EGR19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 839
Federal Circuit and Family Court of Australia
(DIVISION 2)
EGR19 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 839
File number(s): ADG 408 of 2019 Judgment of: JUDGE BROWN Date of judgment: 14 October 2022 Catchwords: MIGRATION – Application for judicial review – decision of the Administrative Appeals Tribunal – application for protection visa – citizen of Malaysia – where applicant participated in political demonstrations in Malaysia – whether applicant was afforded procedural fairness – refusal of late application for adjournment – whether AAT sufficiently considered the applicants evidence – no jurisdictional error established – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36(2), 65, 425, 425A, 474, 476(1)
Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021
Migration Regulations 1994 Sch 2
Cases cited: Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225
Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 5 October 2022 Place: Adelaide Applicant: Appeared in person with the assistance of an interpreter Counsel for the First Respondent: Ms Scanlon Solicitor for the First Respondent: The Australian Government Solicitor Solicitor for the Second Respondent: Submitting notice filed save as to costs ORDERS
ADG 408 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EGR19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE BROWN
DATE OF ORDER:
14 october 2022
THE COURT ORDERS THAT:
1.The application filed 30 October 2019 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of FIVE THOUSAND DOLLARS (5,000.00).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These reasons for judgment relate to an application for judicial review of a decision of the Administrative Appeals Tribunal,[1] made on 18 October 2019, not to grant the applicant a Protection Visa,[2] pursuant to the provisions of the Migration Act 1958 (Cth).[3]
[1] Hereinafter referred to as “the AAT” or “the Tribunal”.
[2] Hereinafter referred to as “the visa” or “the protection visa”.
[3] Hereinafter referred to as “the Act”.
The applicant is a citizen of Malaysia, where he was born on 30 June 1988. He arrived in Australia, by commercial aeroplane, on 23 May 2016, pursuant to a validly issued Visitor’s Visa.
He applied for the Protection Visa on 17 August 2016. In the form, which he completed in support of his application, the applicant claimed to be at risk of imprisonment, in Malaysia, because of his political opinions, which he had ventilated in public demonstrations held in Malaysia.[4] He further claimed that the Malaysian authorities would be either unable or disinclined to protect him, given the current government in the country, which regarded him as an opposition hard core.[5]
[4] See Court Book at page 39.
[5] See Court Book at page 41.
On 21 February 2017, a Delegate of the Minister of Immigration & Border Protection[6] refused the application for the relevant visa. The Ministerial Delegate was not satisfied that the applicant faced a real chance of persecution, as defined by the relevant provisions of the Act. The applicable provisions will be detailed in due course.
[6] Hereinafter referred to as “the Ministerial Delegate” or “Delegate”.
The Delegate reached this conclusion because he considered that the applicant had not outlined his claims for protection in sufficient detail, particularly in the context of evidence available to the Delegate regarding the current political situation in Malaysia, which did not indicate that a person, with a political profile of the type outlined by the applicant, was likely to suffer significant harm, at the agency of the Malaysian Government because of his political opinions.
In all these circumstances, the Ministerial Delegate found that the applicant did not meet the legislatively prescribed criteria relevant to enable him to be classified as a refugee and therefore the Delegate had no authority to grant the applicant the relevant visa.
Given this decision, on 8 March 2017, the applicant applied to the Tribunal for a review of the decision. The AAT acknowledged receipt of this application on 17 March 2017. At this stage, the Tribunal invited the applicant to provide it with any material or written arguments, which he wished it to consider, in support of his application as soon as possible.[7]
[7] See Court Book at page 76.
On 30 September 2019, the AAT wrote to the applicant advising him that it was unable to make a decision favourable to him on the information, which it currently held. In these circumstances, he was provided with a formal statutory invitation, in the following terms:
·He was invited to appear before the Tribunal, in person, in order to give evidence and present arguments, relating to the issues arising in his case;
·The relevant hearing was scheduled for 15 October 2019. He was advised further that this date would change only if a very good reason was provided to justify a change.
