AMM18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 760
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 760
File number(s): MLG 268 of 2018 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 24 August 2023 Catchwords: MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Protection (subclass 866) visa – where the applicant claims to fear harm due to her political activity and from Malaysian money lenders – claims that the Tribunal made an error of law and failed to afford applicant procedural fairness – where Tribunal made adverse credibility findings – finding that Tribunal’s reasoning and conclusions were comprehensive and reasonably open – finding that applicant was provided with fair opportunity to present claims and arguments – further suggestion of fraud on the applicant by person assisting her to file protection visa application – where no particulars of fraud or any evidence of fraud otherwise provided – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth), ss 425, 476
Australian Constitution, s 75
Division: Division 2 General Federal Law Number of paragraphs: 97 Date of last submission/s: 30 May 2023 Date of hearing: 30 May 2023 Place: Melbourne Solicitor for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Ms N Bosnjak of Mills Oakley ORDERS
MLG 268 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMM18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
24 august 2023
THE COURT ORDERS THAT:
1.The applicant’s application filed on 2 January 2018 be dismissed.
2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
Before the court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 8 January 2018. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’) refusing the applicant a Protection (Class XA) visa (‘protection visa’).
BACKGROUND
The applicant is a Malaysian national who most recently arrived in Australia on 9 August 2015 as the holder of an Electronic Travel Authority (‘ETA’), which expired on 9 November 2015.[1] Prior to her travel to Australia in August 2015, the applicant had previously travelled to Australia twice. The first trip to Australia was in June 2010 and the second was in May 2015.
[1] Court book at page 44.
Application for protection visa on 22 February 2016
Upon the expiry of the ETA in August 2015, the applicant remained in Australia unlawfully until 22 February 2016 when she lodged her application for a protection visa and was issued with a bridging visa.[2]
[2] Court book at page 44.
In her application for a protection visa,[3] the applicant claimed to fear harm on the basis of having been a member of the Bersih movement, which was involved in the largest democratic protest in Malaysia.[4] The applicant claimed to fear that she would be arrested if she were to return to Malaysia and imprisoned as a result of her involvement with the Bersih movement. In her application, the applicant stated that many members of the Bersih movement were imprisoned and had died in jail and moreover, that there was little public reporting of these facts because the media is controlled by the Malaysian government.[5]
[3] See Court book at page 1 and following.
[4] Court book at page 31.
[5] See Court book at page 31.
Refusal of protection visa application on 20 April 2016
On 20 April 2016, a delegate of the Minister refused the applicant’s protection visa application.[6] Relevantly, at paragraph [21] of the decision record, the delegate said:
21.The applicant has claimed to be a member of “Bersih” and to be wanted by the police. Her claims are brief, vague and lack detail. No mention is given of rallies attended. In addition, absolutely no evidence has been provided to substantiate her claims, which rest entirely upon her brief written statement.
[6] Court book at pages 41 to 55.
The delegate went on to say that whilst there is country information to suggest that political activists may face persecution, they were not ‘convinced on the evidence (or lack of) … that her claims are genuine’.[7]
[7] Delegate’s decision record dated 20 April 2016 at paragraph [22].
The delegate therefore found that the applicant did not meet the requirements for the issue of a protection visa.[8] The delegate also went on to consider whether the applicant satisfied the requirements under the complementary protection criterion, concluding at paragraph [29] of the delegate’s reasons that she did not.
[8] Delegate’s decision record dated 20 April 2016 at paragraphs [23] to [25].
Application for review in Tribunal on 5 May 2016
On 5 May 2016, the applicant sought a review of the delegate’s decision before the Tribunal.[9]
[9] Court book at pages 60 to 66.
By letter dated 21 June 2016, the applicant made further claims to the Tribunal in the following terms:
Support my Tribunal
I left my own country due to bad life commitment.
