AAN18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 975
Federal Circuit and Family Court of Australia
(DIVISION 2)
AAN18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 975
File number(s): MLG 13 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 9 November 2022 Catchwords: MIGRATION – protection claims based on economic circumstances – whether Tribunal failed to consider all claims – whether Tribunal took irrelevant consideration into account Legislation: Migration Act 1958 (Cth) (Act) ss 5J, 36, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.02
Federal Circuit Court Rules 2001 (Cth) r 44.12
Division: Division 2 General Federal Law Number of paragraphs: 31 Date of hearing: 9 November 2022 Place: Sydney The Applicant: In person, via Microsoft Teams Solicitor for the Respondent Mr E Taylor of Minter Ellison ORDERS
MLG 13 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AAN18
Applicant
AND: Minister for Immigration, Citizenship and Multicultural Affairs
First Respondent
Administrative Appeals Tribunal
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
9 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application filed on 3 January 2018 is dismissed.
2.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the amount of $5,000.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed with this Court on 3 January 2018, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 8 December 2017 affirming a decision of a delegate of the first respondent (delegate) to refuse to grant him a Protection (Subclass 866) Visa.
The following summary and background to the matter is derived from the submissions of the first respondent, but does not appear to be in dispute.
The applicant is a male citizen of Malaysia who arrived in Australia on 7 January 2016 as the holder of an Electronic Travel Authority (Subclass 601) visa (CB 43 and 48).
On 23 June 2016, the applicant applied for a Protection (Subclass 866) visa (CB 1 to 41).
The applicant’s claims were set out in response to questions in the visa application form (CB 36-38). In summary, the applicant claimed he was “forced” to migrate to Australia as the economic situation in Malaysia was “so severe”, the cost of living was too high, he could not live comfortably and was unable to get a job with a good salary, such that he was unable to support himself and his family. In response to the questions about whether he experienced harm or would be harmed or mistreated if he returned to his country, the applicant responded “N/A” (CB 36 to 38). Other than the bio-page of his Malaysian passport, the applicant provided no documents in support of his protection claims (CB 39 and 42).
On 21 June 2016, the delegate refused to grant the applicant a Protection visa (CB 45 to 53). The delegate found the applicant had not claimed to fear harm for any of the reasons in
s 5J(1)(a) of the Migration Act 1958 (Cth) (Act), which provides for the meaning of “well-founded fear of persecution”:
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
In failing to satisfy the above requirement, the applicant did not satisfy the criteria in s 36(2)(a) of the Act (CB 51 to 52). The delegate also found that international law did not require States to provide protection for violations of economic, social or cultural rights and that the applicant had not made any claims that evidenced he had experienced harm in Malaysia. The delegate also found the applicant had not provided any evidence or outlined his claims in sufficient detail to enable the delegate to form the belief that he faced a real risk of significant harm in Malaysia for economic reasons or any other reason and, accordingly he did not satisfy the criteria in s 36(2)(aa) of the Act (CB 52 to 53).
The Tribunal’s decision
On 8 November 2016, the applicant applied to the Tribunal for review of the delegate’s decision, and submitted copies of the delegate’s notification letter and decision record (CB 54 to 65). He also provided an email address for the purposes of receiving correspondence (CB 55).
On 3 December 2016, the applicant provided an updated email address to the Tribunal (email address) (CB 73 to 74) after he was contacted by the Tribunal and told that his initial email address did not work (CB 69 to 70).
On 8 November 2017, the applicant was invited to appear before the Tribunal at a hearing scheduled for 6 December 2017 (CB 76 to 78). The applicant accepted the invitation (CB 79) and attended the hearing in person, assisted by an interpreter in the Malay language (CB 82 to 84, 92 [4]). At the hearing, the applicant gave the Tribunal a copy of the bio-page of his passport and a change of contact details form confirming no changes to his contact details and agreeing to the Tribunal communicating with him by email to the email address (CB 86 to 88). The Tribunal briefly summarised what occurred at the hearing in its decision (CB 92 at [4] and 93 to 94 at [13] to [21]).
On 8 December 2017, the Tribunal affirmed the decision under review (CB 91 to 101).
