Anl18 v Minister for Home Affairs

[2019] FCCA 2093

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANL18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2093

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth).

Applicant: ANL18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 302 of 2018

Judgment of: Judge Riethmuller

Hearing date: 14 March 2019

Date of Last Submission: 14 March 2019

Delivered at: Melbourne

Delivered on: 14 March 2019

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Australian Government Solicitor

THE COURT ORDERS THAT:

1. The Application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $2,500.

AND THE COURT DIRECTS THAT:

1. A copy of the Reasons for Judgment be provided to the Registrar of this Court for referral to the Office of the Legal Services Commission in New South Wales.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 302 of 2018

ANL18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application to reinstate judicial review proceedings dismissed by a Registrar on 28 November 2018.

2. The applicant says that she had a lawyer assist her in lodging her application, and she did not know whether she received a stamped copy of the application.  This was set out (at [4]) of her affidavit filed in these proceedings.  Remarkably, the same lawyer whom the applicant said helped her lodge the application also did the affidavit. 

3. In any event, the lawyers for the Minister sent the applicant a letter confirming the court date.  That letter was sent to the applicant’s email address, which she says she still uses.  The applicant does not mention that in her affidavit.  The applicant says that she moved from the residential address she put in her court papers last year.  That address was in Craigieburn in Victoria.  The applicant says that before Christmas, she moved to Shepparton and then to Griffith.  However, on 22 January 2019, the applicant used the Craigieburn address as her address for service in her affidavit.

4. I do not accept the applicant’s explanations for not attending at court. 

5. Nonetheless, I turn to consider whether she has an arguable case.  Even if the applicant has no good reason for failing to attend at court, if she has an arguable case, I need to consider reinstating her application. 

Grounds of Judicial Review

1. In this case, the applicant’s grounds for judicial review of the Administrative Appeals Tribunal’s (‘the Tribunal’) decision are as follows:

   1. The Tribunal failed to consider many vital integers of my case;

   (a) The tribunal failed to consider the fact that as a single mother, the income I would be earning in Malaysia is not sufficient to pay off the loan, cover the living expenses and at the same time provide for the growing children.

   (b) The Tribunal failed to consider the consequences of not being able to pay off the loan on the wellbeing of my children especially if there is no breadwinner in the country.

   2. The Tribunal failed to consider many vital evidence that are relevant to my case;

   3. The Tribunal deprived me of procedural fairness;

   4. The Member has failed to do his duty.

Ground One

1. The first ground does not appear to me to raise a claim that could found a protection visa.  However, the substance of it was considered by the Tribunal.  The Tribunal said at [18]:

   18. In her Department application she spoke of her financial commitments and the fact that she travelled to Australia to find better opportunities. She told the Tribunal that she travelled to Australia to pay back a loan and that she sought a protection visa in order to be able to work. This evidence does not indicate that there would be a real chance of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion if she returned to Malaysia in the reasonably foreseeable future. While the bank may foreclose on the loan if she was unable to pay, and she may suffer financial difficulties, the harm she may suffer would not amount to harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. When this was put to the applicant, she confirmed that the reason she was in Australia was to work, to pay debts, and to earn money. She said that she feared being declared bankrupt so that she could not own a house or assets or leave Malaysia and did not want to disappoint her family. She said that she did not know anything about the criteria for the protection visa, and knew that her problems had ‘nothing to do with a protection visa’. She said her friend told her to apply so she could get a bridging visa. She said that her intention was to get work rights, and she wanted a bridging visa in order to work. On this evidence, it is clear that she does not seek protection on the basis that she fears serious harm if she returns. She has stated that her intention was to get work rights in Australia. While she has stated she fears not paying her debts and becoming bankrupt, and disappointing her family, the Tribunal is not satisfied that she has a genuine fear of serious harm if she returned to Malaysia in the reasonably foreseeable future, given that she has stated her intention was to work in Australia.

