FEDERAL COURT OF AUSTRALIA

EFI17 v Minister for Immigration and Border Protection [2018] FCA 1776

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal be dismissed.

2.    The applicant pay the costs of the first respondent, such costs to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

DAVIES J:

1    The applicant has applied for leave to appeal the decision of the Federal Circuit Court of Australia (“Federal Circuit Court”) (EFI17 v Minister for Immigration & Anor [2018] FCCA 1693) dismissing his show cause application in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. The Federal Circuit Court dismissed the show cause application pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”) holding that it was not satisfied that the application raised an arguable case of jurisdictional error by the Tribunal. Leave to appeal is required because the dismissal under r 44.12(1)(a) is interlocutory: r 44.12(2).

2    The applicant is a citizen of Malaysia who claimed to fear harm in Malaysia by reason of his former affiliation with a gang. The applicant claimed that:

(a)    he had been beaten, blackmailed and threatened because he left the gang;

(b)    he believed the gang, and in particular the leader, was holding a grudge towards him and that he would be killed if he did not agree to rejoin the gang if he returned to Malaysia;

(c)    he had tried to move to some other parts of Malaysia but the gang members found him and continued to blackmail him;

(d)    the authorities could not protect him because of the gang’s strong influence over them which was not limited only to Malaysia but also extended to the neighbouring countries; and

(e)    he feared he would be harmed or killed by gang members if he returned to Malaysia.

3    The Tribunal rejected the applicant’s claims, finding that the applicant was not a credible witness. The Tribunal was not satisfied that the applicant ever was, or is now, of adverse interest to gang members in Malaysia. The Tribunal made the following key findings:

(a)    the timing of the applicant’s departure from Malaysia undermined the credibility of his claims, namely it occurred over ten months after he claimed he left the gang during which period he travelled to Thailand and then voluntarily returned to Malaysia, which the Tribunal also considered undermined his claim that he was afraid that gangsters would beat him or kill him if he returned to Malaysia;

(b)    the Tribunal found the applicant’s evidence that he had relocated to another part of Malaysia in the hope of avoiding the gang members but that the gangsters managed to find him and he was beaten by seven or eight gangsters in a marketplace to be highly improbable and unpersuasive, finding it difficult to understand why the gang members would have pursued him to a place which was over five hours from Kuala Lumpur and beaten him up and why, if that happened the applicant relocated to another place in Malaysia which was only about a thirty minute drive from Kuala Lumpur;

(c)    the applicant’s voluntary return to Malaysia from Thailand, having regard to his evidence that he went to Thailand to get help from a friend and look for a place to live but claimed that he returned to Malaysia because his friend was not able to help him. The Tribunal found that evidence unpersuasive and considered that, if the applicant had genuinely feared being killed or beaten by gangsters in Malaysia, he would have tried to survive in Thailand without the assistance of the friend rather than return to Malaysia;

(d)    other aspects of the applicant’s evidence also struck the Tribunal as vague, improbable and lacking in detail such as his evidence about telling the gang leader in person that he intended to leave the gang;

(e)    whilst the Tribunal accepted that it was possible that the applicant had been involved in gangs in Malaysia, it did not accept that the applicant decided to leave Malaysia because he was of adverse interest to gangsters, that he had left his gang after a friend was killed in a brawl or that he was ever beaten, threatened, harassed or harmed in any way by gangsters; and

(f)    the Tribunal did not accept that the applicant’s physical injuries or scars were inflicted by gangsters as claimed having regard to its conclusions about the credibility of his evidence.

4    The Tribunal accordingly rejected the applicant’s claims and found he was not a refugee as defined by s 5H of the Migration Act 1958 (Cth) (“the Act”) and for the same reasons was not satisfied that the applicant met the complementary protection criterion.

5    In his application for review, the applicant raised two grounds of review as follows:

1.    Need to defence myself because of the longterm harmfulness, injuries, mental torture, traumatise because of beaten and threatened kill by the gangster.

2.    No safety places in Malaysia for me to survive and works because always be followed and threatened kill by the gangsters.

(errors in original)

6    The applicant did not file written submissions supporting his application and the primary judge invited oral submissions from him. The reasons of the primary judge record that the applicant essentially took issue with the merits of the Tribunal decision, which the primary judge correctly stated was beyond the scope of the Court proceeding. The primary judge also found that the conclusions reached by the Tribunal were open to it on the material before it, the process followed by the Tribunal was a fair one and the Tribunal had complied with its procedural fairness obligations under Div 4 of Pt 7 of the Act. The primary judge concluded that the applicant had failed to demonstrate an arguable case of jurisdictional error by the Tribunal and consequently ordered that the application be dismissed pursuant to r 44.12(1)(a) of the Rules.

