AGL18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 949

Federal Circuit and Family Court of Australia

(DIVISION 2)

AGL18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 949

File number(s):	MLG 137 of 2018
Judgment of:	JUDGE LAING
Date of judgment:	15 November 2022
Catchwords:	MIGRATION – whether the Tribunal failed to consider the applicant’s claims or evidence - whether the Tribunal complied with its procedural fairness obligations – whether the reasoning and procedures of the Tribunal were open on the material before it – application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 424A, 425, 476
Division:	Division 2 General Federal Law
Number of paragraphs:	22
Date of hearing:	15 November 2022
Place:	Sydney
Solicitor for the Applicant	The Applicant appeared by telephone with the assistance of a Malay interpreter
Solicitor for the First Respondent	Ms S. Moxey (Sparke Helmore) appeared by video-link

ORDERS

MLG 137 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AGL18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE LAING
DATE OF ORDER:	15 November 2022

THE COURT ORDERS THAT:

1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.The application be dismissed.

3.The applicant pay the first respondent’s costs fixed in the amount of $5,000.

4.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 not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), 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 LAING

INTRODUCTION

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) not to grant the applicant a Protection (Class XA) (Subclass 866) visa (protection visa).

   BACKGROUND

2. The applicant is a citizen of Malaysia. He arrived in Australia on 1 April 2016 as the holder of a Visitor (Class UD) (Subclass 601) visa.

3. The applicant applied for a protection visa on 27 June 2016. The Delegate refused the application on 9 November 2016.

4. On 20 November 2016, the applicant sought review of the Delegate’s decision by the Tribunal. The applicant attended a hearing before the Tribunal on 13 December 2017, with the assistance of a Malay interpreter. 

5. On 21 December 2017, the Tribunal affirmed the Delegate’s decision.

   THE TRIBUNAL’S DECISION

6. At [12], the Tribunal set out the applicant’s claims for protection that were provided in his visa application. The applicant claimed that he left Malaysia for economic reasons, particularly because the high cost of living and low wages were making it hard to support his family, and he owed a debt of RM100,000. The applicant also claimed that he suffered from racism in the workplace, which impeded his employment. 

7. At [13]-[24], the Tribunal discussed the evidence provided at the hearing before it, which included the following:

   (a)The applicant stated at the hearing that none of the claims in his visa application were true. He claimed that he paid a man to assist him in completing the application. The applicant then told the Tribunal that some of the claims were true and that he owed a debt to his family (although not in the amount of RM100,000). The applicant claimed that this debt was owed because he promised he would assist his sister with repayments for her car, but was not able to do so and the car was repossessed.

   (b)When asked what he feared upon returning to Malaysia, the applicant stated that he was, at the time of the hearing before the Tribunal, intending to marry a Malaysian national who was in Australia on a student visa. His prospective wife was due to complete her studies in 2019. The applicant claimed it would be difficult to get a job if he returned to Malaysia. He claimed that he quit a previous job because migrant workers from Indonesia were angry with him because he was Malaysian and they had blamed him when they didn’t receive their salaries (even though he was not responsible).

   (c)The applicant told the Tribunal that ‘all he wishe[d] to do’ was to remain in Australia to continue his studies and stay with his prospective wife.

8. The Tribunal accepted that:

   (a)The applicant was a citizen of Malaysia (at [27]).

   (b)The applicant may have felt indebted to his sister and/or parents, although there was nothing to indicate that he faced a real chance of serious or significant harm on this basis (at [28]).

   (c)The applicant may have found it difficult to obtain employment within his local area (at [30]).

   (d)The applicant’s family supported him for a five year period between the time he left school to when he departed for Australia, including by purchasing his airline ticket to travel to Australia (at [30]).

   (e)The applicant wished to remain in Australia because he can earn ‘significantly’ more income there, because he wished to continue his studies, and because he wished to remain with his prospective wife (at [31]).

9. The Tribunal did not accept:

   (a)The applicant had an outstanding debt of, or approaching, RM100,000 (at [28]).

   (b)The applicant faced racism in the workplace which made him quit and made it difficult for him to achieve promotions. The Tribunal found the applicant’s claim that employers of local plantations preferred to hire friends or family amounted to nepotism and/or patronage, not racism. Similarly, the applicant’s claim that he was harassed by Indonesian workers at a plantation over unpaid wages appeared to be an example of frustration over unpaid wages, rather than racism. The Tribunal was not convinced that the applicant would be unable to gain employment or promotions in Malaysia because of his race (at [29]).

