Asw18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 962
•26 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ASW18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 962
File number: MLG 417 of 2018 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 26 October 2023 Catchwords: MIGRATION LAW – judicial review of the decision of the Administrative Appeals Tribunal to not grant the applicant brothers protection visas – credibility of the applicants’ claims for protection – whether the Tribunal properly considered the Applicants’ claims – unparticularised grounds unsupported by evidence – no jurisdictional error – application dismissed – costs ordered Legislation: Migration Act 1958 (Cth) ss 476 and 474(2)
Federal Circuit Court Rules 2001 (Cth) r 44.12
Cases cited: BDE16 v Minister for Immigration and Border Protection [2019] FCA 816
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760Division: Division 2 General Federal Law Number of paragraphs: 37 Date of last submissions: 18 October 2023 Date of hearing: 18 October 2023 Place: Melbourne The First Applicant: Appearing in person The Second Applicant: Appearing in person Solicitor for the First Respondent: Mills Oakley The Second Respondent: Submitting an appearance, save as to costs ORDERS
MLG 417 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ASW18
First Applicant
ASX18
Second ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
26 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Application filed 19 February 2018 is dismissed.
2.The First Applicant and Second Applicant pay the First Respondent’s costs fixed in the sum of $4,000.
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
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an application filed in this Court on 19 February 2018 (Application), the First Applicant and Second Applicant (together, Applicants) seek judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) dated 23 January 2018 (Tribunal’s Decision), pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act). In the Tribunal’s Decision the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicants Protection (Subclass 866) visas (Visa).
ISSUES IN DISPUTE
The issues in dispute are: whether the Applicants have provided particularised grounds of review; and whether the Tribunal properly considered the credibility of the Applicants’ claims.
SYNPOSIS
The Applicants have failed to provide particularised grounds of review and largely seek impermissible merits review of the Tribunal’s Decision. There is no evidence that the Tribunal did not properly and reasonably make findings regarding the Applicants’ claims. No jurisdictional error has been identified in the Tribunal’s Decision.
BACKGROUND
The Court has before it a Court Book with 157 paginated pages filed by the Minister on 22 January 2019 (Court Book). The Court has reviewed the Court Book in detail. The Minister’s Outline of Submissions, filed on 19 September 2019 (Minister’s Written Submissions) accurately summarise the background to this matter at [2] to [6]. They provide with some amendments as follows.
The Applicants are brothers and citizens of Malaysia.
On 2 March 2016 the Applicants arrived in Australia holding visitor visas.
On 19 May 2016 the Applicants applied for the Visa (Visa Application).[1] In the Visa Application the Applicants claimed that:
(a)The Applicants feared harm in Malaysia from debt collectors.
(b)The First Applicant’s friend attempted to borrow money from a bank for a business venture but was unsuccessful. Consequently, the First Applicant’s friend borrowed money from a ‘triad gang loan shark” and made the First Applicant “collateral” on the loan.
(c)The First Applicant’s friend ran away and the triad gang money lenders targeted the Applicants.
[1] Court Book (‘CB’) 1-63.
On 10 October 2016 the Delegate refused to grant the Applicants the Visa (Delegate’s Decision).[2] The Delegate was satisfied that the Malaysian Authorities would provide an adequate level of protection to citizens and that the Applicants did not have a well-founded fear of persecution. The Delegate did not find that the Applicants were persons entitled to complementary protection.
[2] CB 64-84.
On 14 October 2016 the Applicants sought review of the Delegate’s Decision before the Tribunal.[3]
[3] CB 85-87.
On 19 September 2017 the Applicants were invited to attend a hearing before the Tribunal.[4]
[4] CB 113-118.
On 25 October 2017 the Applicants attended a hearing before the Tribunal (Tribunal Hearing).[5]
[5] CB 119-122.
On 23 January 2018 the Tribunal affirmed the Delegate’s Decision in the Tribunal’s Decision.[6]
[6] CB 126-137.
THE TRIBUNAL’S DECISION
The Tribunal’s Decision appears at pages 127 to 134 of the Court Book. The Minister’s Written Submissions accurately summarise the Tribunal’s Decision at [8] to [11]. They provide with some amendment as follows.
The Tribunal found that the First Applicant’s claims were not credible and his fear of harm from money lenders was not well-founded for the following reasons:
(a)The Tribunal did not find the claim that the First Applicant’s friend used his identity to secure a loan credible. The First Applicant knew nothing about the loan but claimed that when the loan sharks turned up at his work, he went to his home with them and did not seek assistance from police when the Applicants were beaten.