On 2 October 2019, over three years after he had applied for the relevant visa, the applicant wrote to the AAT in the following terms:
Thanks for your email. I hereby request you that, I have to get further supporting documents from my home country. Therefore please extend my hearing date. I shall be highly thankful to you.[8]
[8] See Court Book at page 81.
On 3 October 2019, the Tribunal declined the request to postpone the hearing. In these circumstances, the relevant Tribunal member responded as follows:
The member would like to conduct the hearing and determine, why the evidence was not produced earlier, what documents you wish to produce and how long it will take to obtain the evidence. If required, the member will provide further time after the hearing to enable you to obtain evidence.[9]
[9] See Court Book at page 82.
In this context, the applicant was forwarded what was described as a hearing response form, which he was requested to return to the Tribunal as soon as possible. The document was returned but had not been completed by the applicant – it was effectively blank. Nonetheless, the Tribunal member assumed it was a request for adjournment but, given the lack of any further basis for such an adjournment, declined the application and indicated that the hearing would proceed as currently scheduled.
Thereafter, on 10 October 2019, the applicant completed a further response to hearing invitation form, in which indicated that he would require a Bahasa Malaysian interpreter and he would attend the hearing in question in person, which he duly did. He did not provide any further information regarding the evidence, which he had earlier indicated he wished to obtain from his home country.
In a formal sense, it does not seem that the applicant has raised any issues regarding the procedural fairness of the hearing on 15 October 2019, other than one of his current grounds for review alludes to the assertion that he was not given sufficient time to provide documents to the Tribunal.
Accordingly, on 15 October 2019, the relevant hearing proceeded before the Tribunal. The applicant was provided with the assistance of a Malay interpreter. I have not been provided with a transcript of the hearing.
However, the hearing record indicates that the applicant handed the Tribunal two colour photographs, which apparently depict the applicant, with others, in the context of a political demonstration, whilst wearing t-shirts bearing political slogans.
As will be outlined in greater detail shortly, it is a contention of the applicant that these photographs were not given proper weight by the Tribunal. It has not been suggested that the applicant sought to provide other document, which were not considered.
LEGAL CONSIDERATION RELEVANT TO THE GRANT OF PROTECTION VISAS
The AAT summarised the legislative criteria for the grant of a protection visa, pursuant to the Act. In general terms, the following matters are relevant to any decision in respect of a migration decision concerning an application for protection.
Pursuant to section 65 of the Act, the Minister is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.
In respect of an application for a protection visa, the criteria required to be satisfied are set out in the Act in Schedule 2 to the Migration Regulations 1994. In general terms, any applicant is required to satisfy one of the primary criteria contained in either section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and is therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
[I]n the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·be subject to a real chance of being persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
The expression serious harm is defined in section 5J(5) as follows:
·a threat to the person's life or liberty;
·significant physical harassment of the person;
·significant physical ill-treatment of the person;
·significant economic hardship that threatens the person's capacity to subsist;
·denial of access to basic services, where the denial threatens the person's capacity to subsist;
·denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
These sections reflect the definition appearing in the Refugees Convention,[10] to which Australia is a signatory and which provides that a refugee is a person who:
…owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
[10] Hereinafter referred to as “the Convention”.
The High Court has established that this definition has both subjective and objective elements. As a consequence, the question to be asked by the relevant decision-maker, regarding an application for protection being firstly does the applicant concerned subjectively fear persecution and secondly is that fear objectively well-founded.
In assessing the objective aspects, the decision-maker concerned must determine what is likely to happen to the applicant concerned if he or she is returned to the country in question. Necessarily such considerations are predictive in nature. They are most usually encapsulated under the rubric of the real chance test.[11]
[11] See S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 498–499 [72]–[73].
Accordingly, in determining whether there is such a real chance of a protection visa applicant suffering serious harm, in his or her country of origin, a decision maker is entitled to refer to information germane to the country of origin of the applicant concerned, regarding the situation likely to confront either the actual applicant concerned or others who bear his or her attributes, if returned to that country.
Essentially, the question to be considered is the likelihood that the claimant in question will face persecution if returned to his/her country of origin. Such an inquiry is likely to involve a survey of information of the situation likely to confront a person, with the attributes of the claimant concerned, in the applicable country. Such objective information is invariably referred to as country information.
