Aqg17 v Minister for Immigration

[2019] FCCA 1536

FEDERAL CIRCUIT COURT OF AUSTRALIA

AQG17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1536

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of a Delegate of the Minister for Immigration to refuse Protection visas to the applicants – claim that the Administrative Appeals Tribunal committed jurisdictional error – no such jurisdictional error established – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

First Applicant: AQG17

Second Applicant: AQH17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 449 of 2017

Judgment of: Judge Dowdy

Hearing date: 14 May 2019

Delivered at: Sydney

Delivered on: 14 May 2019

REPRESENTATION

The Applicants appeared
in person.

Counsel for the First Respondent: Mr N. Swan of Counsel

Solicitors for the First Respondent: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 16 February 2017 is dismissed.

2. The Applicants are to pay the First Respondent’s costs of the proceeding in the sum of $5,400.

3. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicants have up to and including 26 June 2019 to file any Notice of Appeal from orders 1 and 2 above in the Federal Court of Australia.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 449 of 2017

AQG17

First Applicant

AQH17

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

EX TEMPORE

(Revised from Transcript)

Introduction

1. The First Applicant in this proceeding is a female citizen of Malaysia aged 39 years, having been born on 16 August 1979. The Second Applicant is a male citizen of Malaysia aged 40 years, having been born on 25 September 1978 and is the de facto partner of the First Applicant since, apparently, 1 January 2013 (collectively the Applicants).

2. By Application filed in this Court on 16 February 2017, they seek to quash and impliedly have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 20 January 2017 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 13 July 2015 refusing to grant to them Protection (Class XA) (Subclass 866) visas (Protection visa(s)).

Background

1. The Second Applicant arrived in Australia on 12 February 2014 and the First Applicant arrived on 19 April 2014, both on Electronic Travel Authority (Class UD) (Subclass 601) visas. They applied for Protection visas on 12 May 2014 with the First Applicant being the primary applicant, and the Second Applicant being a dependant applicant as a member of the First Applicant’s family making no claims for protection in his own right.

Claims for Protection

1. In a Written Statement forming part of her Protection visa application, the First Applicant claimed as follows:

   a)she was born in Kedah, Malaysia;

   b)she married her ex-husband in 1999 and by 2004 they had three children. She was a homemaker and he was a bricklayer. They had low income and life was difficult.  Due to her ex-husband’s gambling problem she took on paid work and when he told her about his debt of 5000 ringgits she had to go to her family with shame and ask for a loan;

   c)she and her husband then went to work in Singapore between 2006 and the end of 2008. The vendor business they started on return was not successful. Her husband returned to his gambling and loose friends and developed a relationship with another woman. Her husband later promised her he would change and the First Applicant forgave him. He then had another debt and “the debtor (sic) gave the applicant time to pay the debt”;

   d)her husband seemed to change for a year or so and worked peacefully and gave up his old friends. However in 2011 he started to give the First Applicant money and would not explain where it came from. This money she discovered was gambling money and again, she discovered, there were some debts. Her husband went missing and the “debtors (sic) came to harass me all the time”;

   e)she filed for divorce with the help of her family in 2011. Her ex-husband kept asking her to forgive him but as he was such an irresponsible man she had to pay all the family expenses and the debt and she did not agree;

   f)in 2012 she was divorced officially and was granted full custody of the three children. Her ex-husband was allowed to see the children every week but he did not; and

   g)in 2013 she came to know her current boyfriend. In order to avoid harassment from the debtors to whom her ex-husband owed money she made the decision to come to Australia. The current boyfriend shared her hardship and gave up his career to come to Australia with her. He used his savings and arranged everything for her. A lot of people “from the same place” told them that they could seek protection from the Australian government.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the relevant grounds and criteria for the grant of the Protection visas in this proceeding can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5]  The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia 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; ....

Decision of Delegate

1. The First Applicant attended an interview with the Delegate on 18 February 2015.

2. In the result the First Applicant gave evidence to the Delegate which amplified the evidence given by her in her written statement and added at the interview with the Delegate that her ex-husband had taken her identity card and had used it when he was negotiating for a loan.

3. The Delegate found in the result that the First Applicant was not a witness of truth and that her claims had been concocted.  She found that the First Applicant was not claiming to be at risk of persecution for any of the five categories under the Refugees Convention, and that there was no real chance of the First Applicant suffering significant harm if she returned to Malaysia and the Delegate refused to grant Protection visas to the Applicants. 

Tribunal Decision

1. The Applicants lodged an application for merits review of the Delegate’s decision on 13 August 2015, and the First Applicant appeared before the Tribunal at a hearing on 15 December 2016 to give evidence and present arguments.

2. At [10] of its Decision Record the Tribunal recorded the evidence and claims given and made by the First Applicant in her Written Statement. At [11] it recorded her evidence given at the interview with the Delegate and at [15] the Tribunal recorded the evidence and claims made by the First Applicant at the Tribunal hearing. 

3. From [17] – [28] of its Decision Record the Tribunal recorded its findings and the reasons for those findings.

4. At [18], the Tribunal summarised the substance of the First Applicant’s claims as follows:

   [18] The Applicant claims to fear harm in Malaysia from money lenders over debts incurred in her name by her ex-husband.  She claims the police will not protect her because they are corrupt.

