FPD17 v Minister for Immigration

[2019] FCCA 1743

FEDERAL CIRCUIT COURT OF AUSTRALIA

FPD17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1743

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Protection (Class XA)(Subclass 866) visa – whether the Tribunal misconstrued the risk and fear of significant harm as set out in s 36(2A) of the Migration Act 1958 (Cth) – whether the Tribunal had no jurisdiction to make the decision – whether the Tribunal failed to comply with mandatory requirements under s.424A of the – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 426A, 441A, 425A

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

Applicant: FPD17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3943 of 2017

Judgment of: Judge Humphreys

Hearing date: 24 June 2019

Date of Last Submission: 24 June 2019

Delivered at: Parramatta

Delivered on: 24 June 2019

REPRESENTATION

Applicant appeared in person.

Solicitors for the Respondents: Ms Strugnell, Minter Ellison

ORDERS

1. The application is dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the amount of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 3943 of 2017

FPD17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. The applicant is a citizen of Malaysia who arrived in Australia on 8 December 2015. On 26 February 2016, the applicant applied for a Protection (Class XA) (Subclass 866) visa. On 9 May 2016, a delegate for the Minister of Immigration and Border Protection (“the Minister”) refused to grant a Protection (Class XA) (Subclass 866) visa. On 18 May 2016, the applicant sought merits review in the Administrative Appeals Tribunal (“the Tribunal”). On 28 March 2017, the applicant was notified of a hearing with the Tribunal, scheduled for 21 April 2017. The applicant did not attend the hearing. On 21 November 2017, the Tribunal affirmed the decision of the delegate for the Minister to refuse the Protection (Class XA) (Subclass 866) visa. The applicant now seeks judicial review of the Tribunal’s decision in this Court.

Applicant’s Claims

1. In his application for a Protection (Class XA) (Subclass 866) visa, the applicant claimed to fear harm from his friends who gave him money to invest in gambling in foreign exchange. The applicant lost the money and is unable to pay his friends. The applicant claims if he returns to Malaysia, he will be harmed by people looking to get their money back.

Administrative Appeals Tribunal’s Decision

1. On 28 March 2017, the Tribunal sent an email to the applicant at his indicated email address, advising him of the time, date and place of the hearing and inviting him to attend. The applicant did not respond to that letter. SMS reminder messages were sent to a telephone number indicated by the applicant as a contact number on 12 April 2017 and 17 April 2017, reminding him to attend. Those messages failed to deliver. The applicant did not attend the hearing on 21 April 2017.

2. The Tribunal concluded that it was entitled to make a decision without taking further action to enable the applicant to appear before it under s 426A of the Migration Act 1958 (Cth) (“the Act”). The Tribunal concluded at paragraph 17 of its decision:

   The applicant’s written claims lacked detail and it is not possible for the Tribunal to conclude that the applicant faced any form of harm with such limited information before it. After considering his claims, the applicant did not provide sufficient evidence to satisfy the Tribunal (ie) that he would be harmed for reason of having to repay his friends in Malaysia, or that he has a real chance of suffering serious or significant harm for reason of his debt to his friends.

   Accordingly, the Tribunal concluded the applicant did not meet the criteria under s 36(2)(a) or s 36(2)(aa) of the Act.

Grounds of Appeal

1. There were three Grounds of Appeal. They set out as follows:

   1. The Tribunal misconstrued the risk and fear of significant harm as set out in s 36(2)(a) of the Migration Act 1958 (Cth.). The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm upon return to Malaysia.

   2. The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived at in accordance with the provisions of the Migration Act 1958 (Cth.). I was denied to present my case before the Tribunal. I did not receive the invitation letter.

   3. The second respondent failed to comply with a mandatory requirement under s 424A (read with s 424AA) of the Migration Act 1958 (Cth.) to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

   Particular:

   The Tribunal did not issue any written invitation under s 424A of the Migration Act (Cth.) and, made no attempt to, and did not, comply with the requirement set out in s 424AA of the Migration Act (Cth.).

Applicant’s Submissions

1. The applicant appeared self-represented with the benefit of a Malay interpreter, albeit by telephone. At the commencement of the hearing, the applicant was advised that the Court could not engaged in merits review and could only review the matter based on errors of law.