I am 64 yrs old single not married and loner person. I do not have job and income and lost my money 125K RM due to invest in get rich skim [sic] however I being cheated by […] all my saving gone all my dept [sic] increase cannot pay no income. I also borrow amount of money from […] 50K RM he is a loan shark (A long). He keep tolerated with me 2yrs I still cannot pay situation change he send hes [sic] people to treten and tourter me [sic]. I am leaving in trauma I cannot stay anymore I make decision to left my country life not safe. I am urge and seeking the honesty of Australian goverment [sic] to protect and let me stay here to finish the rest of my life.
If I go back not safe for my life. I will be caught by [loan shark’s] people and my life will be ….[10]
[10] Court book at pages 77 to 78.
Tribunal hearing on 22 September 2017
On 15 August 2017, the applicant was invited to a hearing before the Tribunal which took place on 22 September 2017.[11] The applicant attended the hearing and was assisted by a Malay interpreter.[12] The applicant provided a written statement at the hearing, which was largely in the same terms as the letter dated 21 June 2016 set out above.[13]
[11] Court book at page 81.
[12] Court book at page 92.
[13] Court book at pages 98 to 99.
On 2 October 2017, the applicant also provided various further documents in support of her claims.[14]
[14] Court book at pages 100 to 112.
On 8 January 2018, the Tribunal notified the applicant of its decision to affirm the delegate’s decision to refuse the applicant a protection visa.[15]
[15] Court book at page 113.
TRIBUNAL DECISION
The Tribunal’s decision of 8 January 2018 is set out at pages 117 to 126 of the court book.
Relevantly, after setting out the criteria for a protection visa at paragraphs [3] to [8] of its decision record, the Tribunal set out the background facts at paragraphs [10] to [23].
At paragraph [22] of the Tribunal decision record, the Tribunal member noted that the documents provided by the applicant in her post-hearing submission included her mother’s death certificate, a copy of a rental payment for her grandmother’s house, a copy of the applicant’s advanced certificate in management from 1997 and a deed of investment from 2011 between the applicant and the Grand Gosh Group indicating that the applicant had invested 124,000 Malaysian ringgits.
At paragraphs [24] to [48] the Tribunal set out its analysis of the applicant’s claims. Relevantly, at paragraphs [26] to [29] the Tribunal sets out the approach it was required to take in assessing issues of credit.
At paragraph [31], the Tribunal accepted that the applicant is a single woman who has never married and who does not have children. The Tribunal also accepted that the applicant was raised by her mother, did not know her father and that her mother had since passed away.
At paragraph [32], the Tribunal also accepted that the applicant’s claimed residential history.
At paragraphs [33] to [34], the Tribunal also accepted the applicant’s travel and employment history as set out in its decision record.
At paragraphs [35] to [48], the Tribunal then went on to consider the applicant’s claims to fear harm on various stated grounds. In doing so, the Tribunal noted at paragraph [35] that the applicant herself had provided:
35.… very limited and poorly articulated written claims at the time of application outlining her fears of persecution arising for [sic] her support for the anti-corruption and anti-government movement known as Bersih. The claims were not raised in the handwritten statement submitted to the Tribunal at all.
Applicant’s political claims
Relevantly, at paragraph [38], after setting out in some detail the information provided by the applicant in the Tribunal hearing, the Tribunal found:
38.Based on the limited nature of the applicant’s written claims, her travel history, her ambivalent responses about having been either at a Bersih rally or even having any firm or passionate political opinions as well as by her own admission that the applicant is not a person of interest, the Tribunal finds that these political claims that the applicant is owed Australia’s protection lack any overall credibility. The Tribunal accordingly does not accept the applicant was ever at a Bersih rally in the past or a member of the same movement or any organisation associated with the Bersih movement or even a witness to one of the Bersih rallies, as claimed … It does not accept the applicant has ever been a person of interest to anyone in authority for her political opinions, actual or otherwise, or will be in the foreseeable future. Based on these adverse credibility findings the Tribunal finds that the applicant had fabricated her written claims regarding political opinion and membership for migration purposes and has invited the Tribunal to consider that other claims that had been fabricated or embellished.
