ABH16 v Minister for Immigration
[2019] FCCA 543
•8 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABH16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 543 |
| Catchwords: MIGRATION – Protection visa application – claims to fear harm from unnamed persons from whom applicant claimed to have borrowed money – delay in making application – ground of review unparticularised and devoid of merit – allegations of fraud abandoned – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 36, 98, 474, 476 |
| Cases cited: Craig v South Australia (1995) 184 CLR 163 Gill v the Minister for Immigration and Border Protection (2016) 248 FCR 398 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 |
| First Applicant: | ABH16 |
| Second Applicant: | ABI16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 37 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 18 May 2018 |
| Date of Last Submission: | 18 May 2018 |
| Orders pronounced: | 18 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 8 March 2019 |
REPRESENTATION
| The Applicants appearing in person |
| Solicitor for the Respondent: | Ms Wilde |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application filed on 8 January 2016 be dismissed.
The Applicants pay the First Respondent’s costs fixed at $7,627.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
No. MLG 37 of 2016
| ABH16 |
First Applicant
| ABI16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 8 January 2016, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 December 2015 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicants a Protection (class XA) visa pursuant to par 65(1)(a) of the Migration Act 1958 (Cth) (Act). These reasons explain why orders were made dismissing their applications for judicial review.
The applicants are Malaysian nationals aged 43 and 38 years respectively who are married and first travelled to Australia in 2013.
They arrived in Australia as holders of electronic travel authority visas.
Following the expiry of their visas, the applicants lodged an application for Protection visas. The second applicant relied upon the claims for protection as made by her husband, the first applicant.
At the time of completing the protection visa applications, the first applicant’s claims for protection comprised the following:
a)he had given a guarantee for a friend who had borrowed money from a loan shark, RAH Long;
b)his friend who had made default on the loan, went into hiding. The creditor then pursued the first applicant on his guarantee;
c)the first applicant, being unable to pay the guarantee debt, was threatened, then beaten by the creditor who sent two people to the first applicant’s home and shop on an almost daily basis, making demands for repayment of the guaranteed debt, together with ‘higher’ interest;
d)the creditor would be able to find him as “[t]hey have their boys everywhere”, so that he would not be safe if he returned to Malaysia;
e)he had come to Australia to save his life, adding that “[i]n Malaysia, the police and government can’t do anything.”
On 20 July 2015, a delegate of the Minister refused the visa applications. The delegate’s decisional record detailed the applications and the applicants’ history and recorded that the delegate considered: (a) the claims to be vague and unsubstantiated; (b) the applicants delay in seeking protection should be taken into account; (c) having regard to the applicant’s migration history, the lack of detail in their claims and the paucity of meaningful information and evidence, that serious doubts were entertained about the veracity of the claims that the first applicant would be targeted and harmed by loan sharks in Malaysia.
The delegate also noted that the applicants had been offered but had not taken opportunities to discuss their claims at an interview with the Department of Immigration and Border Protection and concluded that the applicants did not satisfy the criteria for a Protection visa, whether on the basis that they were refugees or entitled to complementary protection pursuant to ss 36(2)(a) or 36(2)(aa) of the Act.
On 5 August 2015, the applicants applied to the Tribunal for a merits review of the delegate’s decision.
On 13 November 2015, the Tribunal invited the applicants to appear at a hearing to give evidence and present arguments relating to the issues arising upon the decision under review. The Tribunal informed the applicants that the hearing had been scheduled for 11 December 2015. The applicants attended the hearing and were assisted by an interpreter.
On 14 December 2015, the Tribunal affirmed the delegate’s decision not to grant the applicants a Protection visa. It provided a statement of its reasons for that decision (Reasons).
Procedural History
As stated, on 8 January 2016, the applicants applied for judicial review of the Tribunal decision. Each of the applicants affirmed an affidavit on 8 January 2016 to which they attached a copy of the Tribunal decision. Apart from a brief recitation of the history of the protection visa applications, neither applicant adduced any further evidence illuminating any ground upon which judicial review was being sought.
