FEDERAL COURT OF AUSTRALIA

DDN16 v Minister for Home Affairs [2018] FCA 1697

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth), the appeal is dismissed.

2.    The appellant pay the costs of the first respondent, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This appeal was listed for hearing at 10:15AM this morning. The appellant was not present and there had been no communications from him. I delayed coming onto the bench until 10:30AM so as to give the appellant more time if he was running late. At 10:30AM the appeal was called and the appellant remained absent. In those circumstances, the legal representative of the respondent Minister applied for an order that the appeal be dismissed under r 36.75(1)(a)(i) of the Federal Court Rules 2011 (Cth). I granted that application. I also indicated that I would give my reasons in relation to the substantive matter against the event that there was an application to set aside the order under r 36.75(2). What follows are my reasons, albeit given in the absence of submissions, either written or oral, on behalf of the appellant.

2    This appeal is from the judgment of the Federal Circuit Court of Australia given on 9 May 2018, dismissing the appellant’s application for judicial review of the decision of the Administrative Appeals Tribunal made on 5 October 2016.

3    The appellant is a citizen of Malaysia who arrived in Australia on 14 September 2012 on an Electronic Travel Authority (subclass 976) visa which expired three months later, on 15 December 2012. The appellant remained in Australia but without a valid visa until he lodged an application for a Protection (Class XA) visa on 28 September 2015.

4    In short, the appellant claims to fear harm in Malaysia due to a dispute with an Indian gang in his home district.

The course of decision-making

5    A delegate of the Minister refused to grant the appellant a protection visa on 25 January 2016.

6    On 18 February 2016, a delegate of the Minister signed a certificate and notification regarding the disclosure of certain information under s 438 of the Migration Act 1958 (Cth) in respect of folio 42 on the file which contained documents held by the Department in respect of the appellant’s protection visa application.

7    The appellant applied to the Tribunal for review of the delegate’s decision. He appeared at a hearing before the Tribunal on 30 September 2016 to give evidence and make submissions, with the assistance of an interpreter in the Malay language.

8    On 5 October 2016, the Tribunal affirmed the decision not to grant the appellant a protection visa.

9    On 24 October 2016, the appellant filed an application in the Federal Circuit Court for judicial review of the Tribunal’s decision, under s 476 of the Migration Act.

10    There was a final hearing on 9 May 2018 at the conclusion of which the primary judge delivered ex tempore reasons for judgment dismissing the application. Those reasons were subsequently published in writing.

Notice of appeal

11    On 11 May 2018, the appellant filed a notice of appeal in this Court.

12    The grounds in that notice of appeal are in a common form, as follows:

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claims and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

13    The respondent Minister submits that neither of these grounds were raised before the Federal Circuit Court. The grounds of the application for judicial review in the Federal Circuit Court were (as written):

1. The decision of the Tribunal

2. is effected by an error of law

3. denied the applicant procedural fairness.

The Tribunal’s decision

14    The Tribunal, at [10], identified the issue in the case as whether the appellant was entitled to protection in Australia on refugee grounds or, in the event that he was not, on complementary protection grounds. Another significant issue, the Tribunal said, was the appellant’s credibility as a witness.

15    In his oral evidence to the Tribunal, the appellant claimed that when he was at school he was the target of racial abuse by some fellow pupils who were ethnic Indians. He claimed his father took him away from the school and helped him to move to another part of Malaysia to get away from these Indian students. He said that when he returned to his hometown, the students were there waiting for him. He also claimed his father made a report to the police about the Indian students taunting him at school about a week before they both came to Australia.

16    The appellant claimed that two or three months after they came to Australia, his father was back in his home district running his shop when Indians came to the shop asking after the appellant. The appellant claimed the students vandalised the shop and demanded money. The appellant said that these erstwhile teenagers were now part of an Indian gang that was harassing his father in the shop and demanding that his father produce the appellant so that they could punish him for the “argument” they had back in their school days.

17    The Tribunal put to the appellant that it seemed implausible that authorities in Selangor, which is a predominantly Muslim state in Malaysia, would ignore reports of criminal activity by minority Indian gangs if they were reported. The appellant did not provide a satisfactory response to this.

