EFV17 v Minister for Immigration
[2019] FCCA 387
•19 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EFV17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 387 |
| Catchwords: MIGRATION – Protection visa – Malaysian applicant claimed to fear harm if returned to Malaysia because he witnessed a drug deal – no merit in application for review – show cause procedure – review dismissed. |
| Legislation: Federal Circuit Court Rules 2001, r 44.12 Migration Act 1958, s 36(2)(a) |
| Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510 AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Siddique v Minister for Immigration and Border Protection [2014] FCA 1352 Spencer v Commonwealth of Australia (2010) 241 CLR 118 SZTTW v Minister for Immigration and Border Protection [2014] FCA 837 Toura v Minister for Immigration and Border Protection [2017] FCA 1405 |
| Applicant: | EFV17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2028 of 2017 |
| Judgment of: | His Honour Judge J D Wilson QC |
| Hearing date: | 19 February 2019 |
| Date of Last Submission: | 19 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 19 February 2019 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: | Ms J. Kowalewska |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 21 September 2017 is dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $3 737.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1335 of 2016
| BRO16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
Introduction
On 30 May 2018 a registrar of this court ordered this proceeding to go forward under the show cause procedure prescribed by r 44.12 of the Federal Circuit Court Rules. Under that rule the court is possessed of a number of options on the hearing of an application of this sort. If the court is not satisfied that the applicant has raised an arguable case for the relief the applicant claims the court is empowered to dismiss the entire litigation.
Various cases at appellate level have cautioned against the summary dismissal of a proceeding. Those cases have said that an order for the summary dismissal of a proceeding should not be lightly made. Those cases include the High Court’s decision in Spencer v Commonwealth of Australia[1] as well as the Full Court’s decision in AMF15 v Minister for Immigration and Border Protection.[2] I have proceeded with those cases uppermost in mind.
[1] (2010) 241 CLR 118
[2] [2016] FCAFC 68
Two other cases of the Federal Court have said that even if r 44.12 is satisfied the court possesses a residual discretion to not summarily dismiss the proceeding. Those cases are Siddique v Minister for Immigration and Border Protection[3] and SZTTW v Minister for Immigration and Border Protection.[4]
[3] [2014] FCA 1352
[4] [2014] FCA 837
Synopsis
For the reasons that follow in my judgment the applicant failed to make out an arguable case in this proceeding for the relief that he claimed with the consequence that this application for judicial review that he brought by application filed on 21 September 2017 must be dismissed. The applicant is to pay the minister’s costs.
Background
The applicant is a citizen of Malaysia. He arrived in Australia on 4 May 2016 on a visitor visa. He applied for protection on 20 June 2016 on the basis that he feared harm from gang members involved in a drug deal which the applicant witnessed.
On 13 September 2016 the delegate refused to grant the applicant the protection visa that he sought. He applied to the tribunal for a merits review on 4 October 2016. On 6 September 2017 he appeared before the tribunal, assisted by an interpreter, at which time he gave evidence and presented arguments. On 7 September 2017 the tribunal affirmed the delegate’s decision to not grant the applicant the protection visa that he sought.
In his application to this court, filed 21 September 2017, the applicant relied on seven grounds of review that were largely narrative in nature. In the passages below I have addressed the details of those grounds. For present purposes it is sufficient to synthesise his claims for protection in the manner that now follows. His basis for seeking protection appeared in his visa application. In essence, he said he witnessed a drug deal in a night market, following which he escaped and thereafter received calls from unknown persons threatening to kill him if he took legal action. He said he was unable to move freely as he was always followed by one or more persons carrying sharp objects. He said he lived in fear and suffered from anxiety with the consequence that he left Malaysia.
He said he reported the matter on many occasions to the police, who took no action. . He said that if returned to Malaysia he will live in fear and he will not be able to engage in any daily activity. He said he fears he will have psychological problems or will be killed by drug dealers who have already threatened to kill family members. He said Malaysian authorities are unable to protect him because drug syndicates exert a strong influence on police and politicians. He said the Malaysian authorities have refused to investigate his complaints and they have ignored his requests to act on his request for them to take action following the making of threatening telephone calls.
The applicant participated in the tribunal hearing during which he gave evidence and explained in detail the claims that have been encapsulated above. During the hearing, he added that his family had been threatened and his older brother beaten.