On 18 January 2016, the Minister filed a Response contending that the Tribunal’s decision was not affected by jurisdictional error and, being a privative clause decision within the meaning of s 474 of the Act, was final and conclusive, incapable of challenge in any court and not amenable to relief of the kind sought in the application.
On 8 June 2016, orders were made, by consent, dispensing with a show cause hearing and listing the matter for final hearing on 9 February 2017. Those orders provided for the applicants to file any amended application with proper particulars of the grounds of the application, together with a supplementary court book and written submissions.
When the matter came on for hearing, it was adjourned for final hearing on 18 May 2018. An order was made by the court on that day to send a copy of that order to the acting program manager for migration, Victoria Legal Aid.
Notwithstanding the orders made, the applicants have not taken the opportunity to file any amended application, with proper grounds of review or any submissions in relation to their application.
Judicial Review
Being a privative clause decision[1], the Tribunal’s decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2] In the absence of jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3]
[1] Section 474(2).
[2]Sections 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[3] Sub-s 476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[4] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[4]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Certain criteria for Protection visas are those set out in s 36 of the Act.
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65.[5]
[5]Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [102].
By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied.[6] Conversely, if satisfied that the criteria for a visa are satisfied, the application must be granted.[7] It follows that if the criteria for the grant of a Protection visa are satisfied, the Tribunal must grant the application and if not so satisfied, the visa application must be refused.
[6]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[7] Section 65(1)(a).
Consideration.
The applicants were self-represented before me and appeared with the assistance of an interpreter. I have re-examined the decision of the Tribunal, together with the materials comprised in the court book.
The grounds stated in the application are as follows:
i) Fraudulent negligence committed by ex-agent Nik, of Springvale who intentionally misrepresented applicant;
ii) Tribunal did not fully consider applicants’ claim for refugee status.
The grounds of review not supported by any particulars and on that basis, the grounds of the application were liable to rejection.
In the course of the hearing before me, I addressed with the applicants the circumstance that their application contained an allegation of fraud. I explained to the applicants that the hearing before this court was not an application for a merits review, as had occurred before the delegate at the Tribunal. I further explained that the application was for judicial review and that in order for the applicants to advance any allegations of fraud, it would be necessary for them to consider the following matters:
a)whether they proposed to maintain their allegations of fraud;
b)if they did so, they could make a choice to give evidence, on oath, in the witness box to address the claim of fraud;
c)if they made a decision to give evidence on oath, they may be cross-examined by counsel for the Minister;
d)that, if the evidence was given on oath from the witness box I was likely to place greater weight upon their evidence;
e)if the evidence was simply given from the bar table it was unlikely that their application would succeed.
see SZRUR v Minister for Immigration and Border Protection;[8] Gill v the Minister for Immigration and Border Protection;[9] Singh v Minister for Immigration and Border Protection;[10] Maharjan v Minister for Immigration and Border Protection.[11] In the latter case, Gilmour and Mortimer JJ endorsed the observation in SZRUR that the proof of fraud is a heavy burden.[12]
[8](2013) 216 FCR 445 [39], [43] (Robertson J, Allsop CJ and Mortimer J agreeing); see also [51]-[54], [59]-[60].
[9] (2016) 248 FCR 398 [42]-[46] (Kenny, Griffiths and Mortimer JJ).
[10] (2016) 247 FCR 554 [48] (Kenny, Besanko and Perram JJ).
[11] (2017) FCAFC 213 [102] (Gilmour and Mortimer JJ).
[12] Ibid.
Responding to that invitation, the first applicant said that he had not been involved in the application while the second applicant said that their migration agent had returned to Malaysia and there was no evidence she could really give about the matter.
