Afz18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 1218

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AFZ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1218

File number:

MLG 117 of 2018

Judgment of:

JUDGE CHAMPION

Date of judgment:

12 December 2023

Catchwords:

MIGRATION LAW – Protection visa – Judicial review –– Where Tribunal did not accept that the Applicant borrowed money and found that the Applicant did not face a real chance of serious harm from moneylenders or family or friends – Where the Tribunal took into account the Applicant’s delay of more than eight years between arriving in Australia and his claim for a protection visa as a factor in rejecting the Applicant’s claims as credible – Where the Tribunal found that there was not a real chance of serious harm to the Applicant - No jurisdictional error – Application dismissed  

Legislation:

Migration Act 1958 (Cth) s. 425

Cases cited:

AVQ15 v the Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126, [2003] 128 FCR 533

NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 17

Selvadurai v Minister for Immigration and Ethnic Affairs [1994] 34 ALD 347

Division:

Division 2 General Federal Law

Number of paragraphs:

45

Date of last submissions:

12 December 2023

Date of hearing:

12 December 2023

Place:

Melbourne

Applicant:

In-person

Solicitor for the Respondents:

Mills Oakley

ORDERS

MLG 117 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AFZ18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CHAMPION
DATE OF ORDER:	12 DECEMBER 2023

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,600.

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 CHAMPION:

1. The Applicant is Chinese-Malaysian.  He arrived in Australia on 12 August 2007 as the holder of a visitor visa which expired on 12 November 2007.  He remained in Australia as an unlawful non-citizen. On 2 March 2016, more than eight years after his arrival, he applied for a protection visa.

2. In his written protection visa application, the Applicant wrote that he left Malaysia: “because I had borrowed lots of money from loan sharks in Malaysia, about Malaysian RM650,000.” He wrote that if he returned to Malaysia “the loan sharks have threatened to kill me if I don’t pay the money back. I cannot pay the money I owe them” (CB35). 

3. The Tribunal, among other findings, had “serious credibility concerns about the Applicant’s core claims” (CB144, TD[26]). The Tribunal did not accept that the Applicant borrowed a large amount of money and found that “it follows that the Tribunal does not accept that the Applicant or his wife were threatened by money lenders or anyone else when he failed to pay back the money” (CB145, TD[26]). The Tribunal took into account the long delay between the Applicant’s arrival in Australia and his application for a protection visa as a factor, among others, in its conclusion that the Applicant’s claims were not credible.

4. The Applicant also claimed that he would not be given state protection in Malaysia because he is ethnically Chinese.  The Tribunal found that Chinese Malaysians do not experience violence on a day-to-day basis and that the Applicant had not claimed to have experienced problems in that past in Malaysia as a Chinese-Malaysian. The Tribunal found that there was only a “remote” chance the Applicant would face a real chance of serious harm if he returned to Malaysia on the basis of his Chinese ethnicity: (CB146, TD[32]).

5. The Applicant’s eight grounds of judicial review are set forth at a very high level of generality.  His affidavit made on 17 January 2018 does not substantively advance his application.  He has filed no written submissions. 

6. I have detected no jurisdictional error in the Tribunal’s approach.  I will dismiss the application.  I will give some more detailed reasons.

   JUDICIAL REVIEW APPLICATION

   Procedural Matters

7. I treated the Applicant’s affidavit made on 17 January 2018 as read on the application.  I also admitted the court book into evidence as CE-1. 

   Ground 1: Did the Tribunal’s decision involve an error of law? 

8. Although the Applicant submits that the Tribunal’s decision “involved an error of law”, he has not identified or particularised the error of law. 

9. A failure to particularise a ground for review is a sufficient basis for it to be dismissed: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 17 [37].

10. In the absence of particulars, it is not possible to engage meaningfully with this ground. The Applicant has not proved jurisdictional error. 

11. Ground 1 has not been made out.

    Ground 2: Did the Tribunal misapply the law in failing to ask the Applicant the correct questions?

12. The Applicant submitted that the Tribunal failed to ask the correct questions because it asked the names of the people to whom the Applicant owed money rather than “what did the members look like, or could I provide any further evidence or details?” He submitted that most victims would know what a person looked like but not his or her name.

