Eiu17 v Minister for Immigration
[2019] FCCA 1218
•9 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EIU17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1218 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Malaysia – applicant not attending Tribunal hearing – Tribunal proceeding to make a decision in his absence – inadequate material provided to support the grant of the visa – whether the Tribunal’s exercise of discretion to proceed in the absence of the applicant miscarried considered – no jurisdictional error. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.2A Federal Circuit Court Rules 2001 (Cth) Migration Regulations 1994 (Cth) |
| Cases cited: Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration v Sharma (1990) 90 FCR 513 Minister for Immigration v Singh (2014) 231 FCR 437 Minister for Immigration v SZVFW (2018) 357 ALR 408 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 WAEE v Minister for Immigration (2003) 236 FCR 593 |
| Applicant: | EIU17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3001 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 9 May 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Ms C Winnett |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The application filed on 28 September 2017 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 $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3001 of 2017
| EIU17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 29 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 the applicant’s claims for protection and the decision of the Tribunal on them are conveniently set out in the Minister’s outline of submissions filed on 1 May 2019.
The applicant is a citizen of Malaysia.[1]By an application lodged on 30 January 2017, the applicant applied for a protection visa.[2] The visa application provided the applicant’s email address and stated that the applicant agreed to the Minister’s Department communicating with him via email to that address.[3] For convenience, that email address is described below as the Gmail Address.
[1] Court Book (CB) 107 [6]
[2] CB 1, 53
[3] CB 17
Attached to the applicant’s visa application were a copy of his passport,[4] and a one-page statement (Statement),[5] to which he cross-referred in his visa application as the document setting out his claims for protection.[6] The application form stated that the applicant was ethnically Chinese and a Mandarin speaker[7] and feared returning to Malaysia,[8] but otherwise contained no details on the alleged harm that the applicant feared or his reasons for claiming protection.[9]
[4] CB 38
[5] CB 39
[6] CB 32-34
[7] CB 16
[8] CB 32
[9] CB 32-34
In his Statement, the applicant claimed that:[10]
[10] CB 39
a)he had to borrow RM 30,000 from a finance company to set up his computer assembly, maintenance and repair company;
b)a Malay customer had complained of a “quality problem” with the computer the applicant had assembled for him and sought a refund from the applicant in July 2014, which request the applicant refused because he found there was no problem with the computer;
c)the police took the applicant to the police station for an investigation in relation to the customer’s complaint, beat the applicant and said that had he lied, and said that they would imprison him unless he paid them RM 5000;
d)the applicant’s parents paid the amount to the police and he was released;
e)the applicant’s business was greatly affected due to this incident, which then meant that he could not repay the finance company;
f)people from the finance company often came to the applicant’s house to urge him to pay money, threatening that they would cut off his hand if he could not repay the company;
g)the applicant sought police protection but the police refused his request; the finance company was in collusion with the police and bribed them;
h)because the applicant could not repay the finance company on time, debt collectors took away his computer accessories and other valuables and splashed paint on his wall;
i)the applicant had to flee Malaysia, and after he left the finance company could not find him but continued to harass his parents;
j)the applicant has tried to earn money to repay his debts but the debts have continued to mount;
k)the applicant “dare[s] not to return home” because he is “afraid [he will] be imprisoned or killed by debt collectors from the financial company”, and he requested the Australian government’s protection.
On 6 March 2017, the delegate refused the applicant’s visa application.[11] By email sent to the Gmail Address, the Minister’s Department sent the applicant a copy of the Minister’s notification of the refusal decision (Notification) and the delegate’s protection visa decision record (delegate’s decision).[12]
[11] CB 53
[12] CB 57
Proceedings before the Tribunal
On 31 March 2017, the applicant sought review of the delegate’s decision in the Tribunal.[13] He attached a copy of the Notification and the delegate’s decision to his application for review,[14] and provided contact details to the Tribunal that included the same email address (the Gmail Address) and mobile phone number that he provided in his visa application form.[15]
[13] CB 71
[14] CB 72
[15] CB 72
On 4 April 2017, the Tribunal emailed the applicant at the Gmail Address,[16] attaching a letter that acknowledged his application (Acknowledgment Letter).[17] Relevantly, the Acknowledgment Letter informed the applicant that the Tribunal had received his application for review; that he should inform the Tribunal immediately if his contact details changed as otherwise he “might not receive an invitation to a hearing or other important information” and his “case may be decided without further notice”; and that, if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.[18] There is no evidence that the applicant provided any material or submissions to the Tribunal in response to that letter.
