AIK17 v Minister for Immigration and Border Protection

Consideration 9 Rule 44.12 provides that the Federal Circuit Court may dismiss an application if it is not satisfied that the application has raised an arguable case for the relief claimed, and that any such dismissal is interlocutory. To obtain leave, the applicant must show that there is sufficient doubt regarding the correctness of the decision of the Federal Circuit Court and that the applicant would suffer substantial injustice if the Court refused the application for leave to appeal assuming the Federal Circuit Court's decision to be wrong. It is the former requirement which requires consideration because the applicant would suffer substantial injustice if leave is not granted and the Federal Circuit Court's decision is assumed to be wrong. 10 Having regard to the decision of Federal Circuit Court, I am not satisfied that the primary judge's reasons or the order for dismissal are subject to any doubt, so I must refuse leave to appeal. 11 The applicant is a Malaysian citizen of Chinese ethnicity. He arrived in Australia in April 2015, and lodged an application for a Protection (Class XA) visa approximately three months later. He claimed to fear harm if he returned to Malaysia as a result of his and his uncle's involvement in protests in Tawau against logging activity associated with the "Tawau Green Energy project". 12 On 22 March 2016, the Minister refused to grant the applicant a protection visa, a decision subsequently affirmed by the Administrative Appeals Tribunal on 4 January 2017. 13 The Tribunal concluded at [35] of its statement of reasons that the applicant was not a credible witness. As a result, the Tribunal was not satisfied that the applicant or any of his extended family had participated in any protests or were of specific interest to the Malaysian authorities. Accordingly, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations under s 36(2)(a) or 36(2)(aa) of the Act. 14 Following the decision of the Tribunal, the applicant sought judicial review of the Tribunal's decision in the Federal Circuit Court. The primary judge recorded the grounds relied upon by the applicant at [8] of his reasons: 1. AAT officer asked me that was I working at the moment, and I answered that I was working in the factory. Later they asked me did I work when I just arrived in Australia, and I answered yes. I would like to explain further that I knew I did not have work permission when I arrived in Australia, so I just helped my friend and earned some pocket money. However, AAT officer did not give me any opportunity to explain. They thought I was not honest just because of my working for my friend to earn some pocket money. Although I told the truth, yet AAT officer doubted what I said, which was not reasonable seriously. 2. I have told AAT officer that I was not interested in the Malaysian authorities. What I meant was that I saw the serious corruption of Malaysian government, and I did not believe it would change its current situation, so I attended the anti-government activity. However, AAT officer thought although I was not interested in the Malaysian authorities, why I had to attend the anti-government activity. I have explained the reason that I was so disappointed with the Malaysian government. In addition, my friends and families were involved in it actually. However, AAT officer doubted what I said, and could not provide any evidence, so AAT did not understand and distorted the truth seriously. 3. AAT though if I came back to Malaysia, I could not be persecuted, but they could not give me any compelling reason. Malaysia is an unlawful government, and they discriminated Chinese Malaysians very much. We could not live in that country. Once I come back, I must be persecuted, and even to die. However, AAT officer doubted me very much, but they could not give me any reason. 4. AAT made refusal decision within 2 months, so I doubted that have they investigated the corruption of Malaysian government. AAT made the decision to my case so quick, so I doubted how they judged my case so rush and their work attitude without any carefulness, so their behavior is irresponsible. 15 The primary judge concluded (correctly in my view) that grounds 1 to 3 invited an impermissible review of the merits of the Tribunal's decision. The primary judge noted at [18]: The Tribunal was not obliged to uncritically accept the applicant's claims and the weight to be given to those claims and evidence was a matter for the Tribunal as part of its fact-finding function. The Tribunal made adverse credibility findings in this case, which were open to it on the material before it and for the reasons it gave. 16 I agree with the primary judge. Neither the Federal Circuit Court nor this Court has the power to review the merits of the decision refusing the grant of the applicant's protection visa. The grounds asserted by the applicant in the Federal Circuit Court did not disclose any legal error in the Tribunal's decision and the primary judge was correct to reject them. 17 The fourth ground is capable of founding legal error but nothing in the available material would support the inference that the Tribunal did anything other than discharge its functions according to law. As the primary judge noted at [19] this ground lacked substance, and that, in any event the Tribunal was "under no duty to make further inquiries beyond the material placed before it by the applicant". The primary judge was correct to conclude that it was a matter for the applicant to support his claims before the Tribunal, not for the Tribunal to undertake further investigations. 18 I note also that the primary judge referred at [20] to a purported certificate issued by the Minister's delegate under s 438 of the Migration Act. The documents covered by the certificate are a "Disclosure Decision Checklist" and an "Identification Test: Protection Visa Applicants". There was no evidence before the Federal Circuit Court to suggest that the applicant was invited to comment on the certificate by the Tribunal. The primary judge concluded at [26] that there was no denial of procedural fairness from a failure to disclose the existence of the certificate to the applicant, as the documents covered by it "could not have had any material impact on the Tribunal's consideration of the issues on the review". 