In the tribunal
At paragraph 19 of its reasons the tribunal focused on the applicant’s inability to reconcile aspects of his claims to protection. The tribunal said that at the heart of the applicant’s claims was his contention that the drug syndicate wanted to kill him or harm him so as to prevent him from being a witness in any action taken against the drug syndicate in connection with the drug deal he allegedly witnessed.
The tribunal identified the difficulty with that argument. The applicant was invited to respond and he said that he witnessed a big deal. The applicant later identified one of the gang members as being Jaquil. In paragraph 20 the tribunal said the applicant’s explanations were implausible.
In paragraph 21 of its reasons the tribunal said that despite the applicant witnessing the drug deal at night the applicant was able to identify the leader of the gang and that the gang was dealing in methamphetamines. The tribunal said that despite the applicant witnessing the drug deal from 20 metres away, he was able to get into his car, start it and drive away before the gang members became aware of his departure, after which they gave chase.
In paragraph 22 of its reasons the tribunal said that the applicant was most likely fabricating those events and that it was implausible that the applicant was chased to the edge of his village at which point the pursuer stopped and did not chase him thereafter.
In paragraph 24 of its reasons the tribunal gave various reasons for its concern about the reliability of the applicant’s evidence about being beaten.
In paragraph 25 of its reasons the tribunal said that it was not persuaded that the applicant had witnessed a drug deal in the night market, after which he was pursued, threatened and beaten. Instead the tribunal found that the applicant had fabricated his claims and was otherwise not a credible witness.
In paragraph 27 of its reasons the tribunal said it did not accept that the applicant left Malaysia by reason of any fear connected with his claims.
In paragraph 27 of its reasons the tribunal addressed a last-minute claim introduced about generalised violence in Sabah.
Between paragraphs 28 and 29 of its reasons the tribunal discussed country information in Sabah, leading to the conclusion that the security situation in Sabah was generally stable.
In paragraph 30 of its reasons the tribunal referred to the adverse credibility findings in respect of the applicant, as well as the country information, concluding that there was no real chance that the applicant would be harmed on that account.
In paragraph 33 of its reasons the tribunal found that the applicant was not a person in respect of whom Australia owed protection obligations under s 36(2)(a) of the Migration Act.
Between paragraphs 34 and 37 of its reasons the tribunal addressed whether the applicant met the requirements for complementary protection. The tribunal found that the applicant was not entitled to complementary protection. Ultimately the tribunal affirmed the delegate’s decision to not grant the visa.
Before turning to the individual grounds of his application to this court it is relevant to point out the matters that emerge from the evidence given by the applicant before me today. I asked the applicant to tell me in his own words what he said the tribunal did wrong in this case. He said the tribunal did not accept the fact or the truth of his case. He said he did speak the truth but that was not accepted. He said that in reality he was unhappy with the result of the decision of the tribunal. He implored me to give him a chance to remain in Australia for longer.
That was not the relevant question. The tribunal decided upon the merits of his protection visa application and refused it. Only if he could demonstrate that the tribunal’s decision was affected by jurisdictional error could he succeed in his application to this court. For the reasons already given in my view there were no merits to this application.
Let me now go to the grounds.
Ground one
Under this ground the applicant seemed to be putting in issue a question about the validity of his visa application. It seemed to me, and the minister appeared to have proceeded likewise, that the visa application was in fact valid. To the extent that ground one sought to impugn the validity of the visa by reason of the activities of the delegate, the activities of the delegate are not the relevant activities for my purposes. In a judicial review application the activities of the decision-maker who engaged in the merits review are the important matters. So much has been held in Wu v Minister for Immigration and Ethnic Affairs,[5] Yilmaz v Minister for Immigration & Multicultural Affairs[6] and Zubair v Minister for Immigration and Multicultural and Indigenous Affairs.[7]
[5] (1994) 48 FCR 294
[6] (2000) 100 FCR 495
[7] (2004) 139 FCR 344
Ground one was devoid of merit.
Ground two
Under this ground the applicant identified that the respondent was required to observe procedures “by law” and that those procedures were not followed, so he said. The applicant did not identify what procedures were allegedly not followed. It must be remembered that in his evidence before me today his complaint related to the tribunal not accepting his version of the evidence. He otherwise gave no particulars of his complaint under ground two.
In this case the tribunal invited the applicant to attend a hearing to give evidence and present arguments. The applicant has not identified anything that was defective in the tribunal’s conduct of the hearing. I did not detect anything out of the ordinary in the tribunal’s conduct of the hearing. To the contrary, the findings that the tribunal made about the applicant’s overall unreliability seemed to be appropriate and open.