[16] CB 91
[17] CB 92
[18] CB 92
On 27 July 2017, the Tribunal again emailed the applicant at the Gmail Address,[19] attaching a letter inviting him to attend a hearing (Invitation Letter) and a form entitled “Response to hearing invitation – MR Division”.[20] The Invitation Letter stated that the Tribunal had been unable to make a favourable decision on the applicant’s application on the basis of his application alone. It invited the applicant to appear before the Tribunal to “give evidence and present arguments relating to the issues in [his] case”, and stated that the hearing would occur on 29 August 2017 at 9:30am at the Tribunal’s Sydney premises.[21] Underneath the heading “What you should do within 7 days of receipt of this letter”, the letter stated:[22]
Please read, complete and return the enclosed ‘Response to hearing invitation – MR Division’ form to confirm your attendance at the hearing. Please use this form or attach additional information if you have any requests or any new information which you wish us to consider. Any documents or written arguments sent to us should be in English or be translated by a NAATI accredited translator.
[19] CB 94
[20] CB 94-99, 107 [4]
[21] CB 95
[22] CB 95
On its second page, under the heading “Other things to note”, the Invitation Letter stated (among other things):
If you are not able to attend the hearing, you need to advise us as soon as possible. Any request to postpone a hearing must be made in writing as early as possible, including the reasons for making the request. Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment. If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.
If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application on the information before us. …
The enclosed leaflet ‘Information about hearings – MR Division’ contains important information about hearings, dismissals and your rights.
The applicant did not reply to the Invitation Letter.[23] Nor did he appear before the Tribunal at the hearing at 9:30am on 29 August 2017.[24]
[23] CB 107 [5]
[24] CB 100-102, 107 [5]
On 29 August 2017, the Tribunal affirmed the delegate’s decision.[25] In its reasons, it first considered the issue of the applicant’s failure to attend the hearing. It noted that it had sent the Invitation Letter to the applicant by email, inviting him to attend the hearing and notifying him that the Tribunal might make a decision on his case without further notice if he failed to attend; that two SMS reminder texts were sent to him on 22 and 28 August 2017, although both had “failed”; that he did not appear at the hearing; and that he did not otherwise reply to the Invitation Letter.[26] “In these circumstances”, the Tribunal stated, it had decided under s.426A of the Migration Act 1958 (Cth) (Migration Act) to make its decision on the review without taking any further action to enable the applicant to appear before it.[27]
[25] CB 105-106
[26] CB 107 [4]-[5]
[27] CB 107 [5]
The Tribunal then turned to the applicant’s claims. It accepted that he was an ethnically Chinese citizen of Malaysia who had lawfully departed Malaysia on 14 November 2014 and arrived in Australia on a visitor visa the following day, and noted that he only applied for a protection visa almost three years later on 30 January 2017.[28] It explained that it was not required to accept the applicant’s allegations uncritically. “After considering his claims”, the Tribunal stated, the applicant “did not provide sufficient evidence to satisfy the Tribunal (ie) that he had any business problem in Malaysia; or that he had any problem with the police in Malaysia; or that even if he did have some kind of other problem, he could not safely and reasonably locate within Malaysia”.[29] The Tribunal noted that an applicant must supply the relevant facts of his or her case “in as much detail as is necessary to enable the decision-maker to establish the facts”.[30]
[28] CB 107 [6]
[29] CB 108 [7]
[30] CB 108 [8]
“Based on the claims provided”, the Tribunal was not satisfied that the statutory elements for the applicant’s protection claim had been made out – namely, that he had a well-founded fear of persecution within the meaning of the “refugee criterion” in the Migration Act, or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal to Malaysia, there was a real risk that he would suffer significant harm.[31] Nor did the Tribunal consider that there was any issue “squarely raised by the evidence” that satisfied it that the applicant had “a real chance of serious or significant harm in Malaysia”.[32]
[31] CB 108 [9]
[32] CB 108 [10]
For those reasons, the Tribunal found that the applicant was not a person to whom Australia owed protection obligations as a refugee[33] or under the complementary protection framework.[34]
[33] sections 36(2)(a) or (b) of the Migration Act
[34] CB 108 [11]-[12]; ss.36(2)(aa) or (c) of the Migration Act
The present proceedings
These proceedings began with a show cause application filed on 28 September 2017. The applicant continues to rely on that application. There are four unparticularised grounds in that application:
Tribunal made Jurisdictional errors in my case.