Consequently, at paragraph [39], the Tribunal found that the applicant did not have a real chance of serious harm arising from her political activity.
Applicant’s claim of being a victim of investment fraud/malfeasance
At paragraph [40] to [42], the Tribunal articulated the additional claims made by the applicant to the Tribunal that she was a victim of investment fraud or malfeasance.
At paragraph [43], on the basis of the evidence before it, the Tribunal did accept that the applicant made an investment in 2010 as claimed. However, the Tribunal went on to say that it had a number of credibility concerns about the other aspects of the applicant’s claims following the making of that investment. Relevantly, the Tribunal found that the applicant had embellished this aspect of her claims to enhance her application for a visa. Consequently, at paragraph [44], the Tribunal concluded that the applicant did not face a real chance of serious harm arising from her investments.
Applicant’s loan shark claim
At paragraphs [46] to [47], the Tribunal went on to consider the applicant’s further claim that as a result of having been the subject of investment fraud, the applicant was forced to borrow money from a loan shark and that since being in Australia, the loan shark had visited her home in Malaysia demanding repayment of his money. In light of its credibility concerns as set out earlier, the Tribunal did not accept that the applicant had any debts accrued as claimed. At paragraph [48], the Tribunal therefore found that the applicant did not have a real chance of serious harm arising from this aspect of her claim.
At paragraphs [49] to [55], the Tribunal also considered the applicant’s claims individually and cumulatively. Relevantly, the Tribunal noted at paragraph [50]:
50.Based on the extensive adverse credibility findings above, it is the Tribunal’s assessment that the applicant’s written and oral claims for protection lack overall credibility. It does not accept the applicant had any real chance of serious harm for any of her claimed reasons about her political opinion, investment fraud or outstanding debts to any ah long, loan shark or other criminal or criminal organisations. Based on the same extensive credibility findings, the Tribunal is further not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Federation of Malaysia there is a real risk of significant harm, including the applicant will suffer significant harm based on these claims, both individually and cumulatively considered.
Further, at paragraph [52], the Tribunal went on to find that:
52.… the applicant is an unreliable witness of truth who fabricated and embellished her written and oral claims for migration purposes and not because she [has] any genuine personally held fears of persecution either at the time of application, at the scheduled hearing or into the reasonably foreseeable future.
Based on these adverse credibility findings, the Tribunal did not accept that the applicant had a well-founded fear of persecution and found instead that her claims for protection were ‘fabricated or embellished solely for migration purposes’.[16]
[16] Tribunal’s decision record dated 8 January 2018 at paragraph [53].
At paragraph [55], the Tribunal also considered whether the applicant met the requirements for the granting of a visa under the complementary protection provisions in section 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’), but ultimately found that she did not.
The Tribunal therefore affirmed the delegate’s decision not to grant the applicant a protection visa.[17]
[17] Tribunal decision record dated 8 January 2018 at paragraph [59].
PROCEEDINGS IN THIS COURT
The applicant filed her application for judicial review, accompanied by an affidavit in support, on 2 February 2018.
Orders were made by Registrar Allaway on 14 November 2018 providing, amongst other things, for the applicant to file any amended application upon which she might seek to rely, with proper particulars of the grounds of the application and written submissions, 28 days prior to the hearing. Notwithstanding these orders, the applicant did not file any such amended application or submissions, or indeed any other material, prior to the hearing before me.
At the hearing before me, the applicant appeared on her own behalf, assisted by a Malay interpreter. The applicant sought, and was granted leave with the consent of the Minister, to hand up and rely upon written submissions, which were marked as Exhibit A. Prior to doing so, the applicant provided a copy of those submissions to the Minister’s representative who, after considering them, indicated that the Minister did not object to those submissions being received and considered by the court.