Pursuant to section 36(2)(aa) of the Act, a person is entitled to a protection visa, if there are substantial grounds for believing that, if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.
This is known as the complementary protection criterion. It codifies Australia’s international treaty obligations not to subject a person to the risk of non-refoulement – that is the risk of suffering significant harm if returned to a particular country.
Subsection 36(2A) of the Act defines significant harm. It includes the relevant applicant for protection suffering all or any of the following circumstances:
·being arbitrarily deprived of his or her life; or
·being subject to the death penalty; or
·being subject to torture; or
·being subjected to cruel or inhumane treatment or punishment; or
·being subject to degrading treatment or punishment.
THE HEARING BEFORE THE AAT
The AAT had before it the applicant’s written application for protection. In response to two pro-forma questions on that application, namely whether the applicant claimed to have experienced harm in Malaysia or to be of the view that he would be harmed or mistreated, if he returned to that country, the applicant had indicated in each case the answer no.
In these circumstances, the Tribunal summarised the applicant’s written claims as follows:
•He participated in anti-government protests because the Malaysian economy worsened and the pressure of living increased.
•He claims the government ordered to have him and others arrested and imprisoned.
•He did not experience harm in Malaysia (Q.91).
•He does not think he will be harmed or mistreated if he returns to Malaysia (Q.94).[12]
[12] See Court Book at page 99. The question numbers are references to the pro forma application for protection.
It was in this context, that the Tribunal questioned the applicant in an attempt to elicit from him any further salient details to support his claim that he had a well-founded fear of persecution, in Malaysia, because of his political views. His answers to questions 91 & 94 not being congruent with his claim for protection.
In this context, the applicant’s claims can be summarised as follows:
·In 2011 and afterwards, he had taken part in five anti-government demonstrations protesting about electoral corruption. This demonstration had precipitated a violent police response and a number of arrests. The applicant asserted that he had not come to the attention of the police, during the demonstration, but had carried banners and shouted during it.
·In January 2013, he had taken part in a further demonstration in Kuala Lumpur, which involved him carrying banners and shouting slogans against corruption. In this context, he provided a photograph of himself, with other protesters, wearing yellow protest t-shirts – yellow being the colour associated with the political party of the opposition.
·In 2013 he had taken part in a further demonstration protesting against the manipulation of the Malaysian election, when Anwar Ibrahim’s party had been denied its proper electoral mandate.
·The applicant claimed to be an ordinary member of Mr Ibrahim’s party.
·In 2014, he had taken part in a further demonstration in his home town.
The applicant confirmed his early indication that he personally had never experienced any harm in Malaysia or come to the attention of police because of his involvement in any of these demonstrations. He confirmed that he had never been arrested or detained.
However, when questioned about his indication that he did not think that he would be harmed or mistreated, if he returned to Malaysia, the applicant indicated that he had accidently ticked the wrong box on the claim form. When questioned about this inconsistency, he indicated that he believed that the police were intending to arrest any individual, who had taken part in the 2011 demonstrations, which necessarily included him.
In this context, the Tribunal indicated to the applicant that it appeared inconsistent that he would be fearful of the Malaysian authorities, as a consequence of his involvement in the 2011 demonstration, yet had apparently continued to take part in subsequent demonstrations, without any apparent problems.
More significantly, the Tribunal raised the content of country information available to it, which indicated that, since the applicant had left Malaysia, approximately 3 years earlier, there had been a number of positive developments in the political landscape in Malaysia, particularly that the party with which he had been associated was now in coalition government.
In response to this proposition, the Tribunal recorded the applicant’s response as follows:
The applicant said he agreed with the Tribunal’s observations but he still was worried about his safety. The Tribunal asked the applicant if he could explain on what basis he held such a fear of harm if he was to return. The applicant said that it was ‘just a feeling’. He conceded that he did not have any evidence to support this feeling. He said he does not want to return to Malaysia for two reasons: firstly, he fears he may be arrested because of his involvement in the 2011 demonstration and secondly, because he wants continue to work in Australia and send money back home. After further questioning he conceded that the main reason he wanted to stay in Australia was to work and support his family who are not very wealthy.[13]
[13] See Court Book at page 100 at [27].
