Aak17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

[2022] FedCFamC2G 48

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AAK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FedCFamC2G 48

File number(s):

MLG 4 of 2017

Judgment of:

JUDGE LUCEV

Date of judgment:

10 February 2022

Catchwords:

MIGRATION – Judicial review – decision of the Administrative Appeals Tribunal – refusal of Protection (Class XA) (Subclass 866) visa – citizen of Malaysia – alleged fear of particular individuals – alleged fear of loan sharks – whether Tribunal considered irrelevant information – whether jurisdictional error.

Legislation:

Migration Act 1958 (Cth) ss 5J, 36, 424A, 425, 474, 476

Cases cited:

AAK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 310

ADN15 v Minister for Immigration and Border Protection [2016] FCA 810

AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321

Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215

Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424

Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1

MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590

MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1

Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795

SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702

SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234

VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117

Division:

Division 2 General Federal Law

Number of paragraphs:

25

Date of last submission/s:

31 January 2022

Date of hearing:

31 January 2022

Place:

Perth

The Applicant:

Appeared in person

Counsel for the First Respondent:

Mr M. Daly

Solicitor for the First Respondent:

Mills Oakley Lawyers

For the Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 4 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AAK17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LUCEV
DATE OF ORDER:	10 FEBRUARY 2022

THE COURT ORDERS THAT:

1.The originating application filed 3 January 2017 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE LUCEV

INTRODUCTION

1. Before the Court is an application for judicial review filed by the applicant, AAK17, in the Melbourne Registry of the Court on 3 January 2017 (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application concerns a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) handed down 12 December 2016. The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”), to refuse to grant AAK17 a Protection (Class XA) (Subclass 866) visa (“Protection Visa”).

2. The Judicial Review Application contains one ground set out below at [8] (ground 1).

3. The following materials are before the Court:

   (a)a Court Book (“CB”) numbering 114 pages (“Exhibit 1”);

   (b)the affidavit of AAK17 of 3 January 2017 annexing the Tribunal Decision; and

   (c)the Minister’s written submissions filed 9 November 2021 (“Minister’s Submissions”).

4. AAK17 has twice been afforded the opportunity to file written submissions, by orders on 5 July 2017 of a Registrar and on 26 November 2021 of a Judge, but has failed to do so.

   BACKGROUND

5. The relevant background to the Judicial Review Application is as follows:

   (a)on 8 January 2015 AAK17, a citizen of Malaysia, arrived in Australia on a Tourist visa: CB 15;

   (b)on 13 April 2015 AAK17 applied for a Protection Visa: CB 1-26;

   (c)AAK17's claims are set out in the Protection Visa application form: CB 17-20. Therein AAK17 claimed:

   (i)to fear harm from loan sharks to whom he owed money as a result of someone misusing his identity card; and

   (ii)that loan sharks had beaten and threatened him, and that they visited his workplace almost every day;

   (iii)that he was unable to relocate as he would be found by the loan sharks; and

   (iv)that the Malaysian police and government could not assist him;

   (d)on 16 April 2015 the Delegate invited AAK17 to provide personal identifiers and an opportunity to request an interview within seven days upon receiving the letter, to discuss his claims for protection: CB 27-36;

   (e)AAK17 responded to the request to provide personal identifiers but did not accept the opportunity to discuss his claims by interview. No additional information was received by the Delegate from AAK17, despite his having indicated on the Protection Visa application form that he had “press articles about victims being threatened and killed”: CB 46;

   (f)on 5 August 2016, having considered AAK17’s application and making findings that the claims were not credible, and that he did not have a genuine subjective fear of harm in Malaysia, the Delegate’s Decision was to refuse the application for a Protection Visa: CB 41-50;

   (g)on 2 September 2015 AAK17 applied to the Tribunal for review of the Delegate’s Decision: CB 51-57;

   (h)on 9 November 2016 the Tribunal invited AAK17 to attend a hearing before it on 7 December 2016: CB 64-66 (“Tribunal Hearing Invitation”);

   (i)on 14 November 2016 AAK17 responded to the Tribunal Hearing Invitation, and provided country information reports in support of his claims: CB 67-95;

   (j)on 7 December 2016 AAK17 attended a hearing before the Tribunal (“Tribunal Hearing”), where he was assisted by a Malay interpreter: CB 96-99; and

   (k)on 12 December 2016 the Tribunal Decision was to affirm the Delegate’s Decision not to grant AAK17 a Protection Visa: CB 102-114.

