FVS18 v Minister for Immigration
[2020] FCCA 1178
•14 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FVS18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1178 |
| Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal was biased – whether the Tribunal misapplied the law – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.13.03C Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | FVS18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 588 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 13 May 2020 |
| Date of Last Submission: | 13 May 2020 |
| Delivered at: | Perth |
| Orders Pronounced: | 13 May 2020 |
| Delivered on: | 14 May 2020 |
REPRESENTATION
| Applicant: | No appearance by or for the applicant |
| Counsel for the First Respondent: | Mr J Papalia |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The hearing proceed pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).
The application be dismissed.
Written reasons for judgment be published from Chambers at a later date.
The applicant pay the first respondent’s costs fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 588 of 2018
| FVS18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter was listed for hearing on 13 May 2020. On that occasion, the applicant failed to appear. The Court had emailed the applicant twice confirming the date and time of the hearing and the first respondent (the “Minister”) tendered correspondence that had been sent to the applicant (marked as Exhibit 1) which clearly identified the date and time of the hearing. No appearance was entered.
In light of the above, Court made the following orders:
1. The name of the first respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2. The hearing proceed pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).
3. The application be dismissed.
4. Written reasons for judgment be published from Chambers at a later date.
5. The applicant pay the first respondent’s costs fixed in the sum of $7,467.
These reasons for judgment are the reasons referred to in order 4 above.
Background
The applicant is a citizen of Malaysia. He arrived in Australia on 15 January 2015 as the holder of travel visa (Court Book (“CB”) 43).
On 20 June 2016, the applicant applied for a Protection (subclass 866) visa (the “visa”) (CB 1-38). In his application the applicant claimed that:
a)he has experienced trouble from “gangsters”;
b)these gangsters will hurt, hit and blackmail him to pay for medical expenses if he returns;
c)previously, his family gave him money to pay the gangsters but they wanted more. They beat and kidnapped the applicant for three days. He was provided with no food;
d)no matter how much money the applicant pays, the gangsters will always want more and he cannot return.
On 13 December 2016, a Ministerial delegate refused to grant the applicant the visa (CB 40-58).
The applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) on 7 January 2017 (CB 59-60)
The applicant attended a hearing before the Tribunal on 17 July 2018 (CB 68-69 and 76-80). The applicant attended a further hearing on 16 October 2018 (CB 85-86 and 90-92).
At the conclusion of the hearing on 16 October 2018, the Tribunal delivered oral reasons explaining its decision to affirm the delegate’s decision to refuse the visa (CB 97-98). The Tribunal’s reasons were produced in written form on 2 November 2018 (CB 106-113).
On 9 November 2018, the applicant applied for judicial review of the Tribunal’s decision. The application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”).
The role of the Court on review is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
The categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision maker fails to consider the entirety of an applicant’s claims (or “integers” of the claims) as made: Minister for Immigration & Citizenship v SZRKT (2013) 302 ALR 572 at [111];
f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
Tribunal’s Decision
The Tribunal’s decision is 6 pages long. Oddly, it does not contain paragraph numbers. This makes appellate referencing difficult and is a practice that is to be discouraged.
The Tribunal referred to the legislative criteria for a protection visa, confirmed that it had had regard to the relevant country information in accordance with the relevant Ministerial direction and outlined the principles relevant to a credibility assessment (CB 110).
The Tribunal then detailed what had occurred in the course of the hearings before the Tribunal. Specifically, the Tribunal noted that the applicant responded in the negative when asked if he wanted to add anything to his claims for protection. The Tribunal also noted that the summary of the claims that the Tribunal read to him at the first hearing and at the second hearing were confirmed to be a “fair and accurate statement” of the applicant’s claims (CB 110-111). It is also noted that the applicant indicated that he did not wish to respond to anything in the delegate’s decision (CB 111).
The Tribunal then detailed the evidence the applicant had provided during the course of the hearings. The Tribunal noted that it had advised the applicant that it found his claims vague and lacking in appropriate detail. The Tribunal summarised the applicant’s responses and noted that his evidence was inconsistent with country information and materially inconsistent in important aspects (CB 111-112).
The Tribunal found that the applicant’s claims were not true as they were “unreasonably vague and undetailed”. It noted that, despite concerns being raised with the applicant in this regard, the applicant was unable to provide an adequate level of detail relating to the core aspects of his protection claims. On this basis, the Tribunal found that the claims were not credible and not genuinely held by the applicant (CB 112).
The Tribunal also referred to the applicant’s delay in applying for the visa. The Tribunal referred to the applicant’s explanation but ultimately found that the unreasonable delay undermined the credibility and genuineness of the applicant’s claims (CB 112).
In light of its concerns about the lack of detail in the applicant’s claims and the delay in applying for the visa, the Tribunal did not accept that the applicant had been harassed by criminal thugs in Malaysia (as claimed) nor by any other person for any other reason (CB 112).
Ultimately, the Tribunal did not accept that if the applicant were to be returned to Malaysia he would face any chance of being seriously harmed by criminal thugs or any other person now or in the reasonably foreseeable future (CB 112). Noting that the real chance test and real risk test imposed the same standard, the Tribunal was not satisfied that s.36(2)(aa) was met (CB 112).
The Tribunal remarked:
…Taking your claims at their highest they remain unacceptably vague, lacking in detail, unsupported by credible country information, and are not established.
The Tribunal was not satisfied that the applicant met s.36(2)(a) or s.36(2)(aa) of the Act and affirmed the delegate’s decision to refuse the visa.
Proceedings in this Court
The applicant’s application for judicial review dated 9 November 2018 contains four grounds of review as follows:
1. AAT was prejudiced and formed the view that I had exaggerated my claimed fear of harm at the hands of persons to whom I owe money.
