Federal Court of Australia

AAA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1541

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration, Citizenship and Multicultural Affairs

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal, as agreed or taxed.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The appellant is a male citizen of Malaysia who first arrived in Australia in March 2016 on a Visitor (Subclass 601) visa. On 22 December 2015, he lodged an application for a Protection (Class XA) visa, claiming to fear harm because he and his family opposed the Malaysian government, were critical of its policies and were likely to be the victims of persecution.

2    On 14 March 2016, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs refused to grant the appellant a protection visa. The appellant then applied to the Administrative Appeals Tribunal for a review of the delegate’s decision. Hearings were conducted before the Tribunal on 16 and 19 December 2016 at which the appellant appeared and presented arguments on his own behalf. On 19 December 2016 the Tribunal affirmed the decision of the delegate.

3    The appellant then filed an application for judicial review of the decision of the Tribunal in the Federal Circuit Court of Australia (as the Federal Circuit and Family Court of Australia was then known) (FCCA). That application was dismissed on 11 February 2020: AAA17 v Minister for Immigration and Anor [2020] FCCA 233.

4    The appellant then filed an application for an extension of time within which to file a notice of appeal from the decision of the FCCA, his application being filed one day after the expiry of the period prescribed by r 36.03(a)(i) of the Federal Court Rules 2011 (Cth) (extension application). On 26 June 2020, consent directions were made by a Registrar of the Court extending the time for the appellant to file his notice of appeal, and ordering that the draft notice of appeal filed with his extension application be treated as his Notice of Appeal.

5    The consent directions provided for the appellant to file and serve any written submissions no later than 10 days before the hearing date. The appellant filed no written submissions, but appeared at the hearing and made submissions on his own behalf with the assistance of an interpreter. The Minister filed written submissions and was represented at the hearing by Mills Oakley, solicitors.

6    The grounds of appeal relied upon by the appellant are as follows (as written):

(1)    There exists wrong application of law. The risk that I will be harmed in Malaysia is not properly considered. Information that was not relevant was considered.

(2)    There exists procedural unfairness. Whether my case was treated fairly is not considered properly.

2.    BACKGROUND

7    The appellant set out in a personal statement dated 20 December 2015 the claims that he advanced, which may be summarised as follows:

(1)    He and his family opposed Malaysian Government policies, as a result of which the government persecuted them. His father was imprisoned and the appellant faced threats.

(2)    His father often criticised the government and as a result police monitored him near his home. In September 2014, the appellant came to Australia on a student visa.

(3)    In early November 2015, his father organised residents to protest against the government for various rates price rises. On 2 December 2015, the protest started involving more than 200 people. They carried signs and shouted slogans.

(4)    The appellant and his father “wrote a protest announcement together” and his father submitted it to the Government. Three paragraphs of the protest announcement are quoted in the appellant’s statement.

(5)    On 5 December 2015, the appellant’s father was arrested at his home and detained. He was beaten. He refused to disclose the names of the organisers of the protest and was transferred to a detention centre where he was brutally beaten and shocked with electric batons. His family only later discovered that he had been detained.

(6)    On 14 December 2015, his family visited his father, who told the appellant that he must not return to Malaysia.

(7)    The Malaysian Government wants to put all opponents in prison and with torture and persecution they may die there.

8    In its decision, the Tribunal notes that the appellant gave evidence at the hearing that he first visited Australia in March 2014 looking for schools at which to study and that in September 2014 he returned to Australia on a student visa to study in Melbourne. He ran into financial troubles and ceased his studies in order to work. He did not realise that by working more than 20 hours a week he was in breach of his visa conditions. His information about his father’s arrest and mistreatment came from his family in Malaysia. He could not say why the authorities would suspect him of involvement with the protest instigated by his father and was not sure whether the authorities knew that he was involved in writing the protest announcement.

9    The Tribunal records at [26] that it put to the appellant pursuant to s 424AA of the Migration Act 1958 (Cth), first, that there was an inconsistency between his statement and his oral evidence in that in his oral evidence he said that he did not know why his father had been arrested whereas in his written statement he asserted that it was because he had organised a protest. The appellant adhered to his oral evidence.

10    Secondly, that it had found an article on the internet in which the exact words from the protest announcement quoted in his statement were used, the article being published in Economy magazine in December 2013. The Tribunal decision states that it invited the appellant to comment on or respond to this information and advised him of his rights to have additional time and/or provide comments in writing. The Tribunal records the appellant’s response at [28]:

The applicant responded to the second point and said that his agent wrote his statement of claims. He is aware that the statement of claims is not true. However, his father was arrested and beaten as he claimed. He doesn’t know the reasons for his detention and mistreatment. There is no direct connection to the applicant. He is just worried that what happened to his father will happen to him.

11    The Tribunal relevantly also recorded at [35] and [36]:

35.    … The article not only included word for word what the applicant claimed he had written in the protest announcement but also the bulk of his claim was directly quoted from the article.

36.    When this information was put to the applicant he admitted that his claim about his involvement in the protest announcement and his father’s involvement in the specific protest referred to was untrue. However, the applicant stated that his claim that his father had been arrested, detained and physically mistreated was true. He was unable to provide any further details about the reasons for his father’s arrest or why he, the applicant, would be at all associated or implicated in anything that happened to his father.