   TRIBUNAL DECISION

6. In the Tribunal Decision, the Tribunal:

   (a)set out:

   (i)the criteria for a Protection Visa: CB 103, [4]-[8];

   (ii)the mandatory considerations in accordance with Ministerial Direction No. 56: CB 104, [9]; and

   (iii)its consideration of AAK17’s claims and evidence before the Delegate and the Tribunal: CB 104, [10]-[12];

   (b)accepted AAK17 was a citizen of Malaysia and his identity was as claimed, and that he did not have a right to enter and reside in any third country: CB 105, [13]-[14];

   (c)found that, despite being given extensive opportunity to explain his claims, AAK17 was not a credible witness and that key elements of his evidence were vague, limited, indirect and confused: CB 106, [22], providing the following reasons for this conclusion:

   (i)concerning his evidence in general, AAK17:

   (A)responded in an indirect and confused manner when asked for clarification or further detail about his claims;

   (B)was not forthcoming with information central to his claims;

   (C)made additional claims at hearing, and appeared to forget the basis for his claims in his written statement until prompted; and

   (D)claimed someone helped him with his written application but maintained that the claims were correct: CB 106, [22];

   (ii)in relation to an alleged incident between AAK17 and an Indian man:

   (A)AAK17 was unable to explain why he was assaulted by an Indian man at his workplace due to the man’s animosity for AAK17’s best friend. The Tribunal found that it would have expected that he would have asked his best friend what gave rise to that hostility;

   (B)AAK17 made no reference to a fear of harm from an Indian man in his workplace or that he was assaulted by this man in his Protection Visa application, or that this man had links to his former girlfriend’s ex-boyfriend or loan sharks or anyone else, and if this had occurred it would have been included in his written Protection Visa application; and

   (C)therefore did not accept AAK17 was assaulted by an Indian man in his workplace for any reason, or that such a person provided anyone with AAK17’s personal details and movements: CB 106-107, [23]-[25];

   (iii)in relation to an alleged incident between AAK17 and his former girlfriend’s ex-boyfriend:

   (A)AAK17 was unable to provide details about the instigator of an incident in which he was allegedly attacked by three persons hired by his former girlfriend’s ex-boyfriend;

   (B)AAK17 made no reference to such an incident or his former girlfriend’s ex-boyfriend in his Protection Visa application, where he previously claimed he was assaulted by loan sharks;

   (C)AAK17 had no evidence of any report made to a hospital or the police; and

   (D)therefore the Tribunal did not accept this incident occurred: CB 107-108, [26]-[31]; and

   (iv)in relation to the alleged involvement with the loan sharks:

   (A)AAK17 was unable to clearly explain how he became involved with the loan sharks;

   (B)AAK17 conflated and confused his various claims;

   (C)AAK17 did not report the alleged misuse of his identity to police or provide a clear explanation for why he did not do so;

   (D)AAK17 could not clearly explain how much he allegedly owed or how it was to be repaid; and

   (E)therefore the Tribunal found AAK17 was fabricating all of his claims: CB 108-110, [32]-[35];

   (d)relying on its cumulative findings, did not accept AAK17 had a real chance of serious harm arising from any involvement with loan sharks, a well-founded fear of persecution for this reason, or a real risk of significant harm from anyone on return to Malaysia: CB 110, [36];

   (e)noted that it did not address AAK17’s claimed difficulties in obtaining state protection, as it did not accept AAK17’s claims: CB 110, [38];

   (f)was not satisfied AAK17 had a well-founded fear of persecution for any reason in s 5J(1) of the Migration Act: CB 110, [39];

   (g)was not satisfied that there was a real risk AAK17 would suffer significant harm from an Indian man in his workplace, his former girlfriend’s ex-boyfriend, loan sharks or anyone else: CB 110, [40]; and

   (h)found that AAK17 did not satisfy s 36(2)(a) or (aa) of the Migration Act, and thus affirmed the Delegate’s Decision: CB 110-111, [41]-[44].