COMPETENCY OF THE APPLICATION
In her application, the applicant has sought an order quashing the Tribunal’s decision.[18] Strictly speaking, the applicant did not seek any other orders.
[18] See Originating Application filed on 2 February 2018.
The Minister’s representative noted in oral submissions that the application is technically deficient and does not properly invoke the court’s jurisdiction.[19]
[19] Minister’s Outline of Submissions filed on 4 April 2019 at paragraph [30].
Section 476(1) of the Act relevantly provides:
(1)Subject to this section, the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
Section 75 of the Constitution provides that the High Court has original jurisdiction in, amongst others, matters in which ‘a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth’.
When asked if she was seeking a writ of mandamus or prohibition or an injunction, as outlined in section 75(v) of the Constitution, the applicant said that she ‘[does not] know what to do’.
Allowing for the fact that the applicant is representing herself, when read together with the ‘grounds’ section of the application, it is clear that the applicant seeks to have her application determined according to law and that the application ought be taken to have been amended accordingly.
I will therefore proceed to consider the applicant’s grounds for judicial review.
APPLICANT’S WRITTEN SUBMISSIONS
Before turning the applicant’s grounds of review, it is appropriate to summarise the applicant’s written submissions.
At paragraphs [1] to [6] of Exhibit A, the applicant recounts her personal background and migration history. At paragraph [7] and following, the applicant outlines the circumstances in which she made her protection visa and then applied for review in the Tribunal, including that she had not been represented throughout the Tribunal proceedings.
Relevantly, at paragraph [8] of Exhibit A, the applicant says:
8.My protection visa application was lodged with the assistance of a known person who pretended to be an expert with immigration matters however, I came to know later that this person had no clue what he was doing and provided very limited details to the DoHA regarding the claim.
At paragraph [12] and following, the applicant repeats the claims she presented before the Tribunal, including that:
(a)she was a victim of loan shark operations in her country, in which she was scammed and had lost all of her savings and continued to be harassed by the loan shark;
(b)she had no right to enter and reside in any safe third country; and
(c)she may be captured by the government, be punished or even tortured upon return, and that the Malaysian government has a history of abusing human rights and ordinary citizens are not safe in the country.
At paragraph [14] of Exhibit A, the applicant said:
14.I believe the AAT has been too strict on accepting the evidence provided and they should have accepted the oral evidence provided to support my application and also AFP has reasonable information that Loan Shark is treating people unfairly and departing Malaysia as a result. …
At paragraph [15] to [17], the applicant takes issue with the Tribunal’s conclusion that because she did not have a lot of material supporting her claim that her fear of harm was not legitimate.
At paragraph [18], the applicant questioned how the Tribunal had accepted that she had made an investment in 2010 in the sum of 125,000 ringgit, as claimed, but refused to accept her claim that she had been the subject of a fraudulent investments scheme, due to a lack of media reports and the fact that she had not reported the matter to the police. The applicant submitted that the fraudsters were well-connected.
At paragraph [19], the applicant seeks to explain the gaps and inconsistencies in her evidence and says that this is due to the time that had passed since the incidents had occurred. At paragraph [21], the applicant also takes issue with the Tribunal’s finding that she had fabricated her financial circumstances for migration purposes.
At paragraph [23], the applicant claims that the Tribunal failed to consider the possibility of the risk of harm upon return.
At paragraph [24], the applicant states that the Tribunal’s reliance on its assessment of her credibility was unfair and that it should have relied upon the actual evidence provided.
At paragraphs [27] to [30] of her submissions, the applicant reiterates that she does have a genuine fear for her life is she were to return to Malaysia and that she in fact does meet the requirements of the Act. She further asserts that in coming to a different conclusion, the Tribunal erred.
With the exception of paragraph [8], outlined above and which I will address in more detail below, it is clear from the applicant’s written submissions that she takes issue with the way in which the Tribunal assessed her claims and the fact that the Tribunal did not accept them.
