities or his fear of gang members. His relatively short delay in coming to Australia after obtaining a visa is not, to my mind, a matter of particular significance. It did feature in the Tribunal’s reasons as one of a number of factors bearing upon the applicant’s credibility.
The conclusions reached by the Tribunal were open to it on the material before it. The Tribunal’s concerns were discussed with the applicant at the Tribunal hearing.
In my view, the process followed by the Tribunal was a fair one.
I agree with the Minister’s submissions in relation to the grounds of review advanced.
Grounds of review
The Tribunal considered the applicant's claims and evidence,[21] and made findings that were reasonably open to it. The Tribunal's conclusion that the applicant was not a credible witness was a finding of fact for the Tribunal to determine.[22]
[21] At [10]–[41]
[22] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [67]
The Tribunal rejected the applicant's claims to have been of adverse interest to a gang on the basis of adverse credibility findings.[23] In particular, the Tribunal did not accept that the applicant left Malaysia because he was of adverse interest to gangsters, including any gangsters in the particular gang referred to by the applicant.[24]
[23] At [44]–[54]
[24] At [53]
The Tribunal held that while it was possible that the applicant had been involved in gangs in Malaysia in the past, the Tribunal did not accept that the applicant decided to leave his gang after his friend was killed in a brawl.[25] The Tribunal did not accept that the applicant had ever been beaten, threatened or otherwise harassed, followed or harmed by the gangsters (including the gang leader) because he left the gang and refused to re-join the gang.[26]
[25] At [53]
[26] At [53]
The Tribunal did not accept that the applicant was or is of any adverse interest to gangsters in Malaysia or to any other persons or groups. On the evidence before it, the Tribunal found that there was not a real chance that the applicant would be persecuted for any reasons if he was to return to Malaysia and was therefore not a refugee within the meaning of s.5H of the Migration Act.[27] Having had regard to its findings of fact, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia owed protection obligations under s.36(2)(aa) of the Migration Act.
[27] At [55]
Procedural fairness
By email dated 19 July 2017, the applicant was invited to attend a hearing before the Tribunal to give evidence and present arguments pursuant to s.425 of the Migration Act.[28] The applicant attended a hearing before the Tribunal with the assistance of a Malay interpreter on 7 August 2017.[29]
[28] CB 82–91
[29] CB 96 – 100
The Tribunal referred to the Minister’s Department’s movement records before it which recorded that the applicant had been granted a subclass 601 visitor visa on 11 November 2016 but did not leave Malaysia until 7 December 2016.[30] The Tribunal proceeded to put the information to the applicant in accordance with s.424AA of the Migration Act and notified the applicant that the delay in leaving Malaysia “would be the reason or part of the reason for affirming the decision”.[31]
[30] At [37]
[31] At [37]
The Tribunal noted:[32]
The applicant confirmed he understood the information and why it was relevant to his case. He asked whether he could come back to the Tribunal on another occasion. When it was put to the applicant that it was not apparent why this was necessary, the applicant did not maintain a request for additional time and instead chose to respond to the information orally at the hearing.
[32] At [38]
In putting the information to the applicant pursuant to s.424AA of the Migration Act:
a)the Tribunal orally gave the applicant clear particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review;[33] and
b)the applicant confirmed that he understood the information and why it was relevant to his case.[34]
[33] At [37]; s.424AA(1)(a)
[34] At [38]; s.424AA(1)(b)(i)
The Tribunal referred to the applicant having “asked whether he could come back to the Tribunal on another occasion”.[35] Insofar as this is taken to be the applicant's request to seek additional time to comment on or respond to the information,[36] the Tribunal put to the applicant that it was not apparent why a further hearing would be necessary in considering whether to exercise its discretion under s.424AA(1)(b)(iv) of the Migration Act.[37] The applicant did not maintain the request for additional time and elected to respond to the information orally at the hearing. In so doing, the applicant responded that the delay between being granted a visitor visa and subsequently leaving Malaysia was owing to him having sought financial assistance from his friend for the money to buy the plane ticket to Australia.[38]
[35] At [38]
[36] Section 424AA(1)(b)(iii)
[37] At [38]
[38] At [38]
In the absence of a transcript of the Tribunal hearing to evidence non-compliance by the Tribunal with s.424A and s.424AA of the Migration Act, the applicant cannot establish a claim that the Tribunal failed to comply with its obligations.[39]
[39] SZNJQ v Minister for Immigration [2010] FCA 138 at [38]; SZLXE v Minister for Immigration [2008] FCA 1312 at [19]
I conclude that the Tribunal complied with its procedural fairness obligations under Division 4 of Part 7 of the Migration Act which is an exhaustive statement of the natural justice hearing rule in relation to the matters with which it deals.[40]
[40] Section 422B of the Migration Act; Minister for Immigration v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [66]
Conclusion
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant inquired about paying by instalments. That is a matter he can take up with the Minister’s Department.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 2 July 2018
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