   JUDICIAL REVIEW APPLICATION

   Litigation History

7. As stated above at [1], the Judicial Review Application was filed on 3 January 2017 in the Melbourne Registry of the Court. As is well known and acknowledged, there have been significant delays in bringing to hearing before a Judge of this Court migration judicial review matters filed in the Melbourne Registry of this Court: AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren, and the lengthy procedural history of this matter, which need not be repeated, is set out in AAK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 310 at [2]-[4] per Judge Lucev (“AAK17 (No 1)”). It suffices to observe that the matter was twice listed for hearing and twice adjourned in the Melbourne Registry in 2019, before being transferred to the Perth Registry of the Court in August 2021. It was then listed for hearing before a Judge in the Perth Registry on 26 November 2021. On 26 November 2021 AAK17 applied to have the hearing adjourned due to illness – he called into the hearing from a ward bed in Dandenong Hospital. That application for adjournment was granted: AAK17 (No 1), and the Court ordered, at hearing (with written orders subsequently made and emailed to AAK17 and the Minister) that the hearing be adjourned to 25 January 2022. On 25 January 2022 neither AAK17 nor the Minister appeared for the hearing, which was then adjourned to 31 January 2022, when the matter was finally heard. 

   Ground 1

8. Ground 1 of the Judicial Review Application is as follows (unaltered):

   The Tribunal did not make its decision 12 DECEMBER 2016 to law in that:

   1.        The Tribunal committed jurisdiction error by taking irrelevant consideration.

   PARTICULAR

   a.in paragraphs 39, The Tribunal referred to the applicant’s willingness to approach the authorities for identity documents being a strong support for the countantion that the applicant did not fear harmed in Malaysia.

   b.whether the applicant was willing to or was able to obtain identity documents is an relevant consideration of whether or not the Applicant fears being harmed in Malaysia.

   Jurisdictional Error Required

9. This Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. The jurisdictional error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2020) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

10. The onus is upon AAK17 to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424, and it is not within the jurisdiction of this Court to review the merits of the Tribunal Decision, or determine AAK17’s claim for protection: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”); CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

    Submissions

11. As indicated at [4] above, AAK17 failed to provide written submissions as ordered by:

    (a)a Registrar on 5 July 2017; and

    (b)the presiding Judge on 26 November 2021.

12. At hearing AAK17 made the following oral submissions:

    (a)he understands that he did not have enough proof to substantiate his claims and be granted a visa;

    (b)he feared he would be killed by a loan shark if he remained in Malaysia;

    (c)he lost his identity card at his workplace. When he tried to obtain a new identity card he was asked to make a police report. He attempted to make the police report, however, it was rejected because they thought he was “a bad boy”: Transcript, p 7;

    (d)he believed he was unable to obtain a police report because the loan sharks were paying off the government and he did not think the Malaysian police could handle his situation. He believed Australia could keep him safe and that is why he left Malaysia; and

    (e)he could not afford a lawyer to assist him with his application to the Tribunal.

    Minister’s Submissions

13. The Minister submitted that:

    (a)in relation to ground 1, it fails on the facts since the Tribunal Decision at [39] (at CB 110) to which AAK17 refers makes a different finding to the one alleged by AAK17; and

    (b)otherwise, the Tribunal dealt extensively and thoroughly with AAK17’s other claims and the findings made in the Tribunal Decision were open to it.

    CONSIDERATION

    Ground 1

14. Ground 1 takes issue with the Tribunal Decision at [39] (at CB 110), asserting that the Tribunal erred by taking into account the fact that AAK17 was willing to approach the authorities for identity documents when finding that AAK17 did not fear harm in Malaysia. The Tribunal does not, however, make any such finding at CB 110, [39], where it said as follows:

    On the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reasons of his race, religion, nationality, political opinion or membership of a particular social group pursuant to s.5J(1) of the Act.

