Eqf18 v Minister for Home Affairs

[2019] FCCA 1077

FEDERAL CIRCUIT COURT OF AUSTRALIA

EQF18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1077

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for a Protection visa – Administrative Appeals Tribunal affirms decision of Delegate not to grant a Protection visa – applicant claimed decision of Administrative Appeals Tribunal affected by jurisdictional error – however applicant had given evidence to the Administrative Appeals Tribunal that he did not need protection in Australia and did not fear harm in Malaysia and had applied for a Protection visa purely so that he could work in Australia but wanted to maintain residence in Australia until the end of January 2019 to finish a contract he had with Optus – Application in a Case by Minister for Home Affairs to have the applicant’s Application summarily dismissed – no reasonable prospect for applicant to successfully prosecute the proceeding – application for judicial review summarily dismissed.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.17A

Migration Act 1958 (Cth)

Federal Circuit Court Rules 2001 (Cth)

Cases cited:

Agar v Hyde (2000) 201 CLR 552

AWA15 v Minister for Immigration [2018] FCA 604

Spencer v The Commonwealth of Australia (2010) 241 CLR 118

Applicant: EQF18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2509 of 2018

Judgment of: Judge Dowdy

Hearing date: 12 April 2019

Delivered at: Sydney

Delivered on: 12 April 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Ms S. Roberts

Solicitors for the First Respondent: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 7 September 2018 is dismissed pursuant to s.17A of the Federal Circuit Court Act 1999 (Cth) and r.13.10 of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicant pay the First Respondent’s costs of the proceeding in the sum of $4,350.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2509 of 2018

EQF18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. I am considering an Application in a Case filed by the Minister on 13 March 2019 seeking to strike out the Application filed in this Court by the Applicant on 7 September 2018 on the basis that the Applicant has no reasonable prospect of successfully prosecuting the proceeding. 

2. The Applicant is a male citizen of Malaysia aged 44 years, having been born on 8 January 1975. 

3. By the Application filed in this Court he seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 16 August 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, then the Minister for Immigration and Border Protection (Minister), dated 23 March 2017 refusing to grant to him a Protection (Class XA) (Subclass 866) visa (Protection visa)

Background

1. The Applicant arrived in Australia on 20 September 2016 on a Visitor visa.  He applied for the Protection visa on 9 December 2016.

2. He claimed in his Protection visa application form to read and write but not speak English.  In answer to question 90 of his Protection visa application form he claimed:

   90.Why did you leave that country(s)?

   This is because the bad economy situation in my country. I have a lot of monthly commitments to be solved. The cost of living has increased. Prices of consumer goods also rose. I was working, but my monthly income is very low. Expenditure in terms of home, spending for groceries, utilities and other bills that are exceeded my monthly income. Due to cost of living pressures, I almost wanted to borrow money from loan sharks. I rethink and cancel what I thought to do, I didn’t want to take risks by borrow the money from loan sharks. Me and my family are facing difficulties due to the high living costs. Whether in a city or village, we are burdened with the economic situation. I was no longer able to save money since every goods prices increased. My family and I often argue when it comes to money management because the economy is too bad . I decided to go abroad in search of better opportunities. I spend all my savings to come and survive in Australia. I want to start a new life and build a future in Australia. I want to help my family. My family put their hopes on me and I do not want to disappoint them. Since I am already here I do not want to be the illegitimate residents in the country. I want to stay and work legally here. I'm willing to pay taxes if necessary. I understand and know that I must abide by the laws here.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visa in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because:

   ... the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; ....

2. Other than copies of pages from his Malaysian passport and his Malaysian identity card, the Applicant provided no other documents in support of his application for a Protection visa to the Department of the Minister.

Decision of Delegate

1. The Delegate found that the principal motivation of the Applicant in making his Protection visa application was to seek a better life and future in Australia, both for himself and his family, and to support his family. 

2. The Delegate found that the Applicant was not a refugee.  The Delegate considered country information on the Malaysian economy, noted that the Applicant wanted to remain for employment activities in Australia and found that the state of the Malaysian economy did not amount to significant harm for the purposes of the complementary protection criterion, and he refused to grant the Protection visa to the Applicant.

Decision of Tribunal

1. The Applicant lodged an application for merits review of the Delegate’s decision with the Tribunal on 27 March 2017. 

2. On 10 August 2018, the Applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Malay and English languages.  The short point is that the Minister has tendered part of the transcript of the Tribunal hearing which reveals that the Applicant told and informed the Tribunal as follows:

   a)he had applied for a protection visa purely so that he could maintain work in Australia;

   b)he does not need protection in Australia;

   c)the only reason he needed a Protection visa in Australia was that it made it easy for him to work;

   d)he wanted to stay in Australia until January of this year (i.e. 2019) because he had a contract with Optus that finished on 1 January, and then he wanted to extend his stay for the whole of January;

   e)he was happy to go back to Malaysia because he had been in Australia for a long time;

   f)he planned to return to Malaysia after January 2019; and

   g)he did not really fear any harm if he returned to Malaysia.

3. Unsurprisingly, the Tribunal affirmed the decision of the Delegate not to grant the Protection visa to him. 

4. In the circumstances, I am not going to spend much time setting forth the reasoning of the Tribunal because it is sufficient to note that at [21], [22], [23] and [27] of its Decision Record the Tribunal recorded the evidence given by the Applicant, as set out by me in the preceding paragraph. 