The Tribunal:
(a)outlined the applicant’s circumstances and written protection claims included in his Protection visa application, including that he did not experience harm in Malaysia (CB 93 at [11] to [12]);
(b)summarised the applicant’s oral evidence at the hearing, including that:
(i)his two older brothers in Malaysia were working;
(ii)he completed Year 11 and worked for a month at IKEA before departing; and
(iii)he came to Australia because his family was poor, he would face a difficult life in Malaysia and he did not want to be a burden to his family (CB 93 to 94 at [13] to [21]);
(c)found the decision under review should be affirmed (CB 95 at [23]);
(d)accepted that the applicant was a citizen of Malaysia, his identity was as claimed and Malaysia was his receiving country (CB 95 at [24]);
(e)accepted the applicant’s claim at the hearing that he only earned RM500 per month for one month he worked in Malaysia after leaving school at the end of 2015 and before he came to Australia in January 2016 but found he was only 17 years of age at that time which likely impacted the wage he earned (CB 95 at [25]);
(f)noted discussing with the applicant the Tribunal’s understanding that the adult minimum wage in Malaysia was RM1,000 per month (approximately AUD300) and found that country information confirmed that a lower rate of RM920 per month applied in Sabah where the applicant lived but the Malaysian government had examined closing the “wage gap” (CB 95 at [25]);
(g)accepted that minimum adult wages were 8% lower in Sabah than Peninsula Malaysia but found the applicant was able to obtain employment in his hometown immediately after leaving school and that country information indicated he would have the capacity to earn significantly more than RM500 per month in the future (noting it was currently RM920 per month) (CB 96 at [26]);
(h)accepted that the applicant wished to remain in Australia because he could earn significantly more money here than in Malaysia, but found there was nothing in his evidence at the hearing to indicate or suggest that his ability to subsist in Malaysia was threatened (CB 96 at [27]);
(i)found there was no evidence or anything else to indicate or suggest that the applicant had suffered or would suffer serious harm for any s 5J(1)(a) reason if he returned to Malaysia (CB 96 at [27]);
(j)found that country information from DFAT indicated that, notwithstanding some recent challenges, the Malaysian economy was performing reasonably well and there was no information that indicated or suggested the applicant would not be able to find employment in Malaysia (CB 96 to 97 at [28] to [29]);
(k)accepted that the applicant’s family was a low-income family and that not all adult family members were able to work all the time, but did not accept that the applicant’s circumstances indicated or suggested he was, or would be, unable to subsist in Malaysia, faced a real chance of suffering significant economic hardship in Malaysia that threatened his capacity to subsist or would deny him the capacity to earn a livelihood of any kind, or that his financial circumstances were or would be impacted by persecutory treatment involving systematic and discriminatory conduct directed at him for any s 5J(1)(a) reason (CB 97 at [29]);
(l)considered the applicant’s circumstances and relevant country information and found there were not substantial grounds for believing he faced a real risk of significant harm as set out in s 36(2A) of the Act (CB 97 at [31]); and
(m)accepted that the applicant may feel some sense of humiliation on return to Malaysia that his earning capacity and financial circumstances are not as good as he would wish but found there was nothing in his evidence to indicate or suggest that this would be due to any act or omission that was intended to cause him extreme humiliation which was unreasonable (CB 97 at [31]).
For these reasons, the Tribunal found the applicant did not meet the refugee criterion in
s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Act, and affirmed the decision not grant him a Protection visa (CB 98 at [30] and [32] to [35]).
Application for judicial review
By an application to show cause filed with the Court on 3 January 2018 the applicant seeks judicial review of the Tribunal’s decision under s 476 of the Act and raises the following three grounds of review (errors in original):
1.The Tribunal failed to properly consider all of my claims.
2.The Tribunal failed to consider an integer of the applicant’s claim, namely him fear of self protection in Malaysia due to economic problems.
3.Th Tribunal comited jurisdiction error by talking into account irrelevant consideration.
On 3 October 2018 a Registrar made orders by consent which provided, inter alia, for the applicant to file and serve an amended application 14 days before the hearing, which was initially to be listed before a different judge of this Court.
The matter was later returned to the central migration docket and was brought into my docket on 18 May 2022. Initially, the type of hearing for which the matter was to be listed by the Registrar was a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (Former Rules). With the commencement of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), r 44.12 of the Former Rules was repealed, such that the matter was listed before me for a final hearing.
On 11 August 2022 I made orders listing the matter for hearing today, together with orders for the preparation of the hearing. Those orders included a grant of leave to the applicant to file any evidence and an Amended Application by 25 August 2022. The applicant did not avail himself of this opportunity, nor did he file any written submissions as ordered. The first respondent filed written submissions on 2 November 2022.
The applicant appeared before me this morning using the Microsoft Teams platform with the assistance of a Malay interpreter. The Minister was represented by a solicitor. The connection appeared to be clear and without any technical difficulties. The parties and the interpreter did not appear to have any difficulty in understanding one another, nor engaging with the Court. At the outset of the hearing I explained to the applicant the limitations on the Court’s jurisdiction in relation to the granting of visas, and he indicated that he understood.