Having addressed the issue of fraud, ultimately this turned out to have been done more out an abundance of caution than necessity by reason that the Reasons confirm that the applicants had disavowed their claims of fraud and were content and did, in fact, pursue the claims before the Tribunal that which they wished to maintain.
Before the Tribunal, both applicants expressly disavowed key claims as set out in the Protection visa application, including that their claims were grounded on a guarantee given in favour of the loan shark, or that the first applicant had been threatened and beaten several times by the creditor or that the creditor had sent people to his home on an almost daily basis to enforce repayment of the supposed debt. The applicants told the Tribunal that: (a) they did not understand English; (b) the Protection visa application had been completed for them by a migration agent who had been recommended to them by a friend; (c) they did not know what was stated in the application: Reasons, [13].
The Tribunal noted the further claims which were made at the hearing. The applicants’ new claims were explained as follows:
a)the first applicant had been a minor shareholder in a coffee shop;
b)the major shareholder had, unbeknown to them, taken out a loan;
c)the major shareholder had made default in repayment of the loan;
d)in 2011, at a time when the first applicant was not at the coffee shop, the shop had been visited by the moneylender who had asked for repayment of MYR$30,000;
e)the money lender had made demand for repayment of that sum as a major shareholder had now disappeared;
f)the coffee shop had closed in 2011.
The applicants gave evidence at the hearing that the moneylender’s visit to the coffee shop in 2011 had been the only visit that had been made by that creditor or anyone associated with him and the only time at which a demand for money had been made. Further, the applicants said that “nothing happened after that”: Reasons, [14].
The Tribunal found that the evidence given by each of the applicants in relation to the money lending and the attempts at recovery in 2011 were consistent and credible and that they had not sought to embellish their account. It accepted their description of events: Reasons, [15].
The Tribunal put to the applicants that notwithstanding the default in repayment of the loan, they had continued to reside in Malaysia for a further two years and had not been the subject of any attempts for recovery of the debt or threats of harm to either of them or their family. The Tribunal concluded that, having regard to the applicants’ absence from the coffee shop at a time when the money lender and his associates had visited the shop to recover the loan, the closure of the shop in 2011 and the absence of any further attempts of recovery in the following two years, it was remote that the moneylender would attempt to obtain repayment of the debt from the applicants and their family or that they would attempt to harm or threaten them.
A further claim was made by the applicants that the children would suffer educational discrimination in Malaysia and encounter difficulties in getting into university. The applicants told the Tribunal that, for this reason, they had come to Australia to get a good education: Reasons, [18]. The Tribunal concluded that, while the applicants’ claim was generally credible, the DFAT country information indicated that there were no laws or constitutional provisions that directly discriminated against ethnic Chinese in Malaysia and that Chinese generally did not experience discrimination on a day-to-day basis: Reasons, [19]-[23].
A further claim by the applicants was that they would encounter a heightened sense of insecurity if returned to Malaysia by reason that their children were exposed to risk of kidnapping. The Tribunal took into account that, with a population of nearly 30 million, DFAT had assessed the threat of crime in Malaysia as being comparatively low. The Tribunal found that the applicants’ fears to a heightened sense of insecurity to be highly speculative: Reasons, [26]-[28].
The Tribunal concluded it was not satisfied that the applicants were persons in respect of whom Australia had protection obligations either by reason that they satisfied the criterion for being a refugee or that they were owed complementary protection pursuant to s 36(2)(a) or 36(2)(aa) of the Act: Reasons, [16]-[17], [24]-[25], [27]-[28].
At the hearing before me, the applicants further stated that they also had taken out a car loan in Malaysia which had placed them under significant financial pressure and that the vehicle which they had purchased using this loan had been seized. Asked when this loan had been taken out, they told me that the loan was obtained in 2014. When asked whether that was correct, they replied that the loan had been taken out “a long time ago” and they were not sure of the date. They agreed that the car loan had not been mentioned to the Tribunal.