13. The Tribunal found that the Applicant’s oral evidence to the Tribunal was “vague about key aspects of loans”, including that he was unable to say how much he borrowed and from whom.  Further, the Tribunal found that the Applicant had provided handwritten documents which were “not particularly clear and could have been written by anyone” (CB144 [23]). The Tribunal described the Applicant’s oral evidence about the threats he had received as “vague and unconvincing.”  The Tribunal noted that the Applicant said that he had received threatening phone calls from money lenders, “but did not provide any further details” (CB144 [24]). The Applicant claimed that his wife was at risk from the money lenders, but she stayed living in the same city as the Applicant had lived in before he left Malaysia where his children went to school: (CB144 [25]).

14. I find no error in the Tribunal’s approach to its assessment of the Applicant’s credibility. It was open to the Tribunal to draw an adverse credibility inference against the Applicant from the fact that the Applicant alleged that he had borrowed large sums of money but was unable to provide the names of those he borrowed the money from. No jurisdictional error arises from the Tribunal not asking the Applicant to describe the physical appearance of the money lenders rather than asking their names. I have not been persuaded that the Tribunal misapplied the law because it failed to ask the Applicant the correct questions.

15. Ground 2 has not been made out.

    Ground 3: Did the Tribunal rely on evidence that did not exist when making its decision? 

16. The Applicant’s case was that he borrowed a large sum of money from unknown persons. As I have noted, the Tribunal did not accept his account as credible for reasons which included his vagueness about key aspects of the loans, the unconvincing nature of his evidence, and the fact that his wife had stayed living in the same city as the Applicant lived in before he left Malaysia: (CB170 [23]-[25]). The Applicant has not otherwise explained how he now submits that the Tribunal relied on evidence that “did not exist”. 

17. Ground 3 confronts the same difficulty as Ground 1, as it has not been particularised, which makes it difficult meaningfully to engage with Ground 3: NWWJ (above). It was open to the Tribunal to assess the Applicant’s credibility by reference to the cogency of his account.  In AVQ15 v the Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at 24, a Full Court of the Federal Court noted that in an assessment of credibility, it was necessary for the Tribunal to approach the matter with “the necessary care, fairness, and a reasonable approach, in order to avoid “a quest to disbelieve”.

18. In my view, I do not detect “a quest to disbelieve” in the Tribunal’s approach.

19. Ground 3 has not been made out. 

    Ground 4: Did the Tribunal fail to take into account the Applicant’s health condition? 

20. The Applicant submitted that the Tribunal failed to take into account his “health condition”.  The Applicant submitted that his health condition meant that he was unable to remember some of the answers to questions that he was asked, that his health condition made him prone to a “greater level of harm by others” and it could lead to him having a “mental breakdown”. 

21. Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126, [2003] 128 FCR 533 at [39]-[41] is authority for the proposition that if it is proved that an Applicant was not in a fit state to represent himself at the hearing, the Tribunal may fail to extend an objectively meaningful invitation to present arguments and evidence to the Applicant in accordance with s. 425(1) of the Migration Act 1958 (Cth) and there may be jurisdictional error. I accept the First Respondent’s submission that SCAR refers to circumstances in which the Applicant’s health condition affects the Applicant’s ability to understand the Tribunal hearing process.

22. In SCAR, the conclusion of jurisdictional error was premised on a finding that the Applicant was not in a fit state to represent himself before the Tribunal and therefore the invitation he received under s. 425(1) of the Act was not a meaningful one. In this case before me, I declined to receive into evidence some documents that, as of today’s date, 12 December 2023, the Applicant is suffering from high blood pressure and from asthma.

23. I declined to receive those medical documents into evidence because they were not probative and therefore not relevant as to any submission that the Applicant had an inability to understand the Tribunal hearing, which was conducted in late 2017. Accordingly, in this case, the Applicant has not adduced any evidence as to any health condition he was suffering from at the time of the Tribunal hearing, such that the Tribunal did not provide a meaningful opportunity for him to present evidence and arguments in its hearing relating to the issues arising in relation to the decision under review in accordance with s. 425(1) of the Act.

24. Specifically, the Applicant did not provide documentary evidence or oral evidence specifying how his high blood pressure or asthma meant that he had an inability to understand the Tribunal hearing process.

25. Ground 4 has not been made out.

    Ground 5: Did the Tribunal take into account an irrelevant consideration that the Applicant could not remember the names of those who harmed him?