(b)The Tribunal considered the discrepancy between the written claims and oral testimony to be significant and the First Applicant lacked credibility. The First Applicant’s written statement claimed loan sharks threw red paint on his car but the First Applicant claimed he had forgotten this during the Tribunal Hearing.
(c)The Tribunal asked if the gang members were harassing and calling the First Applicant. The First Applicant explained that gang members do not have his phone number and he had not heard from them after moving from his sister’s house. The Tribunal did not find it credible that gang members found the First Applicant at his workplace and forced him to his house but did not have his phone number.
(d)Whilst asylum seekers have difficulties providing documents and expressing their fear, the Tribunal did not find the First Applicant’s answers plausible, compelling and persuasive in the absence of any evidence or documentation.
The Tribunal found that the Second Applicant’s evidence at the Tribunal Hearing was not persuasive, plausible or credible for the following reasons:
(a)The Second Applicant’s recounting of the Applicants’ beating differed from the First Applicant, as the Second Applicant recalled the parents being present. The Second Applicant reasoned that the First Applicant had forgotten.
(b)The Tribunal asked what the Applicants’ parents were doing while the Applicants were being beaten. The Second Applicant explained that they did not know it was happening and that they could not hear, as the Applicants were in the front yard while the parents were inside. The Tribunal asked about events after the beating and the Second Applicant explained that the gang members visited the house once more and then he never saw them again.
(c)The Tribunal asked the Second Applicant about the First Applicant’s claim regarding paint being thrown. The Second Applicant stated he had initially forgotten the incident. The Tribunal found this undermined his credibility and did not accept that the Second Applicant could forget this event.
(d)The Second Applicant gave evidence that the Applicants were working in Australia picking fruit and sent money back to the gang members because they were desperate. The Tribunal found the claim that the Applicants made arrangements to repay a loan they claimed was not theirs whilst living in Australia unbelievable and undermined other claims as the Applicants claimed the gang did not have their phone number and there was no paperwork or documents related to the loan.
The Tribunal was satisfied that the Applicants did not have a well-founded fear of persecution as victims of triad gang loan sharks or any related claims, or any other reasons mentioned in s 5J(1)(a) of the Migration Act. Accordingly, pursuant to s 5J(2) the Tribunal found the Applicants did not have a well founded fear of persecution and did not satisfy s 36(2)(a) of the Migration Act.
PROCEEDINGS BEFORE THE COURT
The Application was filed in this Court on 19 February 2018, within 35 days of the date of the Tribunal’s Decision pursuant to s 477 of the Migration Act.
On 1 September 2023 Orders were for the Applicants to file written submissions, any amended application with proper particulars and any additional evidence. The Applicants did not comply with these orders.
This matter was heard on 18 October 2023 and proceeded in person (Hearing). The Applicants appeared in person and were assisted by a Malay interpreter provided by the Court. At the commencement of the Hearing I confirmed with the Applicants that they required assistance from the interpreter only when they indicated that they did not understand.[7] The Solicitor for the Minister appeared for the First Respondent. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicants to engage with the Court.
[7] Transcript P2:L19-20 and P3:L28-44.
The Applicants relied upon the following documents:
(a)The Application; and
(b)The affidavit of the First Applicant, filed and affirmed 19 February 2018.
The Minister relied upon:
(a)The Response, filed 7 March 2018;
(b)The Minister’s Written Submissions; and
(c)The Minister’s List of Authorities and bundle of authorities, filed 11 October 2023.
The Applicants relied on three (3) grounds of review (Grounds of Review), as follows:
1.I WANT THE JUDGE TO SEE MY REASON THAT MEMBER OF AAT DOES NOT SEE THE THREATS I RECEIVE SERIOUSLY. MEMBER OF ATT ONLY SEE MY CASE THIS IN GENERAL. (Ground 1)
2.THE MEMBER OF TRIBUNAL FAILED TO CONSIDER THE PROVIDED REASON OF DANGER ON THE SITUATION I AM FACING IN MALAYSIA. (Ground 2)
3.MY BROTHER FELT DEPRESSED DURING THE HEARING BECAUSE THE MEMBER OF AAT WAS STRESSFUL TO HIM (Ground 3)
(Words in bold added, otherwise as written)
At the Hearing the Applicants, with the assistance of the interpreter, did not have any further submissions in relation to their Grounds of Review, beyond explaining that because of the passage of time they had no additional information and expressing their intention to separate their visas.[8] As was explained to the Applicants at the Hearing, this Court only has jurisdiction to undertake judicial review and to determine the Application.[9]
CONSIDERATION
[8] Transcript P7.
