Emh17 v Minister for Home Affairs

[2019] FCCA 279

FEDERAL CIRCUIT COURT OF AUSTRALIA

EMH17 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 279

Catchwords:

MIGRATION – Protection visa – judicial review of Tribunal decision to refuse visas – whether conclusions drawn by Tribunal – decision not affected by jurisdictional error – no jurisdictional error demonstrated – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.65

Applicant: EMH17

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2206 of 2017

Judgment of: Judge A Kelly

Hearing date: 8 February 2019

Date of Last Submission: 8 February 2019

Delivered at: Melbourne

Delivered on: 8 February 2019

REPRESENTATION

The Applicant: In person

Solicitor for the Respondents: Ms Ward

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.

2. The application filed on 16 October 2017 be dismissed.

3. The applicant pay the costs of the first respondent fixed at $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2206 of 2017

EMH17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 16 October 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 20 September 2017 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa pursuant to s 65(1)(b) of the Migration Act 1958 (Cth) (Act).

2. The applicant, a Malaysian national aged 47 years, first arrived in Australia on 22 October 1995 on a Tourist (Subclass 676) visa.  The applicant departed Australia in 1995, returning on 22 October 2015 on an Electronic Travel Authority (Subclass 601) visa.

3. On 14 January 2016, the applicant made an application for a Protection (Subclass 866) visa. The application was deemed to be invalid because it did not satisfy s 46(2A) of the Act as he had not provided the necessary personal identifiers.

4. On 30 March 2016, the applicant made a valid application for a Protection (Subclass 866) visa.  The applicant’s claims for protection arose from his participation in a Berish rally in 2012 and in the treatment which he had received and feared he would receive at the hands of the authorities and the police.  No documentary or other evidence was supplied in support of the claims for protection. 

5. On 3 May 2016, a delegate of the Minister refused to grant the applicant a Protection visa.  From the decisional record of the delegate it appeared that the applicant could speak, read and write in Bahasa Malaysian and in English and that he was a project manager by occupation. 

6. On 8 May 2016, the applicant lodged an application to the Tribunal for a review of the delegate’s decision.

7. On 10 August 2017, the applicant was invited to attend a hearing before the Tribunal on 8 September 2017 to give evidence and present arguments relating to the decision under review.  Later that day, the applicant emailed the Tribunal requesting that the hearing be rescheduled to Sydney as he was residing in Cabramatta.   

8. On 4 September 2017, the Tribunal invited the applicant to attend a rescheduled hearing on 8 September 2017 in Sydney.  The applicant attended that hearing and was assisted by a Malay interpreter. 

9. On 20 September 2017, the Tribunal made a decision to affirm the delegate’s decision to refuse the visa application.  It provided a statement of reasons for that decision (Reasons). 

10. The Tribunal accepted that the applicant was a citizen of Malaysia. 

11. The Tribunal found that although the applicant’s written claims were very limited and lacking in detail, his oral testimony had elaborated on them in a consistent manner.  However, the Tribunal found that the applicant’s testimony did not support or substantiate the applicant’s claims for protection. 

12. The Tribunal accepted that the applicant had some knowledge of Malaysian politics and that he shared an anti-government political opinion, but found critical elements of his claims about fears of the police to be unsupported.  The Tribunal noted that despite claiming to fear the authorities, the applicant made a complaint against them after he was purportedly arrested for attending an anti-government rally in 2012.  The Tribunal also noted that if the applicant had held a genuine and urgent fear of being harmed, he would have departed Malaysia considerably earlier than he did in 2015. 

13. The Tribunal considered country information and accepted that although the applicant held anti-government political opinions, he was not a person of interest to the Malaysian authorities (he had departed without being detained and could have been easily discovered by the authorities over many years since he was purportedly arrested).