In the context of the applicant’s evidence to it, including the answers provided by him to it, the Tribunal made the following findings, in respect of the issue of whether the applicant did or did not have a well-founded fear of persecution, if returned to Malaysia, namely:
·It was accepted that the applicant was an ordinary member of the People’s Justice Party.
·It was accepted that the applicant disapproved of the activities of the former Malaysian Prime Minister, between 2011 and 2014, and took part in 5 anti-government demonstrations directed towards protesting against corruption, electoral fraud and economic mismanagement of his government.
·It was accepted that the demonstrations in July 2011 had involved police violence and the arrest of approximately 1,500 demonstrators.
·The Tribunal found that the applicant did not come to the attention of the authorities in any of these demonstrations.
·The applicant had taken part in demonstrations after 2011 without any repercussions and, as such, it was unlikely that he was a person of interest to the Malaysian authorities because of his political activities.
·The applicant was not a formal organiser of any protest activities in Malaysia and his involvement in demonstrations was limited to holding banners and shouting anti-government slogans.
·The applicant had never been arrested and had never come to the attention of the authorities.
·Given that the applicant had been freely able to depart Malaysia on valid travel documents to come to Australia, it was unlikely he was of interest to the Malaysian authorities.
·Since the applicant had arrived in Australia the government of Malaysia had changed significantly and it included members of the party with which the applicant had been associated.
In these circumstances, the Tribunal made the following formal finding:
In conclusion, the Tribunal has had regard to the country information and applicant’s profile and is not satisfied that there is a real chance that the applicant will face serious harm if he returns to Malaysia in the reasonably foreseeable future because he is a member of the People’s Justice Party who took part in the Bersih 2 protests in July 2011, and subsequent anti-government demonstrations in 2013 and 2014. The Tribunal finds that the applicant’s fear of persecution in Malaysia because of his actual or imputed political opinion is not well-founded.[14]
[14] See Court Book at page 103 [38].
It also found that the applicant had not met any of the criteria relative to him suffering significant harm, pursuant to the complimentary protection grounds contained in section 36(2)(aa) of the Act. In all these circumstances, the Tribunal affirmed the decision of the Ministerial Delegate, not to grant the applicant a Protection Visa.
THE GROUNDS FOR JUDICIAL REVIEW
The applicant has prepared his own grounds of review. Regrettably, the document contained on the court file was incomplete, not containing the page of the pro forma document which indicated the orders sought by the applicant and the grounds on which those proposed orders were sought. I suspect that this was a result of an error in it being photocopied. However, I was able to receive a correct copy of the application, which the applicant provided and counsel for the Minister received, without objection.
The applicant seeks an order quashing the decision of the AAT and the remission of the matter back to the Tribunal for reconsideration. The grounds of the application are as follows:
•I have participated in anti-government protests because the Malaysia economy worsened and the pressure of living increased. AAT made jurisdictional error by not considering harm to me when I will return back to my home country.
•AAT made jurisdictional error by not giving me enough time to providing further supporting documents for my application.
•AAT made jurisdictional error by not consideration my evidence of photographs while I was doing the protest.
•AAT made jurisdictional error by not considering the harm which I am going to face while I will return back to my home country.[15]
[15] See Application – Migration filed by the Applicant on 30 October 2019.
The applicant has provided an affidavit in support of his application. However, this does not take the matter further as it consists largely of annexures in the form of the decision record itself and a copy of his passport.
Given the date of the decision before the AAT was October 2019, it is apparent that these proceedings have been on foot for a significant period of time. In late-2019, the applicant was given leave to amend his application and file any further evidence. He did not avail himself of this opportunity.
The matter returned to court, on 19 August 2022, when Registrar Carney fixed it for hearing before me on 5 October 2022. On this occasion, the applicant was given further leave to amend his application and provide further submissions. Once again, he has not availed himself of this opportunity.