2. The applicant told the Court that he would like the Court to know why he came here. The applicant said that he had checked his personal profile in Malaysia and he was now bankrupt. The applicant was concerned as to what might happen in the future. The applicant did not see a good future if he was already bankrupt. The applicant said it was difficult to get a proper job and look after his family because he had a good job here and his children were going to school and he had started a new life.

3. The applicant was asked whether or not he had received the invitation to attend the hearing at the Tribunal, which is set out in an email on page 63 of the Court book, with the letter being on pages 64 and 65 of the Court book. The applicant told the Court that he had, in fact, received that letter but may have overlooked it. The applicant also agreed that he had changed a telephone contact number but had not advised the Tribunal of the changed contact number.

4. The applicant also told the Court that he had moved to Sydney and that he had engaged an agent to assist him with going to the Tribunal. The applicant told the Court that the agent was going to look after the matter and that he had paid him money to do so. The agent had not done this and the applicant has not been able to contact him. The applicant said he is still looking for the agent. However, the applicant did not have any material he could present to the Court to corroborate the claim that he had engaged a person to act on his behalf. The applicant was asked if he could turn his attention to the Grounds of Appeal.

5. In relation to Ground 1, the applicant told the Court that he wants to have a second interview so that he can explain his situation to the Tribunal and why he wants to stay in Australia.

6. In relation to Ground 2, the applicant said that the letter did not say he needed to come in for an interview, or maybe he just did not understand it. The applicant confirmed that he received the letter. However, the applicant thought the hearing was in a Court, not the Tribunal, and mistook what was required of him.

7. In relation to Ground 3, the applicant said that he was unable to give any excuses as to why he did not attend on 21 April 2017. The applicant said he thought he had followed up in respect of the letter and thought that the hearing would be in Sydney. The applicant said he asked his agent to get the hearing moved to Sydney, but he had no proof that he had instructed the agent to do so.

Respondent’s Submissions

1. Ms Strugnell, on behalf of the first respondent submitted that in relation to the grounds that are set out above, that Ground 1 should be understood as an expression of the applicant’s disagreement with the adverse findings of the Tribunal and simply amounts to an invitation for the Court to engage in impermissible merits review. It was submitted that the decision record demonstrates the Tribunal understood the claims made by the applicant but found there was insufficient detail to reach the requisite level of satisfaction. In circumstances where the Tribunal had notified the applicant that it was “unable to make a favourable decision” on the material before it, and the applicant then failed to appear at a hearing to provide further information, “the inevitable consequence was the rejection of his application”.

2. In relation to Ground 2, it is submitted that the first sentence is incapable of a meaningful response. On a generous reading, the second sentence takes issue with the Tribunal’s decision to exercise its discretion under s 426A(1A)(a) of the Act to proceed to make a decision in the absence of the applicant was, in all the circumstances, reasonable. It was submitted to the Court that there were no agent details contained in any of the correspondence provided to either the Minister or the Tribunal. The email address that was provided was consistent throughout the course of the proceedings. As it was the last email address provided to the Tribunal, the Tribunal was entitled to use that address pursuant to

   
   

   s 441A(5) of the Act. The applicant was given appropriate notice, being 14 days, of the time, date and place of the hearing, pursuant to s 425A(1) of the Act.

3. The information the applicant was provided with indicated clearly that if he did not attend at the hearing, the Tribunal could proceed to decide the matter in his absence. It is submitted that the decision to proceed under s 426A(1A)(a) of the Act was made reasonably in the light of the following:

   1)     The hearing invitation was sent to the last known email address provided by the applicant, and that had indicated that the Tribunal was unable to make a favourable decision.

   2)     The Tribunal followed up with two SMS hearing reminders to the mobile number provided by the applicant. Whilst those SMS’s failed, the Tribunal was under no obligation to seek to attempt to contact the applicant via alternative means, that given the applicant’s prior conduct of not seeking to actively engage in the process before either the Minister or the tribunal, such a failure to attend the hearing was not out of character.