7    The applicant’s application for leave to appeal contains the following grounds:

1.    My case was wrongly judged because of the factors of inaccuracy of description information by the interpreter.

2.    I object to what the immigration authorities did not accept about my participation with the group of gangsters and my trip travel to Australia to seek a protection from being murdered.

3.    Religious issue is the other reason for my application to seek a protection from the Australia Government.

4.    I object to the decisions made by Immigration Protection that claimed that I am not a person eligible for the protection.

5.    Lack of information detail given in the Federal Circuit Court due to financial hardship to have any legal aid assistance/services.

    (errors in original)

8    A proposed notice of appeal (served but not filed) raised similar grounds.

Allegation of Inaccurate Interpretation

9    This ground was not raised below and leave of the Court is required for the applicant to advance this ground now. The applicant filed no evidence to support his ground of inadequate interpretation, such as the transcript of the hearing before the Tribunal nor provided any details of the asserted inaccuracies in relation to the interpretation of his evidence. In the absence of any detail concerning the asserted inaccuracies to support his claim, this ground cannot give rise to any reasonable basis to find any error in the conduct of the hearing before the Tribunal.

Grounds Challenging the Tribunal’s Factual Findings or Conclusions

10    Insofar as the applicant seeks to challenge the factual findings of the Tribunal, the grounds invite the Court to engage in impermissible merits review of the applicant’s protection visa application. Further, as found by the primary judge, a review of the Tribunal’s reasons do not disclose any jurisdictional error on the part of the Tribunal in rejecting the applicant’s claims. The reasons disclose that the Tribunal did not accept the applicant’s account on key factual issues largely because the Tribunal considered that his version of events on those key matters was unlikely and not plausible as to why he had decided to leave the gang, why he left Kuala Lumpur, why he returned to a place near to Kuala Lumpur although on his case he was of adverse interest to the gangsters and was beaten, threatened and harassed by them, why he voluntarily returned to Malaysia after travelling to Thailand and the timing of his departure from Malaysia. Adverse credit findings can be tainted by jurisdictional error (ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [83]) but the reasons of the Tribunal disclose a cogent, rational and logical basis for the adverse credibility findings. It was open on the evidence for the Tribunal to find, for the reasons given, that the applicant’s account was improbable and unpersuasive. The available material does not disclose any discernible jurisdictional error in the Tribunal’s adverse credit findings.

Protection Claim on the Ground of Religion

11    Ground 3 not only raises a ground that was not relied on in the application for review, it also raises a claim that was not made in his protection visa or made to the Tribunal. Accordingly, this ground has no merit.

Lack of Legal Aid

12    It is undoubted that courts have an overriding duty to ensure that the trial is fair and that self-represented litigants do not suffer disadvantage as a result of their status as self-represented: SZRUR v Minister for Immigration and Border Protection (2013) 216 FCR 445 at 452–454 [37] citing Hamod v State of New South Wales [2011] NSWCA 375 at [309]–[316]. However, a litigant does not have an absolute right to legal representation and in civil cases procedural fairness does not require it: SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 and the cases cited at [24]. The reasons for decision of the primary judge disclose that the applicant was given opportunity to present his case and that the primary judge gave consideration to it. Furthermore, the applicant has not particularised nor demonstrated any unfairness or other potential error in relation to the conduct of the proceedings below resulting from his status as a self-represented litigant. This ground also lacks merit.

Conclusion

13    Accordingly, there would be no utility in granting leave to appeal and the application must be dismissed.

Adjournment application

14    At the commencement of the hearing of his application for leave to appeal, the applicant sought an adjournment to enable him to obtain legal representation. The applicant informed the Court that he had approached two sets of lawyers, but that he presently does not have the financial ability to pay their legal fees. However, he stated that he expected that he will have sufficient funds in three to four months through savings from his work. I dismissed that adjournment application, giving the following reasons.

15    The applicant has been on notice for a considerable period of time that his application was to be heard. The applicant filed his application for leave to appeal in July 2018 and timetabling orders for the hearing of his application were made on 3 August 2018. However, he did not put either the Court or the Minister on notice of his intention to apply for an adjournment and instead made an oral application at the commencement of the hearing. He has not supported his application with any, let alone any detailed, evidence explaining the steps that he has taken to obtain legal assistance, or more particularly any evidence upon which the Court may be satisfied that there would be any utility in granting an adjournment so as to enable the applicant to engage a lawyer. The Court has nothing before it to support the applicant’s assertion that he will have sufficient funds in three to four months to be able to afford legal representation.

16    Given the very late time at which the application has been made, and that it is wholly unsupported by any probative evidence giving the Court confidence that there is a reasonable likelihood that the applicant would obtain legal representation if an adjournment was granted and within the time frame asserted, the Court is not persuaded that there would be utility in granting the adjournment and the application is refused.

Associate:    

Dated:    19 November 2018