15. Contrary to AAK17’s claim that the Tribunal referred to his willingness to approach the authorities as support for its finding that AAK17 did not fear harm in Malaysia, the Tribunal instead did not consider it plausible that if AAK17 had his identify documents stolen and was being pursued by debt collectors, that he would not seek the protection of the police. This is explained by the Tribunal at CB 109 at [33] as follows (emphasis in original):

    In this consideration, the Tribunal also notes the applicant’s statement at the hearing that he did not report the misuse of his identity to the police. He told the Tribunal that he went to the register of nationality when he realised he had lost his ID card, but that he did not go to the police about the Ah Long because he had not evidence. The applicant’s explanation was vague. As above, the Tribunal has considered independent information put to the applicant that the RMP are a professional and effective police force. The Tribunal has also considered country information put to the applicant and including the information provided by the applicant indicating that the police are responsive to complaints about Ah Long and encourage people to come forward if they are experiencing difficulties with Ah Long. In view of this information, the Tribunal does not consider it plausible that had the applicant had his identity stolen and was being pursued by an Ah Long for a debt that was not his, he would not seek the protection of the police. This led the Tribunal to have further doubts about the credibility of the applicant’s claims: CB 109, [33].

16. It is apparent that ground 1 is misconceived, that it fails on the facts, and is not made out and does not establish jurisdictional error in the Tribunal Decision.

    Jurisdictional error otherwise

17. As the Federal Court observed in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J (and see also Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [27] per Judge Lucev) in circumstances where a party is self-represented the Court must nevertheless remain alert to the possibility of jurisdictional error by the Tribunal.

18. In this case, the Tribunal identified and considered AAK17’s claims, as it was required to do: Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 at [24]-[25] per Gummow and Callinan JJ; AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18] per Collier, McKerracher and Banks-Smith JJ.

1. The Tribunal also had regard to AAK17’s written evidence before the Delegate and the Tribunal, and to his oral evidence given at the Tribunal Hearing. It was open to the Tribunal to reject AAK17’s claims for the reasons which it gave. The Tribunal’s adverse credibility findings were based on a detailed assessment of the perceived deficiencies in the claims and evidence presented by AAK17. The Tribunal identified numerous inconsistencies in AAK17’s evidence: CB 106-110, [22]-[35], and found elements of the AAK17’s evidence to be vague, inconsistent and lacking in detail. The Tribunal identified a logical and probative basis for its adverse credibility findings, and it is not evident that the Tribunal Decision is legally unreasonable: Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248.

2. In compliance with s 425 of the Migration Act, AAK17 was invited to, and attended, the Tribunal Hearing. At the Tribunal Hearing, the Tribunal raised a number of concerns with AAK17, thereby putting him on notice that his credibility and the truth of his claims were in issue: CB 106-110, [22]-[35]. There was no information before the Tribunal that would enliven its obligations under s 424A of the Migration Act.

3. The Court also observes that the submissions made by AAK17 at hearing amounted to no more than an impermissible request for merits review, and as such cannot be determined by this Court: Wu Shan Liang; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

4. The Court observes that there is no right to legal representation in migration proceedings in this Court: SZHTI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 702 at [3]-[4] per Gyles J; SZQRU v Minister for Immigration and Citizenship [2012] FCA 1234 at [24] per Katzmann J; Runghsawmee v Minister for Immigration & Anor [2019] FCCA 2795 at [32]-[36] per Judge Lucev, although the Court may, particularly when exercising a discretion, take into consideration the fact that a person is self-represented, does not speak English as a first language, and does not have a lawyer to assist him: MZZIV v Minister for Immigration and Border Protection [2013] FCA 1203 at [5] per Mortimer J; ADN15 v Minister for Immigration and Border Protection [2016] FCA 810 at [29] per Charlesworth J. The Court notes that AAK17’s Judicial Review Application has been on foot for over five years and there is no evidence of his previously having raised any matter related to legal advice or representation. Questions as to the availability of legal advice or representation are, in any event, immaterial where the sole ground of review does not establish jurisdictional error in the Tribunal, and it is not apparent that the Tribunal Decision is otherwise affected by any other form of jurisdictional error.

5. For the reasons set out at [17]-[22] above, no jurisdictional error is, in any event, otherwise evident in the Tribunal’s consideration of AAK17’s claims.

   CONCLUSION AND ORDERS

6. For the reasons set out at [14]-[23] above, the Court has concluded that AAK17 has failed to establish jurisdictional error in the Tribunal Decision. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.

7. The Court will hear the parties as to costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev.

Dated:       10 February 2022