Arf17 v Minister for Immigration
[2018] FCCA 232
•1 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARF17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 232 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.424A, 422B, 425 |
| Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1 |
| Applicant: | ARF17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 475 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 1 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 1 February 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms K Crawford of HWL Ebsworth |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with item 2, Division 1, Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 475 of 2017
| ARF17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
As Corrected
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 January 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to the applicant’s claims for protection, and the decision of the Tribunal on them, are set out in the Minister’s outline of legal submissions filed on 19 January 2018.
The applicant is a male citizen of Malaysia.[1] He arrived in Australia on 1 January 2013 and lodged an application for a protection visa on 28 July 2014.[2]
[1] Court Book (CB) 27
[2] CB 1
In his visa application, the applicant claimed to have incurred business debts, and to have subsequently been introduced to a gang who took advantage of the applicant and involved him in illegal activities. When the applicant refused to be involved he was threatened by the gang.
In his oral evidence to the delegate, the applicant claimed that he would be harmed or assaulted by loan sharks in Malaysia because of an outstanding debt. He stated that he ran his own business in Malaysia. However in 2011, when business was slow, he was introduced to loan sharks by a friend and he accumulated a debt which he could not pay. He stated that from 2011 until he left Malaysia he was constantly threatened and harassed by the loan sharks and that, as he was unable to make a payment, he was beaten.[3]
[3] CB 55
On 6 March 2015, a delegate of the Minister refused the visa application.[4] The delegate rejected the applicant's credibility as a witness and found his claims were not Convention related.[5] With respect to complementary protection, the delegate also found that the applicant could obtain State protection and could relocate.[6]
[4] CB 52
[5] CB 56
[6] CB 58
The applicant sought review of the delegate's decision by the Tribunal, by application lodged on 26 March 2015.[7] The Tribunal convened a hearing of the application on 15 November 2016,[8] at which the dispositive issues were discussed with the applicant.
[7] CB 62
[8] CB 74
On 23 January 2017, the Tribunal affirmed the delegate's decision.[9] The Tribunal accepted that the applicant ran a small business, faced some financial difficulties, and borrowed money from money lenders.[10] The Tribunal was also prepared to accept that those persons came to seek payment from the applicant and, in doing do, threatened, harassed, and slapped the applicant, and asked him to collect debts for them, which the applicant refused to do.[11] The Tribunal accepted that the applicant stayed with his sister for a period, to avoid the money lenders,[12] and that he did not seek police help but could have done so.[13]
[9] CB 87
[10] at [23]
[11] at [24]
[12] at [25]
[13] at [26]
However, the Tribunal was not satisfied that the applicant suffered serious or significant harm, or that his claims had a nexus to any Convention ground.[14]
[14] at [27]
The Tribunal considered the complementary protection criterion.[15] The Tribunal was satisfied that, should the applicant be questioned by Malaysian immigration officials on arrival in Malaysia, this would not constitute significant (or serious) harm. Further, the Tribunal considered[16] the applicant's evidence as to his ability to relocate within Malaysia. The Tribunal considered independent country information of relevance to this issue.[17] It was not satisfied that the applicant would be targeted by loan sharks irrespective of where he lived in Malaysia. The Tribunal found that, should the applicant be at any risk of harm, it would be localised and the Tribunal was satisfied on the basis of the evidence it had outlined above that it was reasonable for the applicant to relocate.[18]
[15] from [28] and see the Tribunal's conclusion at [32]
[16] at [29]
[17] at [30]
[18] at [30]
These proceedings began with a show cause application filed on 17 February 2017. The applicant continues to rely upon that application. There are three grounds in it:
1. AAT made a decision without fairness.
2. AAT didn’t consider that I had no family members in Malaysia.
3. AAT believed what I said but refused me based on independent information. This is unfair and mistake to rely on others information but me.
(errors in original)
In addition to the short affidavit filed with the application, I have before me as evidence the court book filed on 29 June 2017.
Only the Minister filed prehearing submissions in accordance with procedural orders made by a registrar.
I invited oral submissions from the applicant this afternoon. He is concerned that while his claims of past harm were believed, he was still refused the protection he seeks. I explained to him that the Tribunal not only had to consider what happened in the past but also what might happen in the future. The Tribunal concluded that the applicant would not face a real risk, or real chance, of serious or significant harm if he returned to Malaysia, and that whatever risk he faced in his home area could be avoided by relocation. It appears to me that the conclusions reached by the Tribunal were open to it on the material before it.