1. Tribunal does not consider whether the delegate disclosed relevant information to me properly.
2. Tribunal does not consider discrimination ethnic Chinese suffer in Malaysia.
3. Tribunal does not treat my case fairly and my claims are not considered.
4. Tribunal does not properly apply the law when considering potential harm I will suffer if I return to Malaysia.
The application was supported by a short affidavit filed with it, which I received as a submission.
I have before me as evidence the court book filed on 13 February 2018 and a supplementary court book filed on 22 February 2018. The point of the supplementary court book was to provide a case note record of SMS hearing reminders which were sent to the applicant, albeit unsuccessfully.
The Minister’s written submissions were read to the applicant by the interpreter before I came on the bench. I invited oral submissions from him. He told me initially that the Tribunal failed to consider that the Minister’s Department had not properly disclosed information. When I pressed him for details, however, he said that the information in question was the two SMS hearing reminders sent by the Tribunal. I accept that those hearing reminders were not received by the applicant. It appears from the court book that the telephone number used by the Tribunal was that nominated by the applicant, and there is no reason to suppose that the telephone number was incorrect. This suggests that some other technical difficulty was the reason for the failure of the SMS reminders.
I drew to the applicant’s attention that the Tribunal had corresponded twice with him with his nominated email address and he had not responded. He indicated that while it is possible he did not receive those emails, if he did receive them, he would not have been able to understand them as he does not read English. I queried with him in the circumstances whether he would have been able to understand the SMS hearing reminders if he had received them. He thought that was improbable. He agreed with me that in the circumstances the outcome may well have been the same if he had received the SMS hearing reminders. This suggests that there was no practical unfairness in the failure of the SMS hearing reminders.
In a case such as this, there are, as I pointed out to the applicant and the Minister’s counsel, several options for the Tribunal to follow. If the Tribunal felt that it might be unfair to proceed in the absence of the applicant, it could reschedule the hearing. If the Tribunal had no reason to believe that the applicant was confronting any problem preventing him from attending a hearing, the Tribunal was entitled either to proceed in his absence to make a decision or to dismiss the application on account of the applicant’s non-attendance. In the present case, the Tribunal took the former option.
In my view, while the Tribunal could have done more when it knew that the SMS hearing reminders had not been received such as telephoning the applicant, it was not under any legal obligation to do so. Further, unless the Tribunal had a Mandarin interpreter available for that call, it probably would not have been productive. In my view, the Tribunal in this case was entitled to proceed in the way it did. The exercise of discretion followed by the Tribunal was available to it, and it was exercised reasonably. This is discussed in more detail from [29] below.
I otherwise agree with the Minister’s submissions in relation to the applicant’s grounds of review advanced.
Ground 1
Ground 1 asserts that the Tribunal did “not consider whether the delegate disclosed relevant information to me properly”. That ground is misconceived. These proceedings are concerned with the validity of the Tribunal’s merits review of the delegate’s decision, noting that the Tribunal was required to exercise all the powers and discretions conferred on the Migration Act by the Minister and come to the correct or preferable decision.[35] Any want of procedural fairness by the delegate is irrelevant to the Tribunal’s exercise of jurisdiction, and thus cannot vitiate the Tribunal’s decision.