5. Then at [20] of its Decision Record the Tribunal found as follows in relation to the claims made with respect to the Refugees Convention criterion:

   [20] I have considered the Applicant’s account of her experiences in Malaysia together with the documentary material she has submitted to the Department and the Tribunal. Having done so I am not satisfied that the harm she clams to fear could be seen as arising for reason of any of the five grounds enumerated in the Refugees Convention. The source of the harm is not the Malaysian state but instead private individuals who are said to be acting for private motives in demanding the repayment of money owed to them. Although she claims the Malaysian police would not act to protect her, there is nothing in the information she has provided to the Tribunal which would lead to a conclusion that she would be discriminatorily denied protection for a Convention reason. She suggested at the hearing that there is corruption in the Malaysian police which allows wrongdoers to escape justice by paying bribes – a view she based on her own experience working for an illegal betting business – but even if this were true in her case it would not in itself engage a Convention ground. I note in particular that at no stage in the application for protection has the Applicant or her partner suggested they would face harm in Malaysia because of their Chinese race or ethnicity, or that this would be a reason why the police or other agents of the Malaysian state would not protect them.

6. In relation to the complementary protection criterion claim, the Tribunal recorded at [24] of its Decision Record that it was not satisfied with the truth of the First Applicant’s claims that “she was held responsible for debts incurred by her ex-husband or that she was pursued and harassed by money lenders as a consequence” for the reasons expressed by it at [23], which included the notable vagueness of the First Applicant’s evidence and her inability to give “basic information as [to] the identity of the money lenders who were harassing her over unpaid debts or any of the circumstances of the harassment she suffered”.

7. Then at [25] of its Decision Record the Tribunal stated that even if it had accepted the claim that the First Applicant had made about harassment from the money lenders, which it did not, she had not claimed “to have suffered any kind of physical harm or property damage or that any of her family were harmed” and that the harassment which she had described was no more than “an occasional and unwelcome nuisance”.

8. Accordingly, the Tribunal was not satisfied that the First Applicant satisfied either the Refugees Convention criterion or the complementary protection criterion and it affirmed the decision of the Delegate not to grant Protection visas to the Applicants.

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds relied upon by the Applicants in their Application to this Court were as follows:

   1.Tribunal member did not correctly understand what had happened to me in Malaysia, which caused him to doubt my credibility.

   For example, there is no inconsistency on the use of my identity card by my husband.

   2. Tribunal member did not correctly consider what would happen to me if I returned to Malaysia.

   3.      Evidence in support of my claims was not taken into account.

Consideration

Ground 1

1. This Ground fails to establish that the decision of the Tribunal is affected by jurisdictional error. First, at a factual level it fails because it is clear that the Tribunal did understand the nature and scope of the First Applicant’s claims to protection and what she claimed to have happened to her in Malaysia before she came to Australia.  Further, in my view the Tribunal gave meaningful consideration to these claims but unfortunately for the First Applicant the Tribunal did not accept them on grounds and reasoning which do not appear to me to be legally unreasonable or without an intelligible justification.

2. In relation to the claim that the First Applicant’s ex-husband had stolen and used her identity card without her consent when he was negotiating a loan, the Tribunal recorded the claim at the second bullet point of [11] of its Decision Record and further mentioned it at the tenth bullet point of [15] of its Decision Record. The Tribunal then at [23] observed as follows:

   [23] …As put to her at the hearing, the claim that her husband used her identity card to obtain the loan was first mentioned at the protection visa interview and did not appear in her written statement despite its obvious significance for her claim to fear harm in Malaysia.  Nor is it at all clear how her husband could have involved her in responsibility for the repayment of loans in this way:  given that they are said to be illegal transactions, which certainly could not be enforced in law, there appears to be no purpose to be served in his having used her identity card, whether or not with her knowledge…

3. That reasoning does not seem to me to be legally unreasonable. Otherwise, this Ground may seek impermissible merits review and it is not made out. 

Ground 2

1. This Ground appears to argue with the findings of the Tribunal. Further, the Tribunal did consider the First Applicant’s claims of what would happen to her if she returned to Malaysia: see the second-last bullet point of [11], [18], [21], [25] and [26] of its Decision Record. At the seventh bullet point of [15] the Tribunal recorded of the First Applicant that “… She confirmed she had never been physically harmed, although she feared she would be harmed eventually”.

2. Ground 2 is not made out.

Ground 3

1. This Ground is general and unparticularised and does not identify the evidence in support of the First Applicant’s claims which it is asserted was not taken into account. It is of course a well established principle that an administrative decision-maker, such as the Tribunal, is required to deal with the case raised by the material or evidence before it, and where it fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to afford procedural fairness and a constructive failure to exercise jurisdiction: NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at 17 [55] per Black CJ, French and Selway JJ.

2. However, in my view the Tribunal did consider her evidence and claims and engaged with them in an active intellectual process which is evidenced from [10] – [16] of its Decision Record.

3. In my view, Ground 3 is also not made out.

4. I note that Mr Swan of Counsel, who appeared for the Minister as a model litigant, was prepared to advise the Court that he could see no other further grounds or matters that would help the Applicants in establishing jurisdictional error.

Conclusion

1. The Applicants have failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date: 5 June 2019