18    The appellant said to the Tribunal he could not relocate within Malaysia as the gang his fellow pupils had joined had networks all over the country. However, the Tribunal said, the appellant said he relocated to a district about 50 kilometres away from his home district and did not suggest he was pursued there; rather he said the gang was waiting for him after he returned to his home district.

19    The Tribunal said that the claim about the appellant being taken away from the school did not appear to sit with the claim about the police report about activities at that school being lodged with the police a week before he left Malaysia. The claim about relocating away from the appellant’s home district did not appear to sit with the evidence in the protection visa application form about staying at the same address and same school right up to September 2012.

20    The Tribunal referred the appellant to claims he made in the statement attached to his protection visa application form and drew his attention to apparent inconsistencies in his overall story. In his protection visa application form the appellant said that the Indians had first tried to persuade him to join the group, an act which suggested they first wanted to be friends with him. In response, the appellant said they kept harassing him. He then changed the evidence he had given to the Tribunal at the hearing, saying that because he refused to be their friend they refused to let him go. The Tribunal indicated to him that the Tribunal found it hard to believe that an Indian clique or gang with Hindu Tamil names calling him “Paki” would ever have been interested in having him join their group.

21    The Tribunal put to the appellant that in the statement attached to his protection visa application form he claimed his father never raised this matter with the police because his father viewed the police as being involved with the gang. This, the Tribunal said, was a clear inconsistency which the appellant failed to resolve.

22    The Tribunal asked the appellant about his apparent delay in lodging his protection visa application as it seemed inconsistent with genuine fear of relevant harm in Malaysia. The appellant said he did not know he could apply for protection until around the time he applied.

23    The Tribunal asked the appellant about what he did since coming to Australia. He said he arrived in Melbourne and moved to Griffith, New South Wales, within a few days because he “didn’t have money”. The Tribunal asked the appellant if he had been working in Griffith and he denied he had been. He later said he had been doing casual labour in Griffiths. The Tribunal said that the appellant’s evidence about what he did after arrival, and why, struck the Tribunal as being inconsistent, muddled and subject to revision and evident improvisation. The Tribunal said its overall impression was that the appellant moved quickly to Griffith to work illegally because he was interested in doing this and did not make any effort to enquire about applying for protection, the reasonable inference here being that he was not interested.

24    The appellant indicated that he had no other fears of harm in Malaysia.

25    The Tribunal found on the evidence that all of the appellant’s account of his and his family’s having been threatened with serious harm by Indian students and gang members in Malaysia and being unable to obtain state protection from such treatment was a fabrication. The Tribunal found the appellant’s claims about engaging, and his reasons for not engaging, the police were inconsistent and very damaging to his case. The Tribunal gave weight to the many inconsistencies and implausible claims including those explaining his delay in seeking asylum in Australia. The Tribunal said the appellant did not satisfactorily explain his very long delay in applying for protection. The Tribunal found that the appellant was a comprehensively unreliable witness. The Tribunal was not satisfied that he had genuine fear of persecution in Malaysia.

26    The Tribunal said that the appellant’s claims to complementary protection were essentially the same claims he had made in his application for protection as a refugee. On the appellant’s overwhelmingly implausible and inconsistent evidence, the Tribunal found that it did not have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there was a real risk that the appellant would suffer significant harm.

The primary judge’s decision

27    The primary judge said that the grounds of the application to the Federal Circuit Court made bare assertions that did not identify any error capable of review by that Court. Further, they were unsupported by any particulars or written or oral submissions.

28    The primary judge said that it was well established that the Tribunal was not required to accept uncritically any and all claims made by an applicant. Nor did the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out.

29    The primary judge held that the Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness, nor were they reached without a logical or probative basis or unreasonably.

30    The primary judge said that none of the complaints suggested in the grounds that the Tribunal denied the appellant procedural fairness was made out.

31    The primary judge then considered the s 438 certificate. The primary judge said that the Tribunal’s decision record did not identify the existence of the certificate or indicate that it was disclosed to the appellant. The certificate was invalid because it was based on the fact that the document to which it related contained information relating to an “internal working document and business affairs” and such information had never been a necessary or sufficient basis for public interest immunity as contemplated by s 438.