In relation to the grounds of review it is convenient to consider grounds 1 and 2 together. Ground 1 simply asserts that the Tribunal failed to properly consider all the applicant’s claims. Ground 2 more specifically particularises that the Tribunal failed to consider an integer of his claims, namely, his:
…fear of self-protection in Malaysia due to economic problems.
Accordingly, I proceeded to treat ground 2 as particularising ground 1. When asked to speak to ground 1, the applicant said he had nothing to say. When asked to speak to ground 2, the applicant said:
My situation in Malaysia was quite bad, and the Malaysian economy is still very bad.
The applicant added:
On top of that I have two children.
The integer of the applicant’s claims which he says that the Tribunal failed to consider were those pertaining to his economic situation in Malaysia. However, contrary to what is asserted by ground 2, this ground fails on a factual level.
The Tribunal’s decision is entirely directed to the applicant’s economic claims because this was the basis upon which he claimed to fear harm in Malaysia. In particular, the Tribunal:
(a)expressly noted the applicant's written claims in his Protection visa application related to the “severe” economic situation in Malaysia and his inability to obtain a “good job and a good salary” (CB 93 at [12]);
(b)summarised the applicant’s oral evidence at the hearing to the effect that his family in Malaysia was poor, he would face a difficult life, he feared he would a be a burden to his family and he only earned RM500 a month (CB 94 at [16] to [21]);
(c)identified the applicant’s evidence about working in Malaysia for one month before he departed and examined relevant country information about the minimum wage and the economic situation in Malaysia (CB 95 at [25] to [28]); and
(d)expressly considered the applicant's claims and evidence against country information and the refugee and complementary protection criteria and was not satisfied the applicant faced a real chance or risk of serious or significant harm due to his earning capacity and financial circumstances or any other reason in Malaysia (CB 97 at [27] to [31]).
Given the above examples of the Tribunal’s direct engagement with the applicant’s claims, ground 1, properly understood is an expression of the applicant’s dissatisfaction with the Tribunal’s finding that he was a person to whom Australia owed protection obligations. That is fundamentally different than the concept that the Tribunal failed to consider his claims.
In relation to the applicant’s statement regarding the present situation in Malaysia, and the fact that he has two children, as I explained to the applicant (who indicated that he understood). It is not for this Court to consider his particular circumstances, and his present family situation is not something which informs whether or not the Tribunal made a jurisdictional error. Acceptance by the Tribunal is different from consideration, and as such, neither of grounds 1 or 2 gives rise to a jurisdictional error.
By ground 3 the applicant claims that the Tribunal erred by taking into account an irrelevant consideration. When asked to speak to this ground, the applicant said:
I have no idea.
When I asked the applicant if he drafted the grounds, he said that he had asked someone to assist him, but that this was for translation purposes only, and that:
…everything that is in there is straight from me.
When asked why, therefore, he was unable to speak to the grounds, the applicant did not directly reply, saying only that he otherwise had nothing to say about ground 3. The applicant also made no submissions in reply to the first respondent’s submissions. In the absence of the applicant particularising what irrelevant consideration was said to be taken into account, ground 3 cannot be made out.
Having reviewed the Tribunal’s decision I am satisfied that all of the applicant’s claims were considered by it and that there is nothing identifiable as being irrelevant which was taken into account by the Tribunal. I am also satisfied that the Tribunal followed the processes required of it by the Act. I am satisfied that there is no error arising from the Tribunal’s decision, let alone a jurisdictional error, as alleged or at all. Absent jurisdictional error, the decision of the Tribunal is a privative clause decision and must be dismissed.
Costs
Consequent upon the dismissal of the application, the first respondent sought costs in a fixed in the sum of $5,000. When asked to speak to the question of whether there should be a costs order and, if so, in what amount, the applicant again said he had nothing to say. In all of the circumstances of this case I am satisfied that it is appropriate that a costs order be made pursuant to the usual principle that costs follow the event.
While giving my further reasons relating to costs, the applicant he then interrupted the ex tempore judgment to say that he now wished to be heard. The applicant said that he is not working, and that he has two children, and asked, rhetorically, how it was that he was supposed to pay any amount ordered. The inability of the applicant to meet the costs order is not a sufficient basis upon which it ought not be made.
I also explained to the applicant that he would, in due course, receive correspondence from the solicitors of the first respondent regarding whom at the first respondent’s Department he can speak regarding time to pay or instalment payments. In relation to the amount sought by the Minister’s solicitor, I am of the view that that amount is reasonable having regard to the fact that the matter was initially intended to be listed for a show-cause hearing which under the Court’s Former Rules was an interlocutory hearing. While the amount sought by the first respondent is slightly more than that for an interlocutory hearing, it also remains considerably less than that for a final hearing and, accordingly, in my view it is an appropriate amount to order.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 22 November 2022
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