LEGAL CONSIDERATIONS RELATING TO JUDICIAL REVIEW OF MIGRATION DECISIONS
Pursuant to section 474 of the Act, a decision of an administrative nature, relating to the refusal to grant a visa under the Act, is classified as a privative clause decision. As such, it cannot be challenged in any court. The current decision, arising in this case, is a privative clause decision.
However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by administrative decision-makers, which are affected by jurisdictional error or have been made in bad faith.[16]
[16] See Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
Pursuant to section 476(1) of the Act, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court under paragraph 75(v) of the Constitution. This provision of the Constitution confers original jurisdiction on the High Court in proceedings in which a prerogative writ is sought against an officer of the Commonwealth.
Accordingly, the court has the authority to grant the relief sought by the applicant by way of writs of certiorari and mandamus to quash the relevant Tribunal decision and require the re-hearing of the review but only in the event an error of jurisdiction is established.
In this context, it is important to emphasise that, in undertaking judicial review, this court is unable to examine the merits of the relevant decision under review or substitute its own findings of fact for those of the original decision-maker. As such, the court must be vigilant to avoid inadvertently transforming a process of judicial review into a re-hearing on the merits.
In general terms, an administrative decision maker exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[17]
[17] See Craig v South Australia (1995) 184 CLR 163.
The classic description of an error, which goes to the jurisdiction of an administrative body, was described in the following terms by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf:[18]
What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.[19]
[18] See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323.
[19] See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82].
In Minister for Immigration & Citizenship v Li (“Li”)[20] the plurality of the High Court (Hayne, Kiefel & Bell JJ) determined that a decision which lacked an evident and intelligible justification was liable to be characterised as an unreasonable one and therefore one which did not involve the proper exercise of the jurisdiction conferred upon the relevant decision-maker. As such, decisions lacking such an intelligible justification are also liable to be vitiated on the basis of jurisdictional error.
[20] See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75]–[76].
Following on from Li, in Minister for Immigration & Border Protection v Singh,[21] the Full Court identified two distinct areas in which a tribunal may fail to discharge the jurisdiction conferred upon it by acting in a manner which is legally unreasonable.
[21] See Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437.
Firstly, such a tribunal discharges its reasoning functions in a way which is unreasonable in the sense that it is illogical or otherwise lacking in intelligibility. This refers to the process of reasoning, utilised by the relevant decision-maker concerned, in reaching a decision. It is focussed on process, including the application of any relevant statutory criteria to such a decision.
Secondly, the outcome of the proceedings is coloured by some species of caprice or arbitrariness, which renders the decision legally unreasonable, although the applicable jurisdictional questions have been addressed by the decision-maker in question. This second area is outcome focussed.[22]
[22] See Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
Essentially, in conducting its supervisory jurisdiction over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all as it is outside the range of possible outcomes which are defensible in respect of both the facts and the law.
It is also clear, from relevant Federal Court authority, that the level of illogicality or unreasonableness necessary to found jurisdictional error must be “extreme” not merely a situation where the minds of potential decision makers (and indeed a court on judicial review) might differ as to the outcome of the issue in question.[23] There must be no doubt that the decision sought to be vitiated is, on its face, axiomatically unreasonable.
[23] See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148].
In order to be successful in their application for review, it will be necessary for the applicant to demonstrate an error of jurisdiction arising in the decision of the AAT. This court is not able to substitute its own discretion for that of the Tribunal or embark upon its own process of merits reviewing, which involves it making findings of fact in substitution for those of the Tribunal.
In Minister for Immigration & Ethnic Affairs vWu Shan Liang[24] the High Court warned that a court, such as this one, called upon to review a decision regarding refugee status:
Must beware of turning a review of the decisions of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
[24] Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259 at 272.
As such, this court is required to give the reasons of the Tribunal a beneficial construction, which does not involve a degree of over-zealous scrutiny, which searches out for error.
DISCUSSIONS
The first and fourth grounds of the application for judicial review is a simple assertion that the Tribunal fell into jurisdictional error by not considering the level of harm, which the applicant might sustain, if he returned to Malaysia because of his participation in anti-government protests.