   (c)The applicant would be unable to find employment in Malaysia. Having regard to the country information before it, the Tribunal found that Malaysia’s economy was performing reasonably well. The Tribunal concluded that the applicant’s circumstances were not such that he was at risk of suffering significant economic hardship, serious harm or significant harm upon returning to Malaysia (at [32]-[35]).

   (d)That separation from the applicant’s prospective wife for a period of time would amount to significant harm (at [36]).

10. Based upon these findings, the Tribunal was not satisfied that the applicant was a person to whom protection obligations were owed (at [37]-[39]). Accordingly, the Tribunal affirmed the Delegate’s decision (at [40]).

    PROCEEDINGS BEFORE THIS COURT

11. The applicant commenced the current proceedings by an application filed on 18 January 2018, relying upon the following grounds:

    1.ADMINISTRATIVE APPEALS TRIBUNAL DIDN’T LOOK AT ALL OF THE POINT AND REASONS STATED IN THE APPLICATION.

    2.THE ADMINISTRATIVE APPEALS TRIBUNAL DID NOT GIVE CONSIDERATION FOR ALL OF THE EXPLANATIONS I GIVE IN THE HEARING.

    3.THE UNFAIRNESS OF THE DECISIONS.

12. The grounds as pleaded were unparticularised. The applicant did not specify what matters or explanations that he contended were not considered by the Tribunal. Nor did he specify why the Tribunal’s decision was contended to have been unfair, beyond disagreement. The applicant did not further elaborate upon these grounds when given the opportunity to do so at the hearing before the Court.

13. The applicant’s claims, as I have set out, were of limited scope. The applicant claimed to face harm due to the economic situation in Malaysia. He contended that his ability to work was affected by racism and that he owed his family money. He wanted to remain in Australia, where he was able to earn greater income, study and be with his prospective wife.

14. The Tribunal set out in some detail in its decision the evidence given by the applicant in relation to these claims, both in writing and during his hearing before the Tribunal (at [12]-[36]). No transcript is in evidence, indicating that any explanation given by the applicant was not considered by the Tribunal.

15. Having regard to the applicant’s circumstances and available country information, the Tribunal was not satisfied that the applicant faced a real chance of relevant harm due to the economic situation, racism, or debts in Malaysia. The Tribunal was not satisfied that the applicant’s preference of remaining in Australia, or separation from his prospective wife, were capable of attracting Australia’s protection obligations.

16. On the material before the Court, the Tribunal appears to have complied with its procedural fairness obligations set out in Division 4 of Part 7 of the Migration Act 1958 (Cth) (Act). In accordance with s 425 of the Act, the applicant was invited to, and attended, a hearing before the Tribunal. The applicant was on notice of the issues on review from the Delegate’s decision and from the matters discussed at the Tribunal hearing (as set out in the Tribunal’s decision). There is nothing in the materials before the Court to indicate that s 424A was enlivened.

17. I accept that the applicant may feel that the decision was unfair, because the Tribunal did not accept his claims for protection. However, as was discussed at the hearing, the role of this Court on judicial review is a limited one. The Court is unable simply to substitute its own decision for that of the Tribunal regarding whether or not the applicant’s claims should be accepted, or regarding whether the applicant meets the criteria for the grant of a protection visa. The role of this Court is to determine whether the reasoning and procedures adopted by the Tribunal were relevantly open to it, based upon the materials that were before it. For the reasons I have given, I have no basis upon which to conclude that the approach taken by the Tribunal in this case was relevantly closed to the Tribunal.

18. To the extent that the applicant, through ground 3, additionally sought to challenge the Delegate’s decision, this too was beyond the scope of this Court’s jurisdiction on judicial review: s 476 of the Act.

19. At the hearing of this matter, the applicant stated that he would not return to Malaysia because his family were suffering from financial hardship. He stated that he needed to be in Australia to support his family. The applicant informed the Court that he was now married, with a child, and that he needed a visa for his child. I am not unsympathetic to the applicant’s situation. However, having regard to the limitations of the Court’s powers that I have explained, these matters do not provide a basis for the Court to set aside the decision of the Tribunal on judicial review.

    CONCLUSION

20. For these reasons, I am obliged to find that the application must be dismissed.

21. The Minister sought costs fixed in the amount of $5,000. The applicant stated that he would be unable to pay that amount. However, as I explained during the hearing, ability to pay is not usually regarded as a sufficient reason for not making a costs order. The Minister’s representative confirmed that the applicant would be given the opportunity to discuss his ability to pay with the Department. I am satisfied that the amount sought is appropriate, having regard to the work performed in this matter and to the fact that the amount sought is considerably lower than the Court’s scale.

22. I will also make an order staying the entry of these orders until written reasons for judgment have been published and therefore made available to the applicant.

23          I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Laing.

Associate:

Dated: 15 November 2022