ENM17 v Minister for Immigration
[2018] FCCA 2772
•25 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ENM17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2772 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 422B, 424AA, 425 |
| Cases cited: Hao v Minister for Immigration [2018] FCA 1341 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Minister for Immigration v Jia Legeng (2001) 205 CLR 507 Minister for Immigration v Lay Lat (2006) 151 FCR 214 Re Refugee Tribunal; Ex Parte H (2001) 179 ALR 425 Saeed v Minister for Immigration (2010) 241 CLR 252 SCAA v Minister for Immigration [2002] FCA 668 SZLXE v Minister for Immigration [2008] FCA 1312 SZNJQ v Minister for Immigration [2010] FCA 138 VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 WABC of 2002 v Minister for Immigration [2002] FCAFC 286 |
| First Applicant: | ENM17 |
| Second Applicant: | ENN17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3126 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2018 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | Ms S Gaussen of Sparke Helmore |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3126 of 2017
| ENM17 |
First Applicant
| ENN17 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 12 September 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
There are two applicants who, at the time of the Tribunal decision, were in a relationship. The first applicant (applicant) attended today’s hearing alone and told me that he and the second applicant are now separated. He agreed that she is no longer part of his family group.
Background facts relating to the applicants’ claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 18 September 2018.
The applicant, a citizen of Malaysia, first arrived in Australia on 18 May 2010 on an Electronic Travel Authority (Class UD) (Subclass 601) visa.[1] The applicant was granted a student visa which expired on 21 November 2012.[2] On 4 October 2016, the applicant applied for the protection visa.[3] In support of that application, the applicant provided an undated statement setting out his claims.[4]
[1] Court Book (CB) 122, [3]
[2] CB 125, [24]
[3] CB 1-39
[4] CB 65-66
The second applicant, a citizen of Indonesia, is the claimed partner of the applicant. She did not advance any claims in her Part C form but referred to the “statement” provided (which is taken to be a reference to the applicant’s undated statement).[5]
[5] CB 40-64
On 21 March 2017, the delegate refused to grant the applicants the visa.[6]
[6] CB 82-98
On 24 March 2017, the applicants applied to the Tribunal for review of the delegate’s decision.[7] On 11 September 2017, the applicant appeared at a hearing before the Tribunal.[8] The second applicant did not appear at the hearing.[9] On 12 September 2017, the Tribunal affirmed the decision under review.[10]
[7] CB 99
[8] CB 111
[9] CB 111
[10] CB 121-132
The applicants’ claims
The applicant claimed to fear harm from local loan sharks and gangsters in Malaysia. The applicant claimed:[11]
[11] CB 65-66
a)he took out a loan from a Chinese loan company to open his own hair salon;
b)he opened the hair salon in June 2007 and, in the beginning, business was good;
c)in January 2008, a “group of Malaysians” came to his salon and demanded to speak to him. He was asked how long the salon had been open and told that he must pay a protection fee of 2,500 ringgit per month. He said he could not pay the protection fees and they threatened to take the money or “smash” the salon;
d)if he paid the protection fees he would not have enough money to make his repayments to the Chinese loan company;
e)the group came to his salon at the end of the month and, as he only had 1,500 ringgit, they took away his salon equipment and continued to make trouble for him;
f)in June 2009, as he had defaulted on the loan, the loan company gave him a final deadline. People working for the loan company came to his salon and took away his equipment and beat him. They threatened to cut off his fingers if he did not repay the loan;
g)he reported this to the police but they only wrote down a record and did not take “practical” action;
h)he went into hiding but, ultimately, had no choice but to come to Australia in May 2010; and
i)he cannot live in Malaysia any more as the Chinese loan company still enquires after him and he was put on their blacklist.