4. Accordingly, where the applicant did not seek to actively engage in the process, the decision to proceed in the matter in the absence of the applicant was reasonable.

5. In relation to Ground 3, it was submitted that the ground is a template ground that does not engage with the applicant’s case. It was submitted that there was no information before the Tribunal that engaged an obligation in s 424A(1) of the Act.

6. The Tribunal’s findings were based on information that was before it which was also in the possession of the applicant, being the Minister’s decision. It was submitted the Tribunal was not required to give the applicant particulars of its assessment of the adequacy of his claims and evidence, and having invited him to attend the hearing, it had discharged its obligation under s 425 of the Act. Accordingly, the Tribunal complied with its procedural fairness obligations and no jurisdictional error is made out.

Considerations

Ground 1

1. It is for the applicant to advance arguments that they have a well-founded fear (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at paragraph [187] per Gummow and Hayne JJ.)

2. I am satisfied that the Tribunal did consider the claims of the applicant based on the material it had before it. At paragraphs 14 to 17 of its decision, the Tribunal clearly set out the applicant’s claims in relation to owing money and the applicant’s fears if he was required to return to Malaysia. At paragraph 16 of its decision, the Tribunal noted that it was not required to accept uncritically any or all of the allegations made by the applicant.

3. At paragraph 17 of its decision, the Tribunal noted that the applicant’s written claims lacked detail and it was not possible to conclude that the applicant faced any form of harm such on the limited information before it. The applicant did not advance claims in relation to his religion, his race, or any of the other requirements that one would normally be looked at under the refugee criterion in s 36(2)(a) of the Act.

4. The Tribunal also considered the complementary protection requirements and for the same reasons, came to a view that the applicant did not meet the requirements for complementary protection under

   
   

   s 36(2)(aa) of the Act.

5. I am satisfied that the Tribunal did understand the claims of the applicant, but on the basis of the information before the Tribunal, it was simply unable to find in his favour. The conclusions were not illogical or unreasonable and I am not satisfied that any jurisdictional error is made out.

Ground 2

1. I agree with the submission of the respondent that Ground 2 is very unclear, and again, it seems to take issue with the fact that the Tribunal made an adverse decision in the applicant’s absence. I am satisfied that all the required steps pursuant to s 426A(1A)(a) of the Act were taken prior to making the decision to proceed to make a decision in the absence of the applicant. The applicant was notified in an email sent on 28 May 2017, which he now acknowledges receiving. I am reasonably satisfied the applicant did not receive the two reminder SMS messages that were sent, but that failure was due to him not updating his contact details with the Tribunal.

2. The notice that the applicant received notice via email, which he acknowledges receipt of, complied with all of the requirements of

   
   

   s 425A(1) of the Act. It gave the applicant more than 14 days’ notice and provided information about the time, date and place of the hearing. It indicated that on the information available to the Tribunal, it was unable to make a favourable decision. The email also provided information as to what could happen if the applicant failed to attend. The fact that the applicant did not engage with the Tribunal was not out of character and supported the decision to proceed in his absence (see Kaur v Minister for Immigration and Border Protection (2014) 236 FCR 393 at paragraph [95]).

3. I reject the submissions of the applicant that he engaged an agent on his behalf. No evidence has been provided of that engagement and I cannot be satisfied that such an engagement of an agent, be they registered or unregistered, ever took place. In those circumstances, I am not satisfied that any jurisdictional error has been made out by Ground 2.

Ground 3

1. Ground 3 alleges a contravention of s 424A and s 424AA of the Act by not issuing a written invitation specifying material that was adverse to the applicant. I agree with the first respondent’s submission, the Tribunal was not required to give the applicant particulars of its assessment of adequacy of the applicant’s claims and evidence (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.

2. I agree with the first respondent’s submission that in the circumstances where it the Tribunal had issued a written invitation and the applicant failed to attend, the Tribunal discharged its obligations under s 425 of the Act. The decision to proceed in the applicant’s absence was not unreasonable and I am satisfied that there was no further requirement for the Tribunal to take any action, having sent out an invitation to attend and there being no response. Accordingly, Ground 3 must also fail.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:  

Date:  26 August 2019