FRA18 v Minister for Home Affairs & Anor
[2019] FCCA 2287
•19 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FRA18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2287 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Malaysia – applicant not believed – interlocutory dismissal of show cause application as incompetent. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: AYH19 v Minister for Home Affairs & Anor [2019] FCCA 585 |
| Applicant: | FRA18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3019 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 19 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 19 August 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr D Baddeley of Mills Oakley |
INTERLOCUTORY ORDERS
The application is dismissed as incompetent.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3019 of 2018
| FRA18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative of Appeals Tribunal (Tribunal) made on 21 September 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 12 August 2019.
The applicant is a male citizen of Malaysia who arrived in Australia on 9 March 2017 and lodged a protection visa application on 2 June 2017.[1]
[1] Court Book (CB) 1-47
In his protection visa application form, the applicant claimed he was of Chinese ethnicity and of the Buddhist religion. He also made brief written claims that he departed Malaysia because he was beaten and threatened by Muslims (Malay) as his girlfriend was Muslim and he was Chinese. His girlfriend’s parents did not approve of the relationship and the applicant was beaten on several occasions by his girlfriend’s father and his friends. The applicant moved to another town but “they” still found him and beat him repeatedly. He also claimed he did not have many relatives in Malaysia and that, if he returned, they would find and beat him again, “punish him in the mosque” and force him to convert to Islam. The applicant claimed he previously made a police report but the police told him this was a serious offence and they would put him in jail.[2]
[2] CB 36-38
The applicant provided copies of his identity card and pages of his passport to the Minister’s Department.[3]
[3] CB 42-47
On 18 September 2017, the delegate refused to grant the applicant a protection visa.[4] The delegate found there was no information to suggest that the applicant would be targeted for one of the reasons mentioned in s.5J(1)(a) of the Migration Act 1958 (Cth) (Migration Act).[5] The delegate relied on independent country information that indicated Malaysians were free to marry people of other races, ethnicity or religion, and was also satisfied that if the applicant returned to Malaysia, he could obtain protection from the authorities if required.[6]
[4] CB 49-61
[5] CB 53
[6] CB 54-55
The Tribunal
On 18 September 2017, the applicant applied to the Tribunal to review the delegate’s decision.[7]
[7] CB 62-68
By a letter dated 4 January 2018, the applicant was invited to attend a hearing before the Tribunal scheduled for 30 January 2018,[8] which he attended.[9]
[8] CB 75-81
[9] CB 86-88
At the hearing, the applicant raised a new claim that six months before he came to Australia he left his factory job and went to work in a relative’s noodle selling business in Kuala Lumpur.[10] The Tribunal also raised with the applicant at the hearing various issues and concerns that it had with his claims and evidence.[11]
[10] CB 94, [14]
[11] CB 95, [23]
On 21 September 2018, the Tribunal affirmed the delegate’s decision.[12] The Tribunal found that the applicant was not a credible witness,[13] and that his oral testimony was “vague and evasive, shifted, and was inconsistent with the claims and information he provided in his protection visa application”.[14] Specifically, the Tribunal found that:
a)despite claiming in his protection visa application that he was repeatedly beaten, his testimony about who beat him seemed “intentionally unforthcoming”. The Tribunal found it was difficult to elicit from the applicant precisely who beat him on the first and third occasion. The Tribunal was “overall” left with the “strong impression” that the applicant was not recounting events he had personally experienced;[15]
b)the unemployment details the applicant provided at the hearing were inconsistent with the details he provided in his protection visa application that he worked for Green Point from January 2004 to February 2017;[16]
c)in his protection visa application, the applicant claimed he was beaten by his girlfriend’s father but when questioned at the hearing about the four occasions he was allegedly beaten he made no specific mention of being beaten by the father. The Tribunal found that if the applicant was beaten by his girlfriend’s father as claimed, then it would have expected that he would have specifically identified the occasions on which her father beat him when questioned at length during the hearing;[17] and
d)the testimony the applicant gave at the hearing that he moved to Kuala Lumpur and was not harmed there was inconsistent with his claim in his protection visa application that he moved to another town in Malaysia but was found there and beaten “again and again”.[18]
[12] CB 91-98
[13] CB 93, [9]
[14] CB 96, [25]
[15] CB 96, [26]
[16] CB 96, [27]
[17] CB 96-97, [28]
[18] CB 97, [29]
As the Tribunal found that the applicant was not a credible witness, it did not accept his oral testimony or his written claims, and rejected the applicant’s claims for protection in their entirety.[19]
[19] CB 97, [31]
Having rejected the applicant’s claims, the Tribunal found there was no real chance he would be persecuted for any s.5J(1)(a) reason if he returned to Malaysia. The Tribunal found he did not have a well founded fear of persecution, was not a refugee and did not satisfy s.36(2)(a) of the Migration Act.[20]
[20] CB 97, [32]
As the Tribunal had rejected the applicant’s factual claims, it also found there was no real risk that he would suffer significant harm and concluded that the applicant did not satisfy s.36(2)(aa) of the Migration Act.[21]
[21] CB 97, [33]
The present proceedings
These proceedings began with a purported show cause application filed on 26 October 2018. The applicant continues to rely upon that application. As is noted in the Minister’s submissions, the application is defective in that it only seeks a writ of certiorari for the Tribunal decision to be quashed.
The applicant has not sought a writ of mandamus or prohibition, or an injunction against the Tribunal, as provided for by s.75(5) of the Constitution. In those circumstances, the application fails properly to invoke the Court’s jurisdiction pursuant to s.476(1) of the Migration Act.[22] It is, however, open to the Court to amend the application at hearing with the consent of the applicant.[23] I asked the applicant this afternoon whether he would like to amend his application in that respect, but he declined the opportunity. It follows that his application remains incompetent.
[22] See WZAQB v Minister for Immigration & Anor [2012] FMCA 688 at [28] – [33]
[23] See AYH19 v Minister for Home Affairs & Anor [2019] FCCA 585 at [20] and Sharma v Minister for Immigration & Anor [2018] FCCA 2152 at [13]
An additional difficulty with the application, which I pointed out to the applicant, is that it does not assert any jurisdictional error by the Tribunal. The only ground in the application is the statement that the applicant was beaten by his girlfriend’s parents, and that he cannot return to Malaysia because those people are looking for him everywhere. I invited the applicant to point to some argument of legal error by the Tribunal, but he was unable to do so. No argument of error is apparent to me.
The Minister’s submissions deal adequately with the application as advanced.
Ground 1 simply re-states the applicant’s factual claim for protection that he “was beaten by my girlfriends parents”. Ground 2 also repeats the applicant’s claim that he cannot return to Malaysia because “they are looking for me everywhere”.
These are not proper grounds of review and fail to identify even an arguable case of jurisdictional error in the Tribunal’s decision. Both grounds do no more than to invite the Court to undertake merits review, which it cannot do.[24]
[24] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272
The applicant’s supporting affidavit filed on 26 October 2018 merely states “that all the details that I given is true” (sic) and annexes a copy of the Tribunal’s decision. These matters fail to advance the applicant’s case in any meaningful way.
Conclusion
I conclude that the application before the court is incompetent. I will order that the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The scale amount is $3,737. The applicant stated that the decision on costs was up to me.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 21 August 2019
15
5
3