Tribunal decision
The Tribunal found that the applicant was not a witness of truth or a credible witness.[12] The Tribunal identified the following issues in support of that finding:
[12] CB 125, [23]
First, the applicant’s extended delay (of over six years) in applying for protection indicated he had no subjective fear.[13] The Tribunal rejected his explanation for the delay in applying for protection and found he was not a credible witness.[14] The Tribunal put to the applicant pursuant to s.424AA of the Migration Act 1958 (Cth) (Migration Act) that he had arrived in May 2010 but had not applied for a protection visa until September 2016.[15] The Tribunal noted its particular concern that the applicant was in Australia unlawfully from November 2012 to September 2016 and that if he truly feared harm and left for the reasons claimed, he would have applied for a protection visa sooner.[16] The Tribunal did not accept that the applicant did not know that he could apply for protection as he had previously had ten years of education and had undertaken the research to apply for a student visa.[17]
[13] CB 125, [25]
[14] CB 125, [26]
[15] CB 125, [24]
[16] CB 125, [24]-[26]
[17] CB 125, [26]
Secondly, the fact that the applicant returned to his home area in Malaysia on two occasions (in 2011 and 2012) undermined his claims.[18] The Tribunal put to the applicant, pursuant to s.424AA of the Migration Act, that the applicant returned to Malaysia from 12 June 2011 to 7 July 2011 and 6 August 2012 to 24 August 2012 and that this may give rise to questions as to the credibility of the applicant’s claims.[19] The applicant said he returned to stay with his brother while his father was in hospital.[20] The Tribunal did not accept the applicant’s explanation and was of the view that if the applicant was in hiding before he left Malaysia because of the unpaid debt, threats and blacklist, he would not have returned on two occasions to his home area, even if he was only staying with his brother and travelling to the hospital.[21]
[18] CB 126, [27]
[19] CB 126, [27]
[20] CB 126, [27]
[21] CB 126, [27]
Thirdly, the applicant’s delay in departing Malaysia following the grant of his visa to travel to Australia undermined his claim to face difficulties in Malaysia.[22] The Tribunal put to the applicant pursuant to s.424AA that the information before the Tribunal indicated that the applicant did not depart Malaysia until six weeks after the grant of his visa.[23] The Tribunal was not satisfied that the applicant’s response, namely that his life will be at risk and he will be threatened on return, explained his delay in departing.[24]
[22] CB 126, [28]
[23] CB 126, [28]
[24] CB 126, [28]
Fourthly, the applicant gave inconsistent and confusing evidence as to where he lived in Malaysia when he claimed he went into hiding.[25] The Tribunal was of the view that if the applicant had gone into hiding he would have been consistent in his evidence as to where he lived and would have been able to provide more detailed evidence as to the nine months he was said to have spent in Johor.[26]
[25] CB 126, [29]
[26] CB 126, [29]
Fifthly, the applicant had not attempted to repay any portion of the loan despite his claimed fear for the safety of his family and himself in Malaysia.[27] The Tribunal was of the view that if he faced the difficulties, he would have attempted to repay some of the money rather than spending it on travel and study as he had done.[28] The Tribunal noted that while this issue was not solely determinative, its concerns in this regard “added” to its adverse credibility finding.[29]
[27] CB 127, [30]
[28] CB 127, [30]
[29] CB 127, [30]
These matters, when considered cumulatively, led the Tribunal to find that the applicant was not a credible witness.[30] On this basis, the Tribunal found that the applicant had fabricated his claims and concocted evidence to achieve a migration outcome.[31] The Tribunal allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner in which a question is asked.[32] The Tribunal noted that the applicant had been consistent in respect of some of his evidence, but that this did not outweigh the significant credibility issues identified above.[33] The Tribunal rejected the applicant’s claims in their entirety.[34]
[30] CB 127, [31]-[32]
[31] CB 127, [32]
[32] CB 127, [33]
[33] CB 127, [34]
[34] CB 127-128, [35]-[36]
The Tribunal was therefore not satisfied that the applicant was a person to whom Australia owed protections obligations under s.36(2)(a) or s.36(2)(aa) of the Migration Act.[35]
[35] CB 128-129, [37]-[40], [44]
The Tribunal accepted that the second applicant was a citizen of Indonesia but noted that she did not make any claims regarding a fear to return to Indonesia.[36] The Tribunal found that she did not make any claims of her own and that there was no evidence as to how the difficulties claimed by the applicant in Malaysia would affect the second applicant on return to Indonesia.[37] Therefore, the Tribunal did not accept that the second applicant was a person to whom Australia owed protections obligations under s.36(2)(a) or s.36(2)(aa) of the Migration Act.[38]
[36] CB 128-129, [41]-[42]
[37] CB 129, [42]
[38] CB 129, [43]-[44]
The present proceedings
These proceedings began with a show cause application filed on 9 October 2017. The applicant continues to rely upon that application. The grounds in it are:
1.AAT is not fair regarding case and prejudiced against me.
2.AAT interrupted me when I was [trying] to [give] evidence.
3.AAT didn’t allow me to finish my evidence and made a decision very quickly even before the hearing is over.
The application is supported by an affidavit filed with it, which I received. In that affidavit, the applicant simply identifies himself and attaches the Tribunal decision record. I also have before me as evidence the court book filed on 10 January 2018.
Only the Minister filed written submissions in advance of today’s show cause hearing. I invited oral submissions from the applicant. He told me that he was frequently interrupted by the Tribunal when he was speaking, but agreed with me that he had made no complaint about that at the time. He told me that he was asked to leave by the Tribunal member, presumably at the end of the hearing, when, according to the applicant, the Tribunal member said that his visa application would be rejected. He said that he was told by the Tribunal member to pack his bags and leave Australia within two weeks. He later amended this to twenty days.