GROUNDS OF REVIEW
In her application for judicial review, under the heading ‘grounds of application’, the applicant says:
1.I am Malaysian citizen and born in Malaysia. I came to Australia as a holder of visitor visa and made an application for protection visa to seek refugee in Australia due to have fear for my life in Malaysia upon return.
2.Application was lodged to DIBP and application was refused by DIBP for not meeting criteria and then application was made to AAT to seek review of my visa application. AAT has affirmed decision made by DIBP and now I would like to seek review of this decision from AAT due to an error in law made by AAT.
3.AAT has made an error in law while deciding on this matter. I have been not treated fairly when AAT failed to consider the fact that borrowing money from wrong source could lead to me life being in danger. AAT has not considered information provided to them and in fact gone with information from Royal Malaysian Police.
4.I have clearly explained that I have not family support in Malaysia and returning home with this much debt would make me venerable to be attached [sic] by loan shark people who would take me as a primary target to seek advantage. I could be attached by loan shark people, kidnapped or tortured to not to go police to seek any help at all.
5.I have been victim in the past and same thing would happen to me upon return. I am a single woman who would have no support from anyone in Malaysia and this has made me even more attackable by these loan shark people. I have clearly advised AAT of potential danger however, they have gone on with information available to them from Royal Malaysian Police and affirmed decision made by AAT. This is clear indication of error in law made by AAT.
6.I would like to request to FCC to set aside old orders and replace by new orders and accept my application for review and make new orders to grant me protection visa.
At the hearing before me, after explaining the role of this court in a judicial review application, and in particular that the court’s function is limited to determining whether the Tribunal’s decision is affected by jurisdictional error and that the court did not have the power to consider her visa application afresh or issue her with a visa, the applicant was invited to expand upon and explain the errors she believed affected the Tribunal’s decision.
In response the applicant said, ‘I think AAT failed to give the relevant consideration to my situation’. The applicant also said that as she was not a lawyer, and she did not understand the law, she was unable to provide any more details as to the basis on which she said that the Tribunal’s decision should be quashed.
I will address each of the ‘grounds’ as set out in the applicant’s application in turn. I will also address any additional matters contained in the applicant’s written submissions at Exhibit A, to the extent that they could be understood to give rise to any additional grounds of review.
Grounds 1 and 2
Grounds 1 and 2 simply set out the applicant’s personal situation and the procedural background in this matter. They do not identify any jurisdictional error.
Although ground 2 makes a reference to an ‘error of law’, it does not set out any particulars of the alleged error and therefore does not identify any jurisdictional error.
Ground 3
At ground 3, the applicant alleges that the Tribunal made an ‘error of law’ and that the applicant ‘[has] not been treated fairly’ as a result of the Tribunal not considering her claims and information provided relating to the risk of harm that she said she faced due to having borrowed money from loan sharks. Ground 3 also suggests that rather than having regard to the material provided by the applicant, the Tribunal had regard to information provided by the Royal Malaysian Police.
In addition, in oral submissions, when asked whether the applicant wished to expand on her application or her written submissions, she stated that the Tribunal did not give relevant consideration to her situation.
Tribunal’s consideration of the applicant’s claims
To the extent that this claim relates to an alleged failure by the Tribunal to consider, in the sense of an active intellectual engagement with the relevant aspects of the applicant’s claims including regarding the loan shark claim, that claim must be rejected.
It is apparent from a fair reading of the Tribunal’s reasons that the Tribunal understood the applicant’s claims to be that she feared harm as a result of her political opinion and her membership of the Bersih movement. The Tribunal also correctly understood the applicant to fear harm as a result of having been the victim of fraud and as a consequence that she borrowed money from a loan shark and that when she was unable to repay that money, the loan shark started to demand repayment and threaten her.
