ALO23 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 810
•30 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ALO23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 810
File number(s): MLG 274 of 2023 Judgment of: JUDGE KAUR-BAINS Date of judgment: 30 August 2024 Catchwords: MIGRATION – judicial review – jurisdictional error alleged on the basis the Applicant needed to earn money in Australia to send to a friend in Malaysia who was ill to assist with medical expenses – application dismissed Legislation: Migration Act1958 (Cth) ss 36, 476, 477, 499 Division: Division 2 General Federal Law Number of paragraphs: 26 Date of hearing: 21 August 2024 Place: Sydney Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Mr R. Terrell of Australian Government Solicitor Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
MLG 274 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALO23
Applicant
AND: MINISTER, FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
30 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The application is 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 KAUR-BAINS
By an Application filed on 21 February 2023, the Applicant sought judicial review of a decision of the Second Respondent (Tribunal) dated 9 February 2023. This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application for review has been brought within the time limit set out in s 477 of the Act.
BACKGROUND
The Applicant is a citizen of Malaysia who arrived in Australia in 2018. On 18 May 2018, the Applicant applied for a Protection (subclass 866) visa (visa) under the Act. On 4 August 2018, a delegate of the First Respondent (Minister) refused to grant the visa on the basis the Applicant did not satisfy the criteria for the grant of the visa contained in s 36(2) of the Act. On 23 August 2018, the Applicant applied to the Tribunal for a review of that decision.
On 15 March 2022, the Tribunal sent the Applicant an invitation to provide information in support of the application for review. On 10 January 2023, the Tribunal sent the Applicant an invitation to attend a Tribunal hearing. On 17 January 2023, the Applicant responded to the Tribunal confirming he would attend the hearing and did not intend to rely on any further evidence at the hearing of the review application before the Tribunal. On 25 January 2023, the Applicant appeared before the Tribunal for a hearing, with the assistance of a Malay interpreter. On 9 February 2023, the Tribunal affirmed the decision of the delegate to refuse to grant the visa.
RELEVANT LAW
The criteria for a Protection visa can be found in s 36 of the Act, which at the material time, provided as follows:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d)the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…
TRIBUNAL’S DECISION
In the Tribunal’s decision dated 9 February 2023 at [2] to [4], the Tribunal summarised the background to the application for review. The Applicant departed Malaysia legally using his own passport on 6 March 2018 and first arrived in Australia on 7 March 2018 travelling on his Electronic Travel Authority. Following the lodgement of his protection visa application on 18 May 2018, the Applicant was granted an associated Bridging A visa.
At [8] of the Tribunal’s reasons, the Tribunal summarised the Applicant’s claims in his protection visa as follows:
•he left Malaysia after quitting his job as an accountant due to the extremely high economic decline of daily life and being unable to support his family’s daily life. He was determined to leave the country and find a better outside life to fix the poor financial management problem that he has. He came to Australia because he believed the jobs available here are worth the effort to improve his financial problems. He also believes it’s a safe place to start a new life and there are a lot of job opportunities. He believes the poor financial management that he is facing at this time will gradually recover and he can finance his family life as usual.
•he stated he did not experience harm in Malaysia.
•he did not try to move to another part of Malaysia to seek safety.
•he did not think to migrate to another country as it is a safe place to start a new life and look for opportunities to solve the burden. Australia also has lots of interesting places to look for in his work experience.
•if he returns to Malaysia, he believes he will have difficulty finding job opportunities he cannot afford to do and to re-establish the problems he had, and will have multiple difficulties to re-hold the burden he is responsible for.
•he does not believe he will be harmed or mistreated if he returns.
•he does not believe the authorities will protect him if he goes back. The authorities of his country will not be able to help people with problems like his because it is his personal problem, and no protection is provided.
•he does not think he would be able to relocate within Malaysia.
•he stated in his application that he has no problem if he has a chance to stay in Australia, because it is very safe here and an exciting place to start a new life.