I raised with the applicant the absence of any evidence in support of these assertions. I reminded the applicant that orders had been made by a Registrar on 30 November 2017 which, among other things, provided him with the opportunity to file a transcript of the Tribunal hearing by 15 February 2018. No transcript has been provided. Notwithstanding his agreement that the orders made by the Registrar had been read to him by the interpreter at the first court date directions, the applicant asserts that he did not understand that a transcript was needed to support his allegations. He said he assumed that the Court would have access to things like CCTV footage of the hearing. I explained to the applicant that Tribunal hearings are audio recorded and that a CD of the sound recording would have been available to him to listen to and to prepare a transcript from. He told me that there would have been no point in him listening to the sound recording because he does not understand English.
The assertions made by the applicant are bare assertions made in his application and repeated from the bar table. The Court should not indulge in idle speculation as to what may or may not have been said by the Tribunal member.[39] The Tribunal decision was made the day following the hearing conducted by the Tribunal, and in those circumstances it would not be surprising if the Tribunal had formed a view about the review application by the end of the hearing. It is not beyond the bounds of possibility that the Tribunal member might have considered it appropriate to give some indication of a likely decision at that time. In the absence of any evidence of what was actually said, however, I am not willing to draw any conclusions on the basis of the allegations made by the applicant.
[39] See Hao v Minister for Immigration [2018] FCA 1341 at [29]
In other respects I agree with the Minister’s submissions in relation to the grounds of review advanced.
Ground 1 makes a broad assertion of procedural unfairness on the part of the Tribunal and is without substance. There is no evidence before the Court, nor is it apparent from the Tribunal’s reasons, that the Tribunal did not comply with its obligations under Division 4 of Part 7 of the Migration Act. Section 422B of the Migration Act provides that Division 4 of Part 7 of the Migration Act is an exhaustive statement of the natural justice hearing rule in relation to the matters Division 4 deals with.[40]
[40] Minister for Immigration v Lay Lat (2006) 151 FCR 214; Saeed v Minister for Immigration (2010) 241 CLR 252
The Tribunal put three pieces of information to the applicant pursuant to s.424AA of the Migration Act.[41] In the absence of any evidence of non-compliance with s.424AA of the Migration Act by the Tribunal, I infer that the Tribunal complied with its obligations.[42]
[41] See CB 125-126, [24], [27], [28]
[42] SZNJQ v Minister for Immigration [2010] FCA 138 at [38]; SZLXE v Minister for Immigration [2008] FCA 1312 at [19]
To the extent that the applicant’s contention that the Tribunal was “prejudiced” against him in Ground 1 can be construed as a claim that the Tribunal was biased, such an allegation is a serious allegation which must be firmly and distinctly made and clearly proven.[43] The applicant has made no attempt to particularise this serious allegation or provide any evidence to suggest that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, a proper evaluation of the matter.[44] Nor is there anything on the material before the Court to indicate that a fair minded and informed person might reasonably apprehend that the member might not have brought an impartial mind to bear on the decision.[45] It is well established that the method of the Tribunal is inquisitorial, and that the member was entitled to test the applicant’s claims, and in relation to credit, was entitled to have regard to the earlier evidence given by him.[46]
[43] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 531
[44] Jia Legeng at 531
[45] Re Refugee Tribunal; Ex Parte H (2001) 179 ALR 425 at [27]
[46] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [78]-[81]
Further, the Tribunal’s statement of reasons alone generally cannot be relied on to support a finding of an apprehension of bias.[47] Nor can any inference of bias be drawn from the mere fact of adverse findings in his reasons.[48]
[47] Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [33], [67]
[48] VFAB at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3]
The applicant’s bare assertions rise no higher than an emphatic expression of disagreement with the Tribunal’s findings. No arguable case of jurisdictional error is raised by Ground 1.
Grounds 2 and 3 of the application take issue with the Tribunal’s conduct of the hearing. The contentions that the Tribunal interrupted the applicant and did not let him finish his evidence go to the question of whether the applicant received a “real and meaningful” hearing as required by s.425 of the Migration Act. There is no evidence before the Court to support the applicant’s contentions in this regard. On the face of the decision record, the Tribunal gave the applicant a sufficient opportunity to give evidence and present arguments in respect of his claims. In its decision record the Tribunal notes that it put its specific concerns to the applicant as to the credibility of his evidence and otherwise put relevant information to the applicant pursuant to the s.424AA procedure.
To the extent that the contentions in Grounds 2 and 3 can be said to assert a claim of bias against the Tribunal, I reject the assertion for the same reasons as in relation to Ground 1.
Conclusion
The applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
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 first applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 27 September 2018
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