[35] see s.415(1) of the Migration Act and (by analogy) Minister for Immigration v Sharma (1990) 90 FCR 513 at [37]
Ground 2
Ground 2 contends that the Tribunal did “not consider discrimination ethnic Chinese suffer in Malaysia”. However, the Tribunal was only required to consider claims that were expressly articulated by the applicant or raised clearly or squarely on the material before it.[36] The applicant did not articulate a claim to fear harm based on his Chinese ethnicity, or suggest that his difficulties with the debt collectors, the source of his fears,[37] were attributable to his ethnicity or to discrimination against ethnically Chinese people in Malaysia. Nor did the applicant indicate that people of his ethnicity faced persecution in his country of origin. His ethnicity is not mentioned in his Statement at all. Rather, the tenor of his Statement is that the finance company’s debt collectors are pursuing him because he has not repaid his loan. This is consistent with his affidavit in these proceedings, which states that he fears returning to Malaysia “because I will be harmed by the debt collectors from the financial company”.[38]
[36] see NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [58]-[61]
[37] CB 39
[38] at [3]
There is nothing in the material before the Tribunal that articulated or squarely raised any claim to fear persecution based on discrimination against ethnically Chinese people in Malaysia. Accordingly, the Tribunal was not required to consider such a claim.
Ground 4
By Ground 4, the applicant makes an unparticularised claim that the Tribunal did “not properly apply the law when considering potential harm I will suffer if I return to Malaysia”. In its decision, the Tribunal described the alternative criteria for a protection visa applicable under ss.36(2)(a), (aa), (b) and (c) of the Migration Act[39] and concluded that it was not satisfied that those statutory criteria had been made out.[40] Contrary to the applicant’s contentions, the Tribunal’s reasons demonstrate that it was aware of, and applied, the correct law.
[39] CB 107 [2]
[40] CB 108 [9], [11]-[12]
Ground 3
By Ground 3, the applicant contends that the Tribunal did “not treat my case fairly and my claims are not considered”.
The applicant does not particularise the manner in which the Tribunal purportedly acted unfairly or the claims that the applicant says were not considered. However, one issue broadly relevant to the first aspect of Ground 3 that may be raised by the Tribunal’s decision is whether the Tribunal reasonably exercised its discretion under s.426A(1A) of the Migration Act to proceed to make its decision on review. The discussion below considers and addresses this issue before turning to the second aspect of Ground 3 (the contention that the Tribunal failed to consider the applicant’s claims).
The Tribunal’s exercise of discretion under s.426A(1A) was not legally unreasonable
Where an applicant is invited under s.425 of the Migration Act to appear before the Tribunal but fails to appear on the scheduled day or at the scheduled time and place, the Tribunal may, by written statement under s.430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it.[41]
[41] section 426A(1A)(a)
In the present case, the Tribunal had invited the applicant to appear before it, and had done so by following the notice requirements in s.425A read with s.441A of the Migration Act. Specifically, the Invitation Letter:
a)gave the applicant notice of the date, time and place of the Tribunal hearing;[42]
b)was given to the applicant by a method specified in s.441A (s.425A(2)(a)); namely, transmission by email to the last email address provided to the Tribunal by the applicant in connection with the review.[43] The statutory consequence of this is that the applicant is taken to have received it at the end of the day on 27 July 2017, the date when the email attaching the Invitation Letter was transmitted;[44]
c)gave the applicant notice of the 29 August 2017 hearing date that well exceeded the “prescribed period”,[45] which was the period commencing when the applicant received the Invitation Letter and ending 14 days thereafter;[46]
d)contained a statement of the effect of s.426A.[47]
[42] section 425A(1); see [8] above
[43] section 441A(5)(d); see [8] and [11] above
[44] section 441C(5)
[45] section 425A(3)
[46] regulation 4.35D(3) of the Migration Regulations 1994 (Cth) (Regulations)
[47] section 425A(4); see [9] above
The applicant failed to appear at the hearing. Accordingly, the Tribunal was permitted to engage s.426A and make a decision on the review without taking any further action to allow the applicant to appear before it.[48] The discretionary power in s.426A must be exercised reasonably.[49] It could be suggested that the Tribunal’s decision to determine the review application without further contacting the applicant was legally unreasonable, eg, in circumstances where the Tribunal was on notice that its two SMS notifications to the applicant had “failed” (see [11] above). However, I reject that argument for the following reasons.