5. Then at [27] and [29] of its Decision Record the Tribunal stated as follows:

   [27]The Tribunal raised with the applicant that although it had not made a decision on his claims, it had concerns with his claims for protection which included the following matters. He gave oral evidence that he came to Australia to work, worked illegally, was happy to return to Malaysia in January 2019 when his Optus contract concluded, doesn't need protection, agreed his claims were embellished, and agreed he was not a refugee or entitled to complementary protection. He delayed claiming protection after arrival in Australia. The Tribunal raised with the applicant that his written claims in the protection application appeared to be inconsistent with his claims by email and that there appeared to be inconsistencies in his oral evidence. The Tribunal also raised that the applicant at times gave vague oral evidence and his demeanour was evasive which might cause it to doubt his credibility. The Tribunal invited the applicant to make comment upon the aforementioned matters. He thanked the Tribunal for hearing his claims and was thankful for his current visa (a Bridging Visa A). The applicant requested the Tribunal to allow him to remain in Australia until January 2019. He maintained that he provided truthful information and accepted no responsibility for any untruthful information as his application for protection was completed by someone else. The applicant advised that in Australia a lot of people from outside perform work to help the Australia economy. The applicant reiterated that he wished to remain in Australia until January 2019 to conclude his Optus contract and keep his name 'unblemished'. He asked for a visa to enable him to remain in Australia until January 2019. The applicant advised that he had no further evidence to provide.

   [29] The Tribunal has very carefully considered the applicant's claims and the evidence before it. As previously outlined, during the review hearing the applicant admitted that he came to Australia purely to work, illegally performed work on his Visitor visa, is not in need of protection and is happy to return to Malaysia in January 2019 following the conclusion of his telephone contract with Optus. The applicant also initially advised in oral evidence that he did not fear harm in Malaysia. There are significant inconsistencies in the applicant's initial written claims, his claims submitted by email in May 2018 and his claims in oral evidence. The Tribunal does not accept the applicant was unaware of the contents of his initial written claims for protection given his initial oral evidence is that he wrote the emails of May 2018 himself, which were written in the English language. Overall, the Tribunal assesses the applicant to have made untruthful claims for protection given the aforementioned matters. Whilst the Tribunal is prepared to accept the applicant has a home loan and personal loans, as denoted in the submitted financial statements, it does not accept that he is in fear of being beaten (or in fear of any other harm whatsoever) as a result of these loans given his evidence that he is happy to return to Malaysia in January 2019 and that the financial documents indicate he has borrowed funds from financial institutions rather than those he says might beat him.

   (emphasis added)

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds asserted by the Applicant in his Application filed in this Court are as follows:

   1.Significant economic hardship that threatens the person (the Applicant) capacity to subsist.

   2.Submit additional evidence and proofs regarding my case to strengthen our case.

2. Ground 2 is not a ground at all and Ground 1 merely argues with the decision of the Tribunal and amounts to seeking an impermissible merits review of the Tribunal’s decision.

Application in a Case Filed on 13 March 2019

1. In the present circumstances of the case, the Minister submits that the Court should dismiss the Application under either or both of s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) (the Act) or r.13.10 of the Federal Circuit Court Rules 2001 (Cth) (the Rules).  The Minister submits that the Court should be satisfied that the Applicant has no reasonable prospect of successfully prosecuting his Application filed in this Court.

2. Section 17A of the Act provides relevantly as follows:

   17A  Summary judgment

   ...

   (2)  The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:

   (a)  the first party is defending the proceeding or that part of the proceeding; and

   (b)  the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

   (3)  For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

   (a)  hopeless; or

   (b)  bound to fail;

   for it to have no reasonable prospect of success.

   (4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.

3. Rule 13.10 of the Rules provides as follows:

   13.10The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:

   (a)  the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or

   (b)  the proceeding or claim for relief is frivolous or vexatious; or

   (c)  the proceeding or claim for relief is an abuse of the process of the Court.

4. I am conscious that any power of summary dismissal should be exercised with caution. In Agar v Hyde (2000) 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ commented as follows at 575-576 [57]:

   [57]Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.

5. To similar effect French CJ and Gummow J said in Spencer v The Commonwealth of Australia (2010) 241 CLR 118 at 131 [24]:

   [24]The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said:

   “The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”

6. Thus, when exercising the power to summarily dismiss a Court is enjoined by authority to exercise caution. However, I have come to the clear view that this is an appropriate case to exercise the power of the Court to summarily dismiss the proceeding. 

7. In my view, there is no real question to be tried in this case and, having regard to the evidence which the Applicant gave to the Tribunal, he cannot possibly succeed in setting aside the decision of the Tribunal for jurisdictional error.  The decision of the Tribunal is very largely based on the Applicant’s own evidence that it was his intention to leave Australia at least by the end of January of this year and that he did not face any harm back in Malaysia. 

8. In those circumstances, speaking with the most studied moderation which I am able to command, I find that the Applicant has no reasonable prospect of successfully prosecuting the proceeding and I will order its summary dismissal.

Costs

1. In this matter, the Minister asks for an order for costs in the sum of $4,350.  That is slightly above the scale costs permitted by this Court for an interlocutory dismissal which is the amount of $3,737.  Usually, when an amount is sought by a party and it is within scale, a Judge is entitled to make an order in that amount without further ado.  Where, on the other hand, it is for a higher amount, usually a Judge wants some sort of evidence about the reasonableness of the amount. However, in this case the amount sought by the Minister over and above the scale amount is not great, and there has been a contested application.

2. An Application in a Case and affidavit evidence in support together with Written Submissions had to be filed by the Minister, and I can and do take into account the fact that the Applicant has persisted in his case and forced the Minister to argue the matter today, notwithstanding that he told the Tribunal at the hearing in unequivocal terms that he intended to return to Malaysia at the end of January this year and that he did not fear harm in Malaysia. I will therefore make an order for costs in the sum of $4,350.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  24 April 2019