14. The Tribunal made adverse credibility findings regarding the applicant’s claims to have attended Bersih and other anti-government or pro-reform rallies in Malaysia.  The Tribunal found that the applicant had not been charged with any offence, issued with a police report, summonsed or fined for his political opinion or any other reason.  The Tribunal did not accept that the applicant had made a complaint to the authorities about his purported arrest and found that the applicant’s overall claims about his political opinions were fabricated for migration purposes.

15. Having considered all of the applicant’s claims, both individually and cumulatively, the Tribunal was not satisfied that there were substantial claims for believing the applicant would be at a real risk of significant harm if he was removed from Australia to Malaysia. For those reasons, the Tribunal found that the applicant did not satisfy the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision of the delegate to refuse the visa application.

Procedural history

1. On 16 October 2017, the applicant filed an application for judicial review of the Tribunal’s decision.  The applicant also affirmed an affidavit which exhibited a copy of the Reasons but which did not otherwise adduce any evidence in support of the application for review.

2. By a Response filed on 3 November 2017, the Minister sought that the application be dismissed on the basis that no arguable case for the relief sought was raised.

3. On 27 June 2018, orders were made, by consent, listing the application for final hearing. By this order, the applicant was afforded an opportunity to file an amended application with proper particulars, a supplementary court book and written submissions in support of the application. The applicant did not take those opportunities.

4. On 17 January 2019, the Minister filed detailed submissions which were responsive to the matters in the application.

Consideration

1. The application contains four grounds of review, each of which is not the subject of elaboration by way of particulars.  As the applicant was self-represented, I have re-examined the materials in the court book and the Reasons of the Tribunal.

2. Grounds 1 and 2 read:

   The Tribunal failed to consider many vital integers of my case.

   The Tribunal failed to consider many vital evidence that are relevant to my case.

3. The applicant’s written claims were discrete and the material before the court (including the delegate’s decisional record), indicates that he provided no documentary evidence in support of his claims.

4. The applicant’s written claims were identified by the Tribunal and considered in light of (inter alia) the applicant’s evidence at hearing set out in the decision record (the only evidence of his oral testimony: Reasons, [17], [29]-[34], [36], [39].

5. The Tribunal ultimately rejected each of the applicant’s claims on the basis of identified adverse credibility findings which were open to the Tribunal for the reasons it gave: Reasons, [29]-[33], [35], [43]. There is nothing to suggest that the applicant’s claims or evidence were not considered by the Tribunal. Grounds one and two are rejected.

6. Ground 3 reads:

   The Tribunal deprived me of procedural fairness.

7. The Tribunal complied with its procedural fairness obligations under Part 7, Division 4 of the Act. By invitation emailed to the applicant on 10 August 2017, the applicant was invited to attend a hearing before the Tribunal on 8 September 2017 in accordance with s 425 and s 425A of the Act. The Tribunal accommodated the applicant’s request that the hearing be held in Sydney (doing so by way of audio-visual link to the Tribunal in Melbourne). The applicant was assisted in the hearing by a Malay interpreter. The applicant was also on notice from the delegate’s decision and the Tribunal’s questioning at hearing that the credibility of his claims was a determinative issue on review. No breach of the obligations embodied in s 425 of the Act is apparent.

8. Further, there was no information that was required to be put to the applicant in accordance with s 424A of the Act. The Tribunal’s decision was based on country information, the applicant’s written and oral evidence to the Tribunal, and written evidence to the department, all of which fell within the exceptions in ss 424A(3)(a), 424A(3)(b) and 424(3)(ba) of the Act respectively. No breach of s 424A has occurred.

9. Ground three is rejected.

10. Ground 4 reads:

    The Member has failed to do his duty.

11. Ground four is a bare assertion that the Tribunal member failed to do his duty.  Without further particulars, this ground is meaningless and should be rejected. 

Conclusion

1. Before me, the applicant was assisted by an interpreter but appeared to readily understand the matters which were addressed with him and often provided his response before the interpreter had completed a translation. When asked to identify the manner in which the Tribunal had committed a serious error in the making of its decision, the applicant twice stated that he had nothing he wished to say.

2. The application should be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Associate: 

Date:  8 February 2019