At [18] of the Tribunal reasons, the Tribunal set out that the Applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c) of the Act. At [23] of the Tribunal’s reasons, it noted that in accordance with Ministerial Direction No. 84, made under s 499 of the Act, the Tribunal had taken account of the ‘Refugee Law Guidelines’ and the ‘Complementary Protection Guidelines’ and the country information assessments prepared by the Department of Foreign Affairs and Trade to the extent that they are relevant to the decision under consideration.
At [27] to [32] of the Tribunal’s reasons the following was noted:
27. The applicant stated that actually he came here because of the difficult economic and financial situation he was facing. He stated that his economic situation was very bad and that he came to Australia to work and to support this family.
28. Aside from his poor economic situation he stated he was not harmed in any way.
29. The applicant confirmed he came to Australia in March 2018. We discussed the fact that it has already been almost five years since he came to Australia, and he told the hearing that he had no idea when he would return to Malaysia. He stated that a friend of his in Malaysia has cancer and he has been helping him pay for the cancer medication. He stated that his friend has two children, and his family can’t afford the medication. I referred to my introductory comments explaining the criteria for being granted a Protection visa in Australia and indicated that what he was describing does not appear to fit the criteria.
30. The applicant confirmed information contained in the application that he completed High School in 1997 and told me that after he finished school, he found a job in a timber company. When asked how he became an accountant, the applicant stated that his job was to do the wages for the workers. However, he stated that after a time the price of timber dropped, and the company had to shut down and he lost his job.
31. The applicant stated that he has no fear of harm if he returns to Malaysia. He is only concerned about his economic and financial circumstances. I again outlined the definition of a Refugee and the Complementary Protection provisions to him and referred to his evidence that he does not fear harm but that he came here to work. I explained that he does not appear to meet the criteria.
32. This conversation was repeated a number of times with the applicant referring to his difficult financial problem, his need to support his family and his friend, his friend’s heart condition and family situation, the cost of the medication, and the stress of having to provide the support.
The Tribunal then found:
(a)At [37] that because the Applicant had not made claims about any fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, the Tribunal found the Applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
(b)At [38] and [39] that after concluding that the Applicant did not meet the refugee criterion under s 36(2)(a) of the Act, the Tribunal considered the alternative criterion under s 36(2)(aa) of the Act. The Tribunal found that, as the threshold for the ‘real risk’ test under s 36(2)(aa) was the same as the ‘real chance’ test under s 36(2)(a), the Tribunal was not satisfied the Applicant’s economic hardships or his need to support a friend with cancer were sufficient to meet that threshold. Therefore, the Tribunal found that it was not satisfied the Applicant was a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.
GROUNDS IN THE APPLICATION
In his Application, the Applicant relied on the following four grounds of review:
1.THE TRIBUNAL FILED TO CONSIDER MANY VITAL INTEGER OF MY CASE.
2.THE TRIBUNAL DEPRIVED ME OF PROCEDURE FAIRNESS.
3.THE TRIBUNAL MEMBER FAILED RELIED ON INCORRECT INFORMATION AND DECIDED MY CASE USING FACTS FROM SOME OTHER CASE.
4.THE TRIBUNAL MEMBER FAILED TO ASK ME QUESTIN ABOUT THE TYPES OF HARM RELAVANT IN MY CASE.
(errors as in original)
The Applicant told the Court he had typed the grounds in the Application himself and he could read the grounds in English.
THE PROCEEDING IN THIS COURT
At the hearing of the matter before the Court, the Applicant appeared unrepresented. He appeared with the assistance of an interpreter in the Malay language. At the outset, the Court ensured the Applicant had before him a copy of the Court Book, the Minister’s Response and the Minister’s Written Submissions.
The Court explained to the Applicant the procedure by which the hearing would be undertaken, being that first the documents before the Court would be identified and then the Court would ask the Applicant to tell the Court why he thought the decision of the Tribunal was legally wrong. The Court would then hear from the Minister’s representative on each ground and ask the Applicant if he wished to say anything further about the matters that the Minister had raised in relation to each ground, before moving to the next ground. The Court considered this was the fairest approach for the Applicant to have an opportunity to address each ground immediately after the Minister had addressed the Court.