Ground two was without merit.
Ground three
Under this ground the applicant said that the decision of the tribunal involved an error of law. He did not give any details of the alleged error. Ordinarily where an applicant complains that the decision below is affected by jurisdictional error the applicant complains that the tribunal –
a)identified a wrong issue,
b)asked itself a wrong question,
c)ignored relevant material,
d)relied on irrelevant material, or
e)in some cases, made an erroneous finding or reached an erroneous conclusion.
The lead authorities on that point include Craig v State of South Australia[8] as well as the Minister for Immigration and Multicultural Affairs v Yusuf.[9] Under this ground the applicant made no attempt to characterise whatever he said the tribunal did wrong into one of those categories as identified in Craig or Yusuf. From his application I was unable to detect the gravamen of his complaint under ground three. It seemed to me that the tribunal properly identified the matters that it was required to consider for the purposes of assessing a convention basis for protection or for complementary protection.
[8] (1995) 184 CLR 163
[9] (2001) 206 CLR 323
In my view ground three was devoid of merit.
Ground four
Under this ground the applicant complained that the delegate and the tribunal did not explicitly inquire whether the applicant specifically claimed complementary protection. It must be pointed out that it is up to an applicant to provide his or her evidence in sufficient detail as to enable the decision-maker to establish the relevant facts, as was held in the Minister for Immigration and Multicultural Affairs v Lay Lat.[10] The minister is not required to make out the applicant’s case for him, as was held in Abebe v Commonwealth of Australia[11] nor is it up to the tribunal to make out the applicant’s case for him, as was held in the Minister for Immigration and Citizenship v Le[12] as well as in Toura v Minister for Immigration and Border Protection.[13]
[10] (2006) 151 FCR 214
[11] (1999) 197 CLR 510
[12] (2007) 164 FCR 151
[13] [2017] FCA 1405
The onus is on the applicant to establish the relevant factual foundation of his application, as was held in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs.[14] As the High Court held in the Minister for Immigration and Citizenship v SZGUR[15] the applicant has the onus of establishing jurisdictional error.
[14] [2005] FCAFC 117
[15] (2011) 241 CLR 594
To the extent that the applicant sought to enliven the activities of the delegate, it has already been pointed out that I am not concerned with the activities of the delegate. To the extent that under ground four the applicant complained about findings in respect of complementary protection, as has been identified above, the tribunal did in fact address the applicant’s entitlement to complementary protection. It did so between paragraphs 34 and 37 of its reasons, the details of which appeared to me unexceptional.
In my view ground four was without merit.
Ground five
This ground was not a proper ground of review but instead appeared to be a prayer for relief.
Ground five was devoid of merit.
Ground six
Ground six was not a proper ground of review.
Ground six was devoid of merit.
Ground seven
Under this ground the applicant implored me to apply principles of natural justice. As has been pointed out many times, on the hearing of a judicial review application I am not permitted to embark upon a merits review. It has been said many times at the highest level that judicial review should not be used for re-evaluating findings of fact in a case. Those cases include Chan Yee Kimv Minister for Immigration and Ethnic Affairs,[16] Attorney-General (NSW) v Quin,[17] Australian Broadcasting Tribunal v Bond,[18] Minister for Immigration and Ethnic Affairs v Wu Shan Liang[19] and Guo v Minister for Immigration and Ethnic Affairs.[20] The applicant did not identify in what respect principles of natural justice may have been infringed in this case. I did not detect the basis of any impropriety by the tribunal.
[16] (1989) 169 CLR 379
[17] (1990) 170 CLR 1
[18] (1990) 170 CLR 321
[19] (1996) 185 CLR 259
[20] (1996) 64 FCR 151
Ground seven was devoid of merit.
Conclusion
Having regard to the foregoing, it seemed to me that no arguable case was raised in this proceeding. In those circumstances, a basis existed for the minister’s application under r 44.12 of the rules to summarily dismiss this case. Accordingly it became relevant to consider whether, in pursuance of the residual discretion that I possess, I should exercise my discretion by not summarily dismissing this proceeding. In my view there was no basis for exercising the discretion in that manner. To the contrary, the decision of the tribunal was correct and no basis for impugning it was shown. This is the very sort of case appropriate for the application of the show cause procedure under r 44.12. In my view this proceeding should be dismissed and I make an order to that effect with costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of his Honour Judge J D Wilson QC
Date: 20 February 2019
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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