26. The Applicant was unsuccessful because the Tribunal found that his claims were not credible. Findings as to credit are generally matters for the administrative decision maker, although they may be amenable to judicial review on several grounds, including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review and failure to take into account material critical to the formation of the requisite state of satisfaction: see AVQ15, 41(b). I must, however, exercise “caution […] before concluding that errors in an adverse credibility assessment result in the decision-making being affected by jurisdictional error in order to avoid judicial review transgressing into the impermissible error of merits review”: AVQ15, 41(f).

27. I have not detected any jurisdictional error in the Tribunal’s approach to the assessment of the Applicant’s credibility.

28. The fact that the Applicant could not provide details as to the names of the people from whom he alleged he had borrowed large sums of money was a fact to which the Tribunal was entitled to have regard in an assessment of credibility. To my mind, it is unremarkable that the Tribunal drew an adverse credibility inference against the Applicant from the fact that the Applicant was unable to recall the names of persons from whom he said he had borrowed a very substantial sum – RM650,000.  I detect no error in the Tribunal’s approach.

29. For completeness, I accept that as a matter of principle that the period of time which elapses between an Applicant’s arrival in Australia and the time when he or she claims refugee status may be a proper matter to take into account, as the Tribunal did, when assessing the genuineness, or at the least the depth of an Applicant’s fear of persecution: (CB171 [27]); Selvadurai v Minister for Immigration and Ethnic Affairs [1994] 34 ALD 347, 349.

30. Ground 5 has not been made out. 

    Ground 6: did the Tribunal fail to consider the merits of the Applicant’s claim that he feared harm from a dangerous gang?

31. The Applicant alleged that the Tribunal did not have regard to the merits of the Applicant’s application, specifically that the Tribunal failed to “place enough consideration on the dangerous nature of the gang and how it can affect [him] personally and [his] family’s welfare as well”.

32. The Tribunal squarely considered the Applicant’s claim that he and his wife had received threats from money lenders (CB143 [15]–[16], [19]; CB144 [21]-[24]). 

33. The Tribunal found the Applicant’s evidence was vague and did not give any context or further details regarding these threats or their severity. When the Applicant was asked what would happen if he returned to his home country, the Applicant said that “the loan sharks have threatened to kill me if I don’t pay the money back”; “I cannot pay the money I owe them”; and that the money lenders have made “many phone calls to kill me” (CB142 [11]). The Tribunal noted the Applicant’s response but was not satisfied that these alleged threats amounted to a well-founded fear of persecution because of lack of context and detail (CB145 [24]).

34. The weight to be given to the evidence before it was properly a matter for the Tribunal: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].

35. I accept the First Respondent’s submission that Ground 6 invites the Court to engage in impermissible merits review.

36. Ground 6 has not been made out.

    Ground 7: Was the Tribunal’s approach unreasonable in making its decision?

37. The Applicant submits that the Tribunal exercised power in a manner that was “very unreasonable”. It appears to me that Ground 7 is a template ground. The Applicant has failed to particularise how the Tribunal’s decision was legally unreasonable. The absence of particulars is a sufficient basis for the ground to be dismissed. NWWJ, [37] (above).

38. Legal unreasonableness concerns an abuse of statutory power.  It may arise because a decision is affected by specific errors in the reasoning process. Alternatively, a conclusion of legal unreasonableness may be outcome focused where there is no evident and intelligible justification for the decision: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541, [81]–[82]. I have detected no specific error in the reasoning process. In my view, the decision fell within the range of possible and acceptable outcomes defensible in respect of the facts and the law.

39. Ground 7 has not been made out.

    Ground 8: Was the Tribunal’s decision “uncertain”? 

40. By Ground 8, the Applicant submitted that the Tribunal “exercised power in such a way that a result of the exercise of power is uncertain”. This ground is unsubstantiated and unparticularised: NWWJ, [37] (above).

41. In some areas of administrative law, it is a requirement that the decision-maker’s decision be certain and that a decision-maker’s decision must be capable of being understood: see Aronson, Groves & Weekes, Judicial Review of Administrative Action, (7^th ed.), [7.350].

42. I have not, however, been able to understand the Applicant’s complaint of uncertainty as to this decision. The outcome of the Tribunal’s decision was certain: it denied grant him the protection visa that he sought on merits review of the delegate’s decision. There is no relevant uncertainty as to the outcome.

43. Ground 8 has not been made out.

    CONCLUSION

44. I will make an order dismissing the application for judicial review.

45. Having heard the parties as to costs, I order that the Applicant pay the First Respondent’s costs fixed in the sum sought of $6,600.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.

Associate:

Dated:       12 December 2023