It also appears to me that the process followed by the Tribunal was procedurally fair. In other respects, I agree with the Minister’s submissions concerning the grounds of review.
Ground 1 alleges that the Tribunal “made a decision without fairness”.
The Tribunal's obligations to afford procedural fairness to an applicant are set out in Division 4 of Part 7 of the Migration Act 1958 (Cth) (Migration Act). Section 422B of the Migration Act has the effect that the relevant provisions are an exhaustive statement of the natural justice hearing rule, in relation to the matters dealt with. It is apparent that the applicant does not regard the decision arrived at through a fair process as being a fair decision. However, what is required by procedural fairness is a fair procedure, not a fair outcome. As Brennan J (as his Honour then was) said, in Attorney-General (NSW) v Quin:[19]
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
[19] (1990) 170 CLR 1 at [39]
The Tribunal complied with its procedural fairness obligations as codified by the provisions in Division 5 of Part 7 of the Migration Act.
It should be noted that the Tribunal accurately recited the applicant's claims, from [9(a)] of the reasons for decision. The applicant submitted no corroborative documentary evidence. The Tribunal explored the applicant's claims at the hearing.[20] The Tribunal asked particular questions as to those claims, including whether the applicant had suffered any other physical abuse,[21] and also traversed the issue of relocation.[22] The Tribunal complied with s.425 of the Migration Act. There was no information before the Tribunal giving rise to its s.424A obligations.
[20] from [16]
[21] at [18]
[22] at [29]
Ground 2 alleges that the Tribunal did not consider that the applicant had no family members in Malaysia.
Contrary to this ground, the applicant raised no claim, and no impediment to relocation, by reference to any absence of family members in Malaysia. According to the decision,[23] the applicant's parents are deceased and his sisters live in Singapore and Beijing.
[23] at [15]
No arguable case of jurisdictional error is otherwise disclosed by the Tribunal's relocation finding. The Tribunal was not satisfied that the applicant would be targeted by loan sharks irrespective of where he lived in Malaysia. The Tribunal referred to country information, and was satisfied that should the applicant be at any risk of harm, it would be localised and “the evidence outlined above” satisfied the Tribunal that it was reasonable for the applicant to relocate. Read fairly, the evidence “above” to which the Tribunal referred was the evidence at [29], where the Tribunal set out the applicant's evidence when asked why he was unable to relocate. In response to this question, the applicant raised only a claim that he would be located by the gangs, who ran a national organisation. The Tribunal put to the applicant country information in response, and the applicant had no further comment. The Tribunal's finding at [30], by reference to [29], evidences consideration of the reasonableness of relocation in light of the absence of any claim by the applicant that relocation would not be reasonable in the sense of being “practicable”.
Ground 3 alleges that the Tribunal refused the application based on independent country information, which is alleged to be an unfair and mistaken approach. There is no jurisdictional error in the Tribunal relying on country information and the weight to give such information is a question of fact for the Tribunal.[24]
[24] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]
Further and more generally, it is submitted that the decision of the Tribunal is not otherwise affected by any arguable jurisdictional error.
The Tribunal's finding that the applicant had not suffered past serious harm was a question of fact and degree, for it alone.[25]
[25] Minister for Immigration v WZAPN; WZARV v Minister for Immigration [2015] HCA 22 at [41]; VDAU v Minister for Immigration [2004] FCAFC 32 at [24]; VBAS v Minister for Immigration (2005) 141 FCR 435 at [28] and cases there cited
The Tribunal's conclusion stated at [27] should be read in light of the decision as a whole and, in particular at [18], where the Tribunal explored with the applicant the nature of the physical harm he incurred (he was slapped on the face), and at [24], where the Tribunal accepted the applicant's claims as to the harm suffered.
Similarly, the Tribunal's finding that the applicant's claims were not Convention related was a question of fact.[26] The Tribunal's conclusion at [27] should be read with [31], where the Tribunal repeated its finding as to the absence of any Convention nexus, but also referred inclusively to four of the five Convention reasons. Further and in any event, there was no necessity for the Tribunal to elaborate on its finding that the harm feared by the applicant was unrelated to the Convention grounds. No possible Convention ground was suggested on the face of the material before the Tribunal.
[26] Peiris v Minister for Immigration (1999) 58 ALD 413 at [18]-[23]; Ramirez v Minister for Immigration (2000) 176 ALR 514 at [38], [43]; SZDJQ v Minister for Immigration [2006] FCA 533 at [38]
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant was concerned about his capacity to pay but did not otherwise oppose a costs order.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with item 2, Division 1, Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 9 February 2018
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