[48] see Minister for Immigration v SZVFW (2018) 357 ALR 408 at [7]-[8], [119]
[49] SZVFW at [4], [65], [89]-[90]
As to the relevant principles, whether the exercise of a discretion can be characterised as legally unreasonable is “invariably fact dependent and requires a careful evaluation of the evidence”.[50] Further, the concept of legal reasonableness, or the sphere in which the Tribunal has a genuinely free discretion, is bounded by the scope and purpose of the statutory source of the power.[51] Section 426A of the Migration Act is “directed to the aims of efficiency” contained within the prescriptions in s.420 (and, since 1 July 2015, s.2A of the Administrative Appeals Tribunal Act 1975 (Cth)) concerning the Tribunal’s manner of exercising its functions.[52] The statutory scheme created by s.426A read with ss.425, 425A, 441A and 441C of the Migration Act suggests that a Tribunal satisfied that s.425 had been followed would ordinarily act reasonably in deciding to exercise the discretion under s.426A(1) to make a decision on the merits without further attempting to contact the absent applicant.[53] That statutory context provides the backdrop for understanding Nettle and Gordon JJ’s statement in SZVFW that:[54]
The discretion in s 426A recognises that the exercise of the discretion in a given case will be affected by the subject matter of the particular review, the course the review has taken, the Tribunal's approach throughout the review, the applicant's situation and conduct throughout the review and the other surrounding circumstances.
[50] SZVFW at [84]; see also Minister for Immigration v Singh (2014) 231 FCR 437 at [42]
[51] SZVFW at [12], [79], [89]-[90], [135]
[52] see SZVFW at [13]
[53] SZVFW at [69]; see also at [7]-[9], [118]-[120]
[54] at [97]
It is also worth recalling that the courts will not lightly interfere with an exercise of statutory power involving an area of discretion, and the threshold of establishing legal unreasonableness is a stringent one.[55] Whilst the standard for legal reasonableness has been expressed in different ways, it is concerned with both the “existence of justification, transparency and intelligibility” within the decision-making process, and with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (as may be captured by the plurality’s “no evident and intelligible justification” formulation in Minister for Immigration v Li[56] at [76].[57]
[55] SZVFW at [10]-[11], [52], [86]
[56] (2013) 249 CLR 332
[57] SZVFW at [82], quoting from Li at [105]
In this matter, the Tribunal’s exercise of discretion under s.426A was not legally unreasonable. The case is broadly analogous with SZVFW, in which the protection visa applicants had failed to respond to the Tribunal’s invitation letter or to attend the hearing, and had previously failed to attend a scheduled hearing with or provide supporting documents to the Minister’s Department.[58] The High Court held that the Tribunal’s exercise of power under s.426A(1) (which was materially identical to s.426A(1A)(a) as now in force) to determine the review application was not unreasonable.[59]
[58] at [100]-[105]
[59] at [14], [70]-[71], [123], [141]
The key factual and legal circumstances supporting this conclusion in the present case are as follows. First, the applicant failed to appear at the hearing even though the Invitation Letter had been emailed to him in compliance with s.441A(5) of the Migration Act. The significance of this was that the applicant was deemed to have receive the Invitation Letter on 27 July 2017 under s.441C(5), ss.425 and 425A were satisfied, and the Tribunal was entitled to make a decision on the review without taking any further action.[60]
[60] see similarly SZVFW at [119]