In my view, a fair reading of the Tribunal’s decision is that it did indeed give a proper level of consideration to the real chance that the applicant would come to some level of significant harm, if returned to that country, which was the jurisdictional requirement imposed upon it. In this context, it concluded that given his lack of political profile, when coupled with the change of government there, it found that there were no such prospects.
In my view, the Tribunal’s reasons are comprehensive, logical and considered. In all these circumstances, the bare assertion of jurisdictional error is not sufficient to vitiate the Tribunal’s decision. This court, in conducting it supervisory review function, is not able to conduct a fresh merits review of the case and substitute its own findings of fact for those of the Tribunal.
In ground 2, the applicant seems to assert that he was subjected to a degree of procedural unfairness, of such extremity, that it would be legally unreasonable for the Tribunal’s decision to stand. In particular, he asserts that he was not given sufficient time to provide the material, the nature of which is unspecified, to make out his claim for protection. In my view, this assertion must be viewed in the overall procedural history of the matter.
The applicant made his claim for protection in August of 2016, after having been in Australia for approximately 3 months. His review to the AAT was made in early-March 2017. Shortly after this date, the applicant was invited to provide to the Tribunal any material or written arguments, which he wished to supply in support of his visa application.
It was only when a date had been fixed for the actual hearing, in October of 2019, that the applicant indicated he needed more time to obtain supporting documentation from his home country. His application for adjournment was promptly declined, given the lack of information which it contained. However, the application was not dismissed out of hand.
Rather, the Tribunal, in its correspondence of 3 October 2019, did give the applicant the opportunity to provide more information about the nature of the evidence to which he was seeking access and how long it would take to be obtained. The applicant, by returning the blank form, by necessary implication, declined the invitation to provide the information requested.
Accordingly, in my view, the applicant was properly invited to appear before the Tribunal and provide evidence and submissions as he saw fit in accordance with sections 425 and 425A of the Act. In my assessment there was no caprice or arbitrariness in how the Tribunal approached the request for deferment in the face of a request for more time to source additional unspecified documents, which still have not been delineated. As such, the process leading up to the hearing cannot be described as being procedurally unfair.
In this context, the applicant was able to hand up the two photographs, on which he relied, to found his submission that he had been involved in some of the relevant protests. These were duly considered and, in my view appropriate weight was given to them in the context of what happened to the applicant afterwards and equally significantly in the context of what had occurred politically in Malaysia. These are issues of fact, which fall solely for the consideration of the Tribunal, not this court.
The Tribunal did not dispute that that the applicant had taken part in political demonstrations, as illustrated by the photographs. Its finding that the applicant was not owed protective obligations by Australia, was based on other findings relating to his lack of political profile, the changed political situation in Malaysia and his concession that he wished to remain in Australia for economic reasons.
It is still unclear the nature of the additional information which the applicant wished to put before the Tribunal, which was the basis of his refused adjournment application. No details have been provided as to why he elected not to respond to the Tribunal’s correspondence of 3 October 2019, as to why the information had not been provided earlier, given the original application for the visa had been made some years earlier.
In these circumstances, I do not consider that the Tribunal’s refusal to grant the applicant an adjournment can be considered a breach of fairness sufficient to impugn the jurisdiction of the Tribunal and render its decision void on the grounds of legal unreasonableness.
Finally, the third ground asserts that the Tribunal did not consider the photographs tendered by the applicant to it. The reasons of the Tribunal indicate that it did indeed consider the photographs as it made reference to them.
However, as indicated above, it determined the applicant’s claim for protection on other bases, which related to his lack of political profile in Malaysia as a dissident and the change of political circumstances in that country.
For these reasons, the application must be dismissed. The first respondent seeks that the applicant pay the first respondent’s costs of the proceedings. The amount allowable pursuant to the relevant court scale set by the Federal Circuit Court of Australia (Division 2) (General Federal Law) Rules 2021 is $7,853.00. This was not a complicated matter, given the un-particularised and general nature of the grounds of review. In these circumstances, I am of the view costs in an amount of five thousand dollars ($5,000.00) should be awarded.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 14 October 2022
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