CONSIDERATION
Ground One
In relation to Ground One, the Applicant provided further particulars by way of oral submissions at the hearing. The Applicant said the Tribunal did not consider the Applicant’s claims that his friend had a number of health complications, those health complications being heart problems and advanced cancer, for which treatment “costs a lot of money” and the Applicant needed to help pay for his friend’s medical treatment.
The Minister’s representative took the Court to the following paragraphs of the Tribunal’s decision to show that the Tribunal was aware of this aspect of the Applicant’s claims:
32.This conversation was repeated a number of times with the applicant referring to his difficult financial problem, his need to support his family and his friend, his friend’s heart condition and family situation, the cost of the medication and the stress of having to provide the support.
…
34. … He stated that he needs money to support his family and friend to get (sic) and that the cost of cancer treatment is expensive. …
The Minister submitted that given the Tribunal expressly identified and discussed this aspect of Ground One in its reasons, it could not be seen to have failed to consider this aspect of the Applicant’s claim.
The Court also notes that at [39] of the Tribunal’s reasons the Tribunal did in fact consider whether the Applicant’s claims about assisting his friend financially in relation to his friends cancer treatment was a possible basis for a protection visa under s 36(2)(aa) of the Act and found it was not:
39. The threshold for the real risk test under s 36(2)(aa) of the Act is the same as that for the real chance test at s 36(2)(a) of the Act. Accordingly, given the foregoing findings relating to the economic circumstances of Malaysia and while the applicant may face certain economic challenges on return to Malaysia because of the prevailing economic situation in Malaysia and because he is supporting a friend with cancer, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under or s 36(2)(aa) of the Act.
In light of the above, there is no error disclosed in the Tribunal’s reasons by Ground One.
Ground Two
In relation to Ground Two, the Applicant repeated that he needed to provide his ill friend with financial assistance to help his friend with his medical treatment and he considered this was a humanitarian basis for claiming a protection visa.
The Court does not find there is any denial of procedural fairness raised by Ground Two. Rather, the Applicant is saying the Tribunal ought to have considered and decided the Applicant was entitled to a protection visa on humanitarian grounds because the Applicant wanted to stay in Australia to earn money to send to his friend in Malaysia who was very sick for his cancer treatment. The Court finds the Tribunal did consider that aspect of the Applicant’s claims as set out at [15] to [17] of this judgment. It was open to the Tribunal to conclude as it did at [39] of its decision that the Applicant’s circumstances regarding his ill friend were not sufficient to give rise to Australia’s protection obligations.
As explained to the Applicant at the hearing, the Court sympathises with the Applicant’s motives and understands the Applicant’s willingness to earn money in Australia to send to his ill friend for medical treatment. However, as explained to the Applicant, this Court cannot engage in merits review. As such, no jurisdictional error is disclosed by Ground Two.
Ground Three
In relation to Ground Three, the Applicant said the Tribunal was of the view that the Applicant was in Australia for “work and to have fun”. The Minister by way of reply contended the Applicant was required to satisfy a specific and particular statutory criteria as set out in s36(2)(a), or (aa), or (b) or (c) of the Act and that the Tribunal was not satisfied the Applicant met the statutory criteria. That is correct. The Court also notes the Tribunal did not make any findings that the Applicant was in Australia to “work and to have fun”
No legal error is disclosed by Ground Three.
Ground Four
In relation to Ground Four, the Applicant accepted he did not experience harm in Malaysia and he would not be harmed or mistreated should he return to Malaysia. Rather, the Applicant said “everything is about” his friend. The Minister by way of reply reiterated the numerous references from the Tribunal’s reasons evidencing an express finding that the Tribunal had fully considered the material before it.
No jurisdictional error is disclosed by Ground Four.
CONCLUSION
For the above reasons, I conclude that the application must be dismissed.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 30 August 2024
0
0
1