19 The primary judge gave clear and cogent reasons at [21]-[26] explaining why the non-disclosure of the certificate did not result in a denial of procedural fairness in this case. I have seen the documents covered by the certificate. I agree with the finding of the primary judge that the documents lacked any connection to the applicant's claims. Further, it seems apparent that the documents had no bearing on the Tribunal's decision. For these reasons, consistent with the reasoning in SZMTA, no jurisdictional error is established. 20 Although not raised by the applicant in the present application, I also note that at the hearing on 13 November 2017 the applicant drew the Federal Circuit Court's attention to orders made by the Registrar listing the matter for a show cause hearing on 13 November 2019. The primary judge noted that the 2019 date was clearly an error, and that at least two letters were sent to the applicant before the hearing reminding him that the hearing date was 13 November 2017 and that he was required to attend Court. As is also apparent, the applicant in fact attended the Court on 13 November 2017 but objected to the hearing proceeding. The primary judge proceeded with the hearing because, as he explained at [14], the applicant's only reason for objecting to the hearing on 13 November 2017 was that he may be deprived the opportunity to stay in Australia for two more years. The primary judge did not err in refusing to adjourn the hearing. 21 In this Court, the applicant's application for leave to appeal dated 21 November 2017 contains three grounds: 1. AAT underestimated my risk of being persecuted by the Malaysia authority. 2. AAT did not examine the risk of the persecution I will face if return to Malaysia. 3. AAT has bias against me as I was deprived of the benefits of doubts. 22 As the Minister correctly notes, these grounds do not assert any legal error on behalf of the primary judge. Grounds 1 and 2 again invite me to review the merits of the Tribunal's decision - which, as noted, I have no power to do. Further, the Tribunal considered the risks of the applicant being persecuted upon returning to Malaysia and concluded that neither he nor members of his extended family were of interest to the Malaysian authorities. This finding was supported by responses given by the applicant to direct questions about details of his participation in protests and whether he was of interest to the Malaysian authorities. In light of this, grounds 1 and 2 do not give rise to any doubt about the correctness of the primary judge's orders. 23 Ground 3 asserts bias on behalf of the Tribunal. There was nothing before the primary judge and there is nothing before me to support any conclusion of bias, be it apprehended or actual bias. The ground is without any foundation. 24 During the first hearing before me, the applicant said only that he knows mistakes were made. He said this was because the hearing date before the Federal Circuit Court was meant to be 13 November 2019. I have dealt with this issue above. The applicant said nothing else in support of his application. 25 At the resumed hearing on 13 August 2019 the applicant sought leave to file a draft amended notice of appeal and an outline of submissions. The proposed grounds of appeal were now: 1. AAT ask me irrelevant question. AAT ask me if I was working when I on visitor visa. This question got nothing to do with my Protection visa application. Judge make error not see this problem. 2. AAT biased or appear biased against me. AAT asked me if Malaysian Authority interested in me. I mistake thinking AAT asked me if I interested in Malaysian Authorities so I answered no. This is very clear mistake and AAT must know this and give me opportunity to fic up. Not use mistake answer against me. If other people watching they will think AAT biased against me too. Judge make error not see this problem 3. Immigration department lawyer must ask Federal Circuit Court judge permission first to use s438 documents against me. These documents are hide from me in AAT. If I did not appeal, nobody will know about these documents. I don't know anything about law for s438. My English is no good. I have no lawyer. This new for me and I need time to understand law for s438 so I have better chance to argue. Immigration department lawyer must ask judge permission to use s438 documents and provide good reasons why s438 documents can be use at show case hearing especially when I have zero knowledge about this s438 Law and zero chance to argue. Judge make error not see this problem (sic) 26 Ground 1 does not disclose any possible jurisdictional error. It is a repeal of ground 1 before the Federal Circuit Court, dealt with above. 27 Ground 2 is an expanded version of the existing ground 3. Nothing in the material is capable of sustaining the contention that the AAT was biased. Otherwise the allegations are incapable of founding a jurisdictional error. 28 Ground 3 relates to the certificate issued under s 438 of the Act which has been dealt with above. 29 In his written and oral submissions the applicant stressed his poor English, his lack of legal representation, and his nervousness before the Tribunal and other matters either not proved or provable. The applicant's contentions of unfair treatment by the Tribunal are unfounded. 30 I granted the applicant leave to rely on the draft amended notice of appeal and his written submissions. But none of those grounds are reasonably arguable or give rise to any, let alone sufficient doubt, about the correctness of the primary judge's decision.

Conclusion 31 For the reasons identified above, the application for leave to appeal must be dismissed with an order for costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.