[9] Transcript P10:L45-P11:L16.
The finding that the Applicants’ claims were not credible
The Tribunal’s Decision is a privative clause decision as defined by s 474(2) of the Migration Act. Section 474 operates to prevent the judicial review of all decision under the Migration Act except those vitiated by jurisdictional error.
The Minister submitted that the Grounds of Review fail to identify any jurisdictional error and fail to raise any arguable case. The Minister cited r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (applicable at the time the Ministers Written Submissions were filed) and the power of the Court to dismiss the Application at the Hearing if it is not satisfied that the Application has raised an arguable case for relief. The Minister further submitted that Ground 1 and Ground 2 seek impermissible merits review of the Tribunal’s Decision.
At the Hearing the Minister sought to primarily rely on the Minister’s Written Submissions. In reply to the submissions of the Minister at the Hearing the Applicants did not have any further submissions in relation their Grounds of Review, apart from seeking to clarify the potential of a costs order.[10]
[10] Transcript P9-10.
To the extent that the Ground of Review object to the Tribunal’s Decision on the basis that the Applicants are unhappy with the decision they must be dismissed. Merits review is not within the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272]
Ground 1 and Ground 2
The Solicitor for the Minister asserted that Ground 1 and Ground 2 are “unparticularised assertions of jurisdictional error”.[11] The Solicitor for the Minister submitted that in any event the Tribunal thoroughly considered the Applicants’ claims and made findings that were logically open to it on the evidence.[12] I accept these submissions.
[11] Transcript P8:L33-36.
[12] Transcript P8:L36-38.
Ground 1 and Ground 2 take issue with the Tribunal’s assessment of the Applicants’ claims. Neither ground is particularised and both grounds cannot be considered to the extent that they seek review of the merits of the Applicants’ claim. An unparticularised ground provides sufficient basis to dismiss this ground: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24].
Further, the Tribunal is entitled to give such weight to the evidence as it thinks appropriate in all the circumstances: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]. The Tribunal has provided reasons for its findings and determinations that were open to it on the evidence. The Applicants have failed to advance why and how the Tribunal did not employ an evident, transparent and intelligible justification within the decision-making process: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, at [105]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [47].
The Applicants have failed to advance a reviewable ground in Ground 1 and Ground 2, and there is no evidence before the Court that the Tribunal did not properly consider the Applicants’ claims. Ground 1 and Ground 2 must be dismissed.
Ground 3
The Minister submitted that Ground 3 is not capable of establishing jurisdictional error as the Applicants do not claim that the Second Applicant’s condition denied him the capacity to properly appear before the Tribunal. The Minister cited Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at 582, [20] and 583, [22] in support of the contention that no jurisdictional error can be established if there was no suggestion to the Tribunal that the Second Applicant’s condition was such to deny him the capacity to participate in the review process of the Delegate’s Decision. The Solicitor for the Minister reiterated that Ground 3 makes an assertion unsupported by evidence and that there was no suggestion by the Applicants that the Second Applicant’s ability to give evidence was impacted.[13]
[13] Transcript P8:L38-42.
I accept the submissions advanced by the Minister. The Applicants did not provide further particulars beyond the statement of fact in Ground 3. The Applicants have not provided any evidence to the contrary and there is no evidence suggesting that the Applicants raised concerns regarding their capacity during the period the Tribunal reviewed the Delegate’s Decision and at the Tribunal Hearing. On the evidence before the Court the Tribunal has satisfied its procedural fairness obligations. To the extent that Ground 3 implies and claims that the Tribunal did not afford the Applicants procedural fairness this ground not been established.
Ground 3 fails to seek judicial review and fails to claim that the Tribunal committed jurisdictional error. Ground 3 must be dismissed.
CONCLUSION
The Grounds of Review fail to provide particularised reviewable grounds. No jurisdictional error has been identified. The Application must be dismissed.
The Minister sought costs fixed in the sum of $4,000.[14] This amount is significantly below the scale amount in Item 1, Division 1 of Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
[14] Transcript P9:L4-10.
Orders will be made accordingly.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 26 October 2023
0
8
2