12    The Tribunal relevantly concluded that the appellant was not a witness of truth having regard to his admission about the falsity of the evidence in relation to the protest announcement and his father’s involvement at the protest and also taking into account the fact that he acted in breach of the conditions of his student visa by working in excess of 20 hours a week without contacting the Minister’s department. It rejected the appellant’s claim that his father was arrested, detained and physically mistreated in December 2015 noting his admission that this was false. The Tribunal also rejected his claim that he had any connections or associations with his father’s claimed political activities and ultimately rejected the appellant’s claims that either he or his father were of adverse interest to the authorities in Malaysia.

3.    THE APPEAL

13    At the hearing, the appellant made the submission that he had not been provided with a copy of the Economy article relied upon by the Tribunal. He further submitted that his statement had not been prepared by him, but by a friend. He otherwise did not elaborate upon his grounds of appeal.

14    Ground (1) was not raised before the FCCA. It contains no particulars of any facts relevant to the appellant’s case or the decision of the Tribunal or the primary judge. The contention that the risk that the appellant would be harmed in Malaysia was not properly considered is plainly incorrect, having regard to the reasoning given by the Tribunal. I do not consider that this is an appropriate case in which to grant leave to the appellant to raise this ground for the first time on appeal.

15    Ground (2) was also not raised before the primary judge. Again it is an unparticularised allegation, this time as to procedural unfairness. However, as the appellant is self-represented I will treat this ground as relevant to the appellant’s allegation, addressed orally, that he was not shown a copy of the Economy article.

16    In this regard the primary judge noted that the contention advanced by the appellant was that the Tribunal had failed to provide him with a copy of the Economy article and that its decision was arbitrary.

17    The primary judge concluded that the Tribunal had not erred in the discharge of its obligations under ss 424A and 424AA of the Act, noting that despite having been given an opportunity to do so the appellant had not put a transcript of the Tribunal hearing into evidence before the FCCA. The only evidence of what relevantly occurred in the Tribunal is what is reported in the Tribunal decision record, which reveals that the Tribunal utilised the mechanism available to it under s 424AA to discharge orally its obligation under s 424A of the Act. The primary judge noted that while in some circumstances the proper or meaningful discharge of the Tribunal’s obligation in s 424A(1) of the Act may require the provision of the source document, the present is not such a case, where the information relied upon was a “word for word” copy of the Economy article into his statement. The primary judge further noted:

24.    The Tribunal’s analysis and decision did not rely on the wording of the information that, in the circumstances presented, was not known to the applicant. The relevance of the information to the Tribunal’s decision was that what the applicant had subsequently claimed was “word for word” what was written in the article. The Tribunal made this clear to the applicant at the hearing.

25.    It is difficult to see how the provision of the actual article would have given the applicant any further particularity about the information than what he had already put in his own claims.

26.    Further, the applicant, in response, made no claim that he had no knowledge of this article. Rather, the provision of information to him resulted in his own evidence that his (and his fathers) claimed involvement in the protest, was not true ([36] at CB 109). No legal error is revealed in the circumstances.

18    Section 424A(1) of the Act provides:

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

19    Section 424AA(1) provides:

(1)    If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    if the Tribunal does so—the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

20    These sections operate in a complementary manner, in that s 424A(1) prescribes what the Tribunal must do and s 424AA is facultative and provides one way in which the Tribunal can satisfy the substance of what is required of it under s 424A(1): SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; 174 FCR 415 at [86]-[87], [90] and [104] (Tracey and Foster JJ). In MZYFH v Minister for Immigration and Citizenship [2010] FCA 559; 188 FCR 151 Bromberg J observed at [34] that:

As the Full Court said in SZMCD at [71]-[72], the same policy and purpose underpins s 424AA as that which underpins s 424A. Relevantly, the policy and purpose is that the Tribunal should be compelled to:

(a)    put the visa applicant on fair notice of critical matters of concern to the Tribunal;

(b)    ensure that the visa applicant understands the significance of those matters to the decision under review; and

(c)    give the applicant a reasonable opportunity to comment on or to respond to those matters of concern.

21    As the appellant did not put the transcript of the Tribunal hearing into evidence before the FCCA, despite being afforded the opportunity to do so, the only evidence of what relevantly occurred is what is reported in the Tribunal’s written decision. Based on the Tribunal’s decision I am satisfied that:

(a)    the oral disclosure of the contents of the Economy article by the Tribunal pursuant to s 424AA of the Act was adequate to inform the appellant of the case that he had to meet and provided him with an opportunity to address that case, namely that the story offered by the appellant about the drafting of the protest announcement and his father’s attendance at the protest were a fabrication; and

(b)    there can be no doubt about this because the appellant himself conceded that this was the case.

22    In the circumstances ground (2), insofar as it relies on the alleged failure on the part to provide a copy of the Economy article to the appellant must be dismissed. Insofar as it contends that the Tribunal otherwise failed to afford the appellant with procedural fairness it too must be dismissed.

4.    DISPOSITION

23    For the reasons set out above the appeal must be dismissed. The appellant must pay the first respondent’s costs of the appeal.

Associate:

Dated:    19 December 2022