The Tribunal considered in some detail the applicant’s claims to fear harm as a result of her political views at paragraphs [35] to [39] of its decision record.
Relevantly, at paragraph [38], the Tribunal concluded:
38.Based on the limited nature of the applicant’s written claims, her travel history, her ambivalent responses about having been either at a Bersih rally or even having any firm or passionate political opinions as well as by her own admission that the applicant is not a person of interest, the Tribunal finds that these political claims that the applicant is owed Australia’s protection lack any overall credibility. … Based on these adverse credibility findings, the Tribunal finds that the applicant had fabricated her written claims regarding political opinion and membership for migration purposes …
At paragraphs [46] to [48] of the Tribunal’s decision record, the Tribunal set out in a fairly comprehensive way the applicant’s claims in relation to the loan shark and the reasons why it did not accept those claims. The Tribunal found that as it had not accepted that she had any accrued debts, it did not accept that she had any financial pressure arising from the alleged investment fraud.
At paragraph [47], the Tribunal further set out the various inconsistencies in the applicant’s evidence which further supported its rejection of the loan shark claims. The Tribunal again made fairly significant and comprehensive adverse credibility findings about the applicant’s claims, findings which were reasonably open on the evidence before it.
At paragraphs [49] to [55], the Tribunal then considered the applicant’s claims cumulatively. Relevantly, as noted at paragraph [49], the Tribunal noted that the ‘applicant’s credibility is of central importance to the Tribunal’s determination of this review application for protection’.
There is therefore no jurisdictional error arising from the Tribunal’s consideration and rejection of the applicant’s claims.
Tribunal’s procedural fairness obligations
To the extent that by ground 3, the applicant alleges that the Tribunal did not afford her procedural fairness, such a claim is also not made out.
The Tribunal has complied with its obligations under Part 7 of the Act. Relevantly, the Tribunal invited the applicant to a hearing as required by section 425 and there is nothing to suggest that that hearing was not conducted in a fair manner. The applicant attended and she was assisted by an interpreter. It is also apparent from the Tribunal’s reasons that the applicant made further claims at that hearing, which were also considered by the Tribunal.
Moreover, the applicant was afforded the opportunity to, and did, provide further documents following the hearing, which were also considered by the Tribunal. There is no evidence to suggest that the applicant was not afforded a meaningful and real opportunity to give evidence and make arguments before the Tribunal.
Applicant’s issues with Tribunal’s conclusions and failure to give consideration to evidence
To the extent that ground 3 takes issue with the Tribunal’s conclusions, it rises no higher than seeking impermissible merits review.
Finally, to the extent that the applicant claims that the Tribunal failed to give consideration to ‘information’ presumably provided by her, but instead had regard to information provided by the Royal Malaysian Police, this aspect of ground 3 is also not made out.
Firstly, the applicant does not identify which ‘information’ she provided was not considered by the Tribunal. Moreover, for the reasons set out above, it is clear that the Tribunal did consider the applicant’s claims and the information she provided in support of those claims. Ultimately, it simply did not accept her claims for the reasons given in its decision record. The weight to be given to any evidence before it was ultimately a matter for the Tribunal.
Moreover, to the extent that the applicant refers to the Tribunal preferring evidence given by the Royal Malaysian Police, it is not clear what information this refers to.
At paragraph [36] of its decision record, the Tribunal did refer to country information in consideration of the applicant’s claimed fear of harm arising from her involvement with the Bersih movement. At paragraph [36], the Tribunal refers to paragraph [3.61] of a DFAT report, in which there is a reference to the response by the Royal Malaysian Police to various demonstrations. At paragraph [37], the Tribunal then records that the applicant provided her opinion about the police response to members of the Bersih movement.
Moreover, at paragraphs [37] to [38], the Tribunal set out its analysis of the applicant’s claims relating to her alleged involvement in the Bersih movement.
As stated above, at paragraph [38], the Tribunal ultimately made an adverse assessment of the applicant’s credibility.