In reply, the applicants then said that they too had also been harassed for money by a loan shark and owed money to a bank, adding that they did not wish to remain in Australia illegally and that “it suits us to live in Australia”. The applicants explained that they were under huge financial pressure in Malaysia. They told me that they now have four children and that the first applicant could earn enough money to support the whole family.
Finally, the applicants stated that they were worried about their safety if returned to Malaysia, identifying their fears as:
a)the risk of kidnapping of their children; and
b)the risk of being robbed.
They stated that, by contrast, “Australia is a safe country”.
Having regard to the manner in which the Tribunal dealt with the allegation that the applicants’ migration agent had simply filled out the form on their behalf and that they had disavowed allegations of fraud, instead pursuing their new claims, it is unnecessary to consider whether the Tribunal’s decision was tainted by the fraud of their migration agent, or how the principles applying in cases of third-party fraud in a public law context may have applied in the circumstances of this case.
The applicants’ visa application form stated that they had not received any assistance in completing the form. The applicants are to be taken as having filled in the application form themselves.[13] As noted, the fraud allegation in the application was wholly un-particularised and the applicants’ affidavits contained no evidence which might have informed consideration of a fraud allegation.
[13]s 98; NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199, [16]-[18] (Finn, Mansfield and Stone JJ).
As to Ground 1, which concerned the applicants’ new claims, the Tribunal accepted them as credible witnesses. However, it was entirely open to the Tribunal to make findings that the applicants had no well-founded fear of harm from money lenders, their associates or anyone else in the circumstances that: (a) the loans as referred to in the claims before the Tribunal had been the subject of attempted recovery by the respective creditors; (b) there had been no attempt by those creditors to recover the loans in the period 2011-2013; (c) the applicants had remained in Malaysia; (d) no attempts had been made by the creditor to take any enforcement action against the applicants.
Further, it was quite open to the Tribunal on the material before it to conclude that there were no substantial grounds for believing that, as a necessary or foreseeable consequence of the applicants being removed to Malaysia, that there was a real risk that they would suffer significant harm by reasons of those loans or attempts at recovery.
The Tribunal gave proper consideration to the further claims based on educational discrimination and a heightened sense of insecurity. The Tribunal had regard to relevant country information in concluding that the applicants did not face a real chance of persecution by reason of their Chinese ethnicity or a real risk that they would suffer significant harm on this basis. I consider that the Tribunal was entitled to regard the claims to a heightened sense of insecurity as highly speculative.
Insofar as the applicants raised further claims before me in relation to their car loan, I consider that the applicants sought a merits review of their Protection visa application in this court. It is not open to the applicants to seek a merits review of the Tribunal’s decision in this court. These matters had not been raised before the Tribunal. It is no part of the process of judicial review for the Court to undertake a merits review upon the hearing of this application: Minister for Immigration and Ethnic Affairs v Wu Shan Liang.[14]
[14] (1996) 185 CLR 259, 272.
Jurisdictional error will not be established on the basis of erroneous fact finding where the findings of the Tribunal were open: Wu Shan Liang.[15] Nor is it open to do so where the findings were rationally and reasonably made. Nothing is shown in the present case to support a conclusion that the Tribunal’s findings were erroneous, illogical or irrational in the requisite sense.
[15] Ibid.
While the Tribunal was not otherwise obliged to consider unarticulated claims which did not clearly arise from the material before it, the Reasons demonstrate that the Tribunal did in fact go further[16] and did consider the claims[17] which the applicants wished to make once they had disavowed the claims as set out in their visa application. Contrary to Ground 2, the Tribunal did fully consider applicants’ claims.
[16] Minister for Immigration and Border Protection v Guder [2018] FCA 626, [43] (Griffiths J).
[17]NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1 at [48]-[49], [55]-[63] (Black CJ, French and Selway JJ).
I was satisfied in all the circumstances that the applicants failed to demonstrate jurisdictional error in relation to the decision of the Tribunal and, accordingly, that the application must be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly
Date: 8 March 2019
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