2. The Tribunal also considered whether or not her poverty may be a basis for a visa on the complementary protection provisions.  The Tribunal said (at [24] and [25]):

   24. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk of significant harm. The applicant has submitted that she had travelled to Australia to find a job to support her family and repay her loan. She has not indicated that she would suffer significant harm if she returned to Malaysia, rather stating that she sought a protection visa in order to get work rights. The Tribunal accepts that it may be difficult for her to find a high paying job, given her level of education. If she was unable to repay her loan, she may suffer financial difficulties and as stated by her, she may be declared bankrupt. She said that she is not a middle income earner but is on the ‘bottom line’, and whatever she earned was not enough to survive.

   25. The Tribunal accepts that it may be difficult for the applicant to meet her financial commitments in Malaysia. However, on the evidence provided the Tribunal is not satisfied there is a real risk (more than a remote or insubstantial risk - see the Chan decision) of any of the kinds of significant harm set out in the legislation. The evidence does not suggest that she would be arbitrarily deprived of life, be subject to torture or the death penalty, or be subject to cruel or inhuman treatment or punishment or degrading treatment or punishment. The latter categories require intentional harm, and there would be no intention by government or any other party to harm her. Furthermore, on her evidence, the applicant has had previous employment experience in Malaysia and was also receiving an income from sewing at home. She was able to afford to travel to Australia. She is in touch with three of her siblings who may be able to provide some support. Furthermore, as discussed with the applicant at hearing, independent country sources indicate that Malaysia has a growing economy with fairly low unemployment. This indicates that the chance of significant harm for economic reasons, given the applicant’s circumstances, is remote, even if she is not able to earn a high income. A Department of Foreign Affairs and Trade report states that:

   “Malaysia is classified by the World Bank as an upper middle-income.. economy.. ln 2015 its GDP growth was 5%. Malaysia's economic growth has led to a significant reduction in poverty.. ln December 2015 the Malaysian Department of Statistics reported a labour force participation rate of 67.8% and an unemployment rate of 3.3%.” [FN: Department of Foreign Affairs and Trade, Country Information Report, 19 July 2016].

3. I am not persuaded that the applicant has an arguable case on this ground.  The issue was clearly dealt with by the Tribunal.

Ground Two

1. The second ground alleges that the Tribunal failed to consider ‘vital evidence’.  The applicant could not identify any evidence that the Tribunal failed to consider.  This ground cannot succeed. 

2. In circumstances where there is nothing to support the ground, it was improperly included in her grounds of application.  It is a matter of real concern that her lawyers would include a ground for which there appears to have been no arguable basis.

Ground Three

1. The third ground alleges that the Tribunal did not provide the applicant with procedural fairness.  The applicant did not raise any complaint about this in her submissions before me.  The applicant had an oral hearing with the Tribunal in November 2017.  The Tribunal clearly heard her evidence and considered her evidence in their decision. 

2. Like the last ground, this ground does not appear to have had any arguable basis. 

Ground Four

1. The fourth ground alleges that the Tribunal member failed to do his duty.  This ground must have been drawn without the lawyer reading the decision, because in the decision the Tribunal member’s name appears, and her name is Jane.  There is nothing to indicate that the member failed to perform any duty upon her. 

Conclusion

1. None of the grounds in this case shows an arguable case.  In these circumstances, I therefore dismiss the application to reinstate the proceedings. 

2. Given what has been said about the lawyers’ involvement in this case, I request that the Registrar refer the court papers to the relevant legal services commission to consider whether or not they should investigate the lawyers who prepared the applicant’s material, not only with respect to the conduct leading to her failure to attend on the first court date but importantly the drafting of grounds for which there was no basis.

   [Further argument ensued]

Costs

1. In this matter, the Minister was entirely successful.  The applicant’s case always appeared hopeless.  It is appropriate that the applicant pay the Minister’s costs.  Having regard to the court scale, I find that the sum sought of $2,500 is reasonable.

2. I therefore order accordingly.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 31 July 2019