Secondly, the applicant had failed to respond both to the Tribunal’s Acknowledgment Letter, which had been emailed to the Gmail Address several months earlier and invited the applicant to provide material or written arguments to the Tribunal “as soon as possible”, and to the Invitation Letter itself, which asked the applicant to return a “response to hearing invitation” form. The Gmail Address had been listed as the applicant’s contact email address in the review application, and in the attached documents, that he lodged with the Tribunal four days before the Acknowledgment Letter was emailed to him. As at the date of the hearing, it was reasonable for the Tribunal to infer that the applicant was accessing emails at the Gmail Address.[61] Thus, it cannot be said that the applicant’s failure to appear at the hearing was “unexpected or unremarkable”; on the contrary, it was consistent with his earlier conduct in the Tribunal proceedings,[62] which conduct suggested that “a further attempt by the Tribunal to make contact with [him] would be unlikely to elicit a response”.[63]
[61] see similarly SZVFW at [141]
[62] see similarly SZVFW at [121]-[122]
[63] SZVFW at [70]
Thirdly, those matters are not outweighed by the fact that the Tribunal apparently sent SMS reminders to the applicant that “failed”.[64] The Tribunal had no statutory obligation to give the applicant any further reminders of the hearing date after satisfying the requirements of ss.425 and 425A. It was entitled to assume that the applicant had received the Invitation Letter by email, and the applicant has made no claim and adduced no evidence suggesting that he did not receive it.
[64] see CB 107 [4] and Supplementary Court Book 1
Fourthly, the Tribunal’s reasoning process at [4]-[5][65] demonstrates that it based its decision to exercise its discretion under s.426A on the applicant’s failure to respond to the Invitation Letter and failure to appear before the Tribunal, and, in light of the statutory scheme described earlier, there is nothing unreasonable about that.[66]
[65] CB 107
[66] see similarly SZVFW at [14], [70], [138], [141]
The Tribunal considered the applicant’s claims
The claims made by the applicant are summarised at [4] above. Contrary to the applicant’s contentions, the Tribunal’s reasons indicate that it considered the substance of those claims and then rejected them on the basis that, on the evidence before it, it was not satisfied of the factual contentions on which those claims relied.
The Tribunal stated on multiple occasions that it had considered the material and claims provided by the applicant.[67]The Tribunal also had before it the delegate’s decision,[68] which summarised the applicant’s claims at CB 58.The Tribunal noted that the applicant was “engaged in business in Malaysia”,[69] and found that, “[a]fter considering his claims”, the applicant did not provide sufficient evidence to satisfy the Tribunal that “he had any business problem in Malaysia; or that he had any problem with the police in Malaysia; or that even if he did have some kind of other problem, he could not safely or reasonably relocate within Malaysia”.[70]
[67] CB 107 [4], 108 [7], [9]
[68] CB 107 [1]
[69] CB 107 [3]
[70] CB 108 [7]
Noting that the Tribunal’s reasons should not be read with an eye keenly attuned to error,[71] the Tribunal’s references to the applicant’s “business problem” and “problem with the police in Malaysia” should be understood as encapsulating the applicant’s alleged history with and fears concerning the finance company and debt collectors as well as his purported mistreatment by police. The Tribunal’s earlier summary statement[72] that the applicant “fear[ed] harm as an ethnic Chinese person engaged in business in Malaysia” must be read in that context. That summary statement described the applicant’s ethnicity but then accurately emphasised that the core of the applicant’s fears of harm concerned his business activities in Malaysia, which were then addressed later in the Tribunal’s reasons at [7].[73]
[71] see, eg, WAEE v Minister for Immigration (2003) 236 FCR 593 at [46]
[72] at CB 107 [3]
[73] CB 108
I conclude that the applicant has failed to demonstrate that the decision of the Tribunal was affected by any jurisdictional error. The decision is therefore privative clause decision and the application must be dismissed. I will so order.
I will order that the application filed on 28 September 2017 is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed. The applicant did not wish to be heard on costs.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,328.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 15 May 2019
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