The assessment of the evidence before it, including the weight to be given to country information, was ultimately a matter for the Tribunal.
It is clear from the Tribunal’s reasons that it considered the applicant’s claims but rejected them for the reasons given. Those reasons and that conclusion were reasonably open to the Tribunal. Again, to the extent that this aspect of ground 3 takes issue with the Tribunal’s reasons, it does little more than seek impermissible merits review.
As such, ground 3 does not disclose any jurisdictional error.
Grounds 4 and 5
At grounds 4 and 5, the applicant takes issue with the fact that the Tribunal did not accept that she was at risk of harm from the loan sharks if she were to return to Malaysia. This is particularly so in circumstances where the applicant says that she had advised the Tribunal that she was a single woman without any family support in Malaysia.
The applicant again takes issue in these paragraphs with the Tribunal’s preference for information provided by the Royal Malaysian Police.
As noted earlier in these reasons, the Tribunal accepted that the applicant was a single woman, who had no children and whose parents had both passed away.[20] However, as discussed above in relation to ground 3, after considering the applicant’s claims to fear harm from loan sharks, the Tribunal rejected this claim for the reasons given in paragraph [38] of its reasons.
[20] Tribunal decision record dated 8 January 2018 at paragraph [31].
The Tribunal concluded that the applicant had indeed fabricated these claims.[21] As stated above, this conclusion was reasonably open on the evidence before the Tribunal and no jurisdictional error is disclosed by the manner in which the Tribunal considered this aspect of the applicant’s claim.
[21] Tribunal decision record dated 8 January 2018 at paragraph [39].
By grounds 4 and 5, the applicant does no more than take issue with the conclusion reached by the Tribunal and invites the court to engage in impermissible merits review.
As such, grounds 4 and 5 do not disclose any jurisdictional error.
Ground 6
In ground 6, the applicant invites the court to set aside the Tribunal’s decision and grant her a protection visa. As was explained to the applicant at the hearing before me, this court does not have the power to consider the applicant’s application for a visa on its merits or to grant a visa.
If satisfied that there has been a jurisdictional error in the manner in which the Tribunal has undertaken its functions, the court’s power would be limited to quashing the Tribunal’s decision and directing the Tribunal to reconsider the matter according to law.
In any event, the applicant does not in this ground identify any alleged error of law and therefore ground 6 also does not disclose any jurisdictional error.
Additional claim of fraud
As stated above, at paragraph [8] of the applicant’s written submissions, she claims that she submitted her visa application with the assistance of an unknown person who pretended to be a migration expert.
In responding to this claim, the Minister’s representative submitted that to the extent this could be submitted as a claim that there was some sort of fraud committed on the applicant, there is no evidence in the court book of the applicant receiving assistance, and the description of the person who provided assistance is not that of a migration agent or a lawyer.
For the applicant to succeed in such a claim, she would need to point to some evidence that she had received the assistance of a migration agent and that the applicant had paid for services which were fraudulently provided, such as the agent having filed a protection visa without the applicant’s knowledge.
Aside from the fact that the applicant has not particularised this claim, there is no evidence in the court book to suggest that the applicant was assisted in the preparation of her application by a migration agent or otherwise. Relevantly, in her application for review in the Tribunal, the applicant selected ‘No’ in response to the question ‘Do you want to appoint a representative to act on your behalf and to be your authorised recipient?’.[22]
[22] Court book at page 62.
In the absence of anything further on this point, I agree with the Minister’s submissions that there is insufficient evidence to support a finding of fraud, if that is what is suggested by paragraph [8] of the applicant’s written submissions.
CONCLUSION
For the reasons given, the Tribunal’s decision is not affected by any jurisdictional error.
I therefore order that the applicant’s application be dismissed and that the applicant pay the first respondent’s costs in a sum to be fixed if not agreed.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Associate:
Dated: 24 August 2023
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