2. AAT has prejudice against me and did not believe me bashed or otherwise harmed by money lenders seeking to recover their loan.
3. AAT was very biased and didn’t accept my claims explaining the delay of applying for a protection visa. AAT didn’t believe that I did not know of the availability of protection visas until a friend told me about it.
4. AAT made unreasonable presumption that I do not face a rare chance of “serious harm” and there appeared to be no indication that protection would be withheld from me in Malaysia.
The applicant was given an opportunity to file an amended application, supporting affidavit and an outline of submissions. No further documents were filed. The Minister filed an outline of written submissions on 22 April 2020. Otherwise, the materials before the Court included the Court Book (which was marked as Exhibit 2). The Court is satisfied that the Court Book was served by email and to the nominated postal address provided by the applicant.
As noted above, the applicant made no appearance before the Court. The Court had made arrangements for an interpreter to be present to assist the applicant. In the circumstances, noting that the Minister had fully prepared for the matter, the application had been on foot for some time and the applicant was aware of the hearing and how it would proceed, the Court determined it appropriate to proceed under r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth).
Consideration
Grounds 1-3
1. AAT was prejudiced and formed the view that I had exaggerated my claimed fear of harm at the hands of persons to whom I owe money.
2. AAT has prejudice against me and did not believe me bashed or otherwise harmed by money lenders seeking to recover their loan.
3. AAT was very biased and didn’t accept my claims explaining the delay of applying for a protection visa. AAT didn’t believe that I did not know of the availability of protection visas until a friend told me about it.
Grounds 1-3 can be dealt with together. They all allege some form of bias or prejudice on the part of the relevant decision maker. They also take issue with the fact that the Tribunal did not believe the applicant.
It is well accepted that an allegation of bias must be clearly made and distinctly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] (“Jia Legeng”).
To prove bias, it is for the applicant to establish that:
a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng; or
b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the IAA had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
Put simply, the fact that the Tribunal does not believe an applicant or does not accept his explanations does not mean that the Tribunal is biased.
There is nothing in the Tribunal’s decision to indicate that the Tribunal approached the review application with a concluded view and was not open to persuasion. Rather, the Tribunal’s decision indicates the contrary. The decision, read as whole, demonstrates that the Tribunal gave the applicant a number of opportunities to address the concerns that the Tribunal had – all of which were articulated.
As for the applicant’s reference to particular findings by the Tribunal in each of the grounds above, the Court notes as follows:
a)in relation to ground 1, the Court cannot identify any part of the decision where the Tribunal makes reference to the applicant “exaggerating” his claims. Rather, the Tribunal refers to the claims as “vague” and lacking in detail. In the absence of any indication whatsoever that that the Tribunal had formed the view that the applicant “exaggerated” his claim, it cannot be said that the Tribunal was biased. Nor can any other identifiable error be recognised in this regard;
b)in relation to ground 2, the Tribunal did reject the applicant’s claims to have been harmed by money lenders. It did so on the basis that the applicant was unable to remember when he first owed the money, the incident in which it was said he came to be loaned the money was lacking in detail, he gave inconsistent evidence as to when the money lenders “chased him” and his evidence about what occurred when he went to the police was inconsistent with country information. The analysis provided by the Tribunal establishes a sound and reasonable basis for the conclusions drawn; and
c)in relation to ground 3, the Tribunal never actually states that it does not believe the applicant. Rather, the Tribunal notes that the applicant made no attempt during an extended period to look for assistance (on either the Internet; from a travel agent; a migration agent; a lawyer; the police, the Department or even by returning to the airport and ask for assistance when it would have been reasonable to do so). It was open to the Tribunal to determine that the delay in applying for the visa (or seeking to normalise or verify his migration status) undermined the applicant’s credibility.
Here, the determinative issue was the credibility and genuineness of the applicant’s claims. The Tribunal’s conclusion that the applicant’s claims were not credible or genuine was based upon the vague, undetailed and inconsistent evidence provided by the applicant, the delay in seeking protection and an inconsistency with relevant country information. The Tribunal put each of its concerns to the applicant for comment. When the applicant did respond, the Tribunal assessed his response as lacking in important details. On the occasions he did not respond, he did so on his own volition.
The Tribunal’s findings and overall assessment were logical, reasonable, fair and entirely free of bias.
Grounds 1-3 are, accordingly, dismissed.
Ground 4
4. AAT made unreasonable presumption that I do not face a rare chance of “serious harm” and there appeared to be no indication that protection would be withheld from me in Malaysia.
Ground 4 appears to contend that the Tribunal’s ultimate conclusion that the applicant did not face a real chance of harm was “unreasonable”. The use of the word “presumption” also suggests that applicant is arguing that the Tribunal’s findings were made without evidence.
The Tribunal’s ultimate finding that the applicant did not face a real chance of harm was not unreasonable or illogical. The Tribunal did not “presume” that the applicant would not face a real chance of harm. The Tribunal assessed the applicant’s particular claims and assessed them in the context of all of the evidence that was before it.
As the Court has noted above, the determinative issue here related to the credibility and genuineness of the applicant’s claims. The Tribunal’s findings that the claims were not genuine formed the basis of its ultimate finding that there was no real chance of the applicant facing harm. There was no error in that finding (as the Court has explained at [32] above). Overall, the Tribunal’s findings had a logical and intelligible basis.
Ground 4, accordingly, is dismissed.
Conclusion
The applicant has failed to identify any jurisdictional error in the Tribunal’s decision. The Court has otherwise reviewed the Tribunal’s decision and is unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 14 May 2020
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
0
12
3