32    The primary judge said that the issuing of such a certificate, even though unnecessary and invalid, was not sufficient to establish jurisdictional error on the part of the Tribunal because there was no basis upon which it could be found that the Tribunal acted on the certificate or denied the appellant procedural fairness or led to the appellant suffering any practical injustice. The primary judge accepted that the most compelling inference to draw from the absence of reference to the certificate in the Tribunal’s reasons was that the Tribunal did not consider that folio to be material to the review. It could not have impacted on the outcome of the Tribunal’s review because it related only to the appellant’s identity, and the appellant’s claimed identity was accepted by the Tribunal. No substantive issue arose from the non-disclosure of the document.

33    The primary judge concluded that the Tribunal’s decision was not affected by jurisdictional error and dismissed the application for judicial review of the Tribunal’s decision.

The parties’ submissions

34    The appellant filed no written submissions. The appellant was absent when the appeal was called on for hearing so he made no oral submissions.

35    As I have said, the respondent Minister submitted that neither of the grounds in the notice of appeal to this Court were raised before the Federal Circuit Court. The appellant must therefore establish that it was expedient in the interests of justice to allow such grounds to be raised (see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74; 129 FCR 168 at [26]; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]).

36    The Minister submitted that the Court was also required to consider the merits sought to be raised by the ground (see VAAC at [27]). In this case, both of the proposed grounds were bare assertions of error that, without particulars, did not raise any arguable appellable error in the primary judge’s decision or jurisdictional error in the Tribunal’s decision. The Minister therefore submitted that it was not expedient in the interests of justice to permit these proposed grounds to be raised for the first time on appeal.

37    The Minister further submitted that no appellable error arose out of the primary judge’s findings with respect to the s 438 certificate. It was accepted that the certificate was invalid. However viewed objectively, the certificate and the document it concerned—folio 42 of file number CLF2015/60883—was wholly irrelevant and the appellant suffered no disadvantage by not being aware of this material (see Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194; 253 FCR 1; Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197; 253 FCR 21; and BEG15 v Minister for Immigration and Border Protection [2017] FCAFC 198; 253 FCR 36. The Minister noted that the High Court heard and reserved judgment in appeals in CQZ15 and BEG15 on 10 September 2018.

38    The Minister submitted that in the present case, the s 438 certificate and folio 42 of file number CLF2015/60883 could have had no impact on the Tribunal’s assessment of the appellant’s protection claims. In particular, the document (an internal document titled ‘Identification test: Protection visa applicants’) had no relevance to that assessment and the Tribunal accepted the appellant’s claimed identity. The Minister submitted that no jurisdictional error was revealed with respect to this issue, and therefore no appellable error arose out of the primary judge’s findings with respect to that certificate.

Consideration

39    The grounds of appeal are written in a common form and bear no relation to the reasons of the Tribunal or of the primary judge.

40    In so far as the appellant seeks to establish error on the part of the primary judge by reference to grounds not raised before her Honour, I am not satisfied that it is expedient in the interests of justice to allow such grounds to be raised: see VAAC at [26] and VUAX at [46]. The proposed grounds self-evidently have no merit.

41    As to the grounds which were argued before the primary judge apparently relating to the Tribunal’s fact finding as to the appellant’s credibility, I see no error in the reasoning of the primary judge and the appellant identified none.

42    It is not clear whether the s 438 issue was taken by the appellant before the primary judge. I understand it was raised by the legal representative of the respondent Minister. In any event, her Honour considered the issue. I see no error in her Honour’s conclusions in relation to the s 438 certificate. That is, the Tribunal did not act on the certificate and did not deny the appellant procedural fairness. The certificate did not lead to the appellant suffering any practical injustice. I see no error in the acceptance by the primary judge that the most compelling inference to draw from the absence of reference to the certificate in the Tribunal’s reasons was that the Tribunal did not consider folio 42 to be material to the review. It could not have impacted on the outcome of the Tribunal’s review because it related only to the appellant’s identity, and the appellant’s identity was accepted by the Tribunal. No substantive issue arose from the non-disclosure of the document.

Conclusion and orders

43    The appeal is dismissed, with costs.

Associate:

Dated:    7 November 2018