Awk18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1151
•6 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AWK18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1151
File number(s): SYG 500 of 2018 Judgment of: JUDGE GOODCHILD Date of judgment: 6 December 2023 Catchwords: MIGRATION LAW - application for judicial review – decision of the Administrative Appeals Tribunal – Protection Class XA (subclass 866) visa – where the applicant claims to fear harm due to Malaysian money lenders – where applicant found not to be a credible witness – where applicant’s claims raise no jurisdictional error – no jurisdictional error established – application dismissed with costs. Legislation: Migration Act 1958 (Cth) Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193
Craig v State of South Australia (1995) 184 CLR 163
DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of hearing: 11 October 2023 Place: Sydney Applicants: In Person Solicitor for the Respondents: Ms Nirmaleswaran of Mills Oakley Lawyers ORDERS
SYG 500 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AWK18
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULITCULTURAL AFFAIRS
First respondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GOODCHILD
DATE OF ORDER:
6 DECEMBER 2023
THE COURT ORDERS THAT:
1.The applicant’s application filed on 26 February 2018 be dismissed.
2.The applicant pay the first respondent’s costs in the sum of $4,000.00.
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
JUDGE GOODCHILD
INTRODUCTION
This application concerns an application for judicial review of a decision of the Administrative Appeals Tribunal (the ‘Tribunal’) made on 7 February 2018. By that decision, the Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the ‘delegate’) refusing to grant the applicant a Protection Class XA (subclass 866) visa (the ‘protection visa’) made on 21 March 2017.
BACKGROUND
The applicant in these proceedings is a national of Malaysia, who arrived in Australia on 12 August 2016 as the holder of an Electronic Travel Authority (subclass 601) visa. On 24 October 2016, the applicant applied for a protection visa.
On 21 March 2017, the delegate made a decision refusing to grant the applicant the protection visa pursuant to s 65 of the Migration Act 1958 (Cth) (‘the Act’), on the basis that the delegate was not satisfied that the applicant is a refugee as defined by s5H(1) of the Act, and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act.
On the same day, the applicant was notified of the delegate’s decision via email correspondence sent to the email address listed on his protection visa application.
On 27 March 2017, the applicant lodged an application with the Tribunal for review of the delegate’s refusal decision.
On 29 March 2017, the Tribunal acknowledged receipt of the applicant’s application via email correspondence. In that correspondence, the Tribunal invited the applicant to provide material or written arguments for the Tribunal to consider when making its decision. The applicant did not provide any further material to the Tribunal.
On 22 January 2018, the Tribunal invited the applicant to a Tribunal hearing. The hearing was to take place on 7 February 2018 at 2:30pm (NSW Time) in Coffs Harbour, the applicant’s place of residence as at the time he lodged his application.
On 1 February 2018, the applicant emailed the Tribunal requesting the location of the hearing be changed from Coffs Harbour to Sydney as he was moving to Sydney in the weekend that followed.
On 2 February 2018, the Tribunal responded to the request for a location change and confirmed that the hearing would now take place in the Tribunal’s Sydney location. The hearing remained scheduled for 2:30pm (NSW Time) on Friday 7 February 2018.
On 7 February 2018, the applicant attended a hearing before the Tribunal. At the hearing the applicant appeared via video conference link with the assistance of an interpreter in the Malay language. The Tribunal records indicate the hearing lasted approximately 12 minutes.
The Tribunal affirmed the delegate’s decision.
By an Originating Application filed in this Court on 26 February 2018, the applicant seeks judicial review of the decision of the Tribunal.
I note that in his application the applicant did not indicate that he was seeking an order from the Court that the decision of the Tribunal be quashed.
Allowing for the fact that the applicant is self-represented, when read together with the Affidavit in support filed on 26 February 2018, it is clear that the applicant seeks to have his application determined according to law and that the application ought to be taken to have been amended accordingly.
For the reasons that follow, the application for judicial review is dismissed.
RELEVANT STATUTORY FRAMEWORK
The relevant provisions of the Act were as follows:
36 Protection visas—criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) 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; or
…
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally
(Emphasis added)
Section 5H(1)(a) of the Act, provides that a person is a refugee if in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country. In the circumstances where a person is without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country, as per s 5H(1)(b) of the Act.
As defined by s 5J(1) of the Act, a person has a ‘well-founded fear of persecution’ if the person fears being persecuted for reasons of race, religion nationality, membership of a particular social group or political opinion (s 5J(1)(a)), there is a real chance they would be persecuted for one or more of those reasons (s 5J(1)(b)), and the real chance of persecution relates to all areas of the relevant country (s 5J(1)(c)).
As per s 5J(4), if a person fears persecution for one or more of the reasons mentioned in subparagraph 5J(1) above, that reason, or reasons, must be the essential and significant reason, or reasons, for the persecution, the persecution must involve serious harm to the person, and the persecution must involve systematic and discriminatory conduct.
TRIBUNAL’S DECISION
The Tribunal’s decision can be summarised as follows.
After setting out the criterion relevant to the visa the applicant sought at paragraphs [3] to [7] of its decision record, the Tribunal recorded the policy guidelines taken into account as per Ministerial Direction No.56, made under s 499 of the Act. The relevant policy guidelines were PAM3 Refugee and humanitarian – Complementary Protection Guidelines, the PAM3 Refugee and humanitarian – Refugee Law Guidelines, as well as relevant country information assessments as prepared by the Department of Foreign Affairs and Trade expressly for protection status determination.
The Tribunal set out the background facts and the applicant’s responses to questions asked in his visa application at paragraphs [11] to [12].
Applicant’s loan shark claim
At paragraph [12] the applicant’s evidence, as per his written documents, is summarised in the Tribunal’s decision record as follows (errors in original):
“I leave from that country because I have lost my safety and happiness there due to being a guarantor for my friend’s loan from illegal loan sharks. My friend really badly needs my help to make his business better and he was my best friend too. So, I just helped him to be a guarantor and he just lost in his new business and all his money was washed out. So, he just missing in action where he failed to pay his debt and interest to that illegal loan sharks. Since I am his guarantor now I were obligated to pay all his debts nearly millions of ringgits. This is totally impossible for me and this not mine too. I just faced many consequences and really cannot take their physical and mental torturers on me and I just moved from that country to protect my self.”
“The loan sharks people has followed me from my work place to my home and they have hitted me to tell the truth about where my friend went missing and threatened me to settle his debts on them. Even they have take over my bank card so, whenever I am having my salary they will take their loan settlement amount from it and forced and tortured me physically to reveal my password of my bank card. They also have poured red paint all over my home it is to show their fierce and as a warning for me.”
The applicant says he cannot obtain help from Malaysian authorities because: “But I only seeks helps from my friend and relatives, since it is illegal loan sharks related problem they really don’t want involve in it because they afraid may be they will be harmed and the illegal loan sharks are most political and financial empowered people mostly.”
The applicant further says that, “The authorities or any parties will not step ahead to help me because this illegal loan sharks is the ex-smuggling gang leader and he has many political and financial strength, and many link all over that country.”
The applicant says he cannot move because, “Previously, I have tried to move within that country. But finally end up chased by the illegal loan sharks. Wherever I go they just followed me completely and really never leave me in peace and alone until I am moving out completely to other country.”
“I really do not want to relocate within that country because there is no future and life for me, if I am going to be in that country. It will be totally a useless and slave life I am going to be live, unless I have move far away from that country completely for my self protection.”
“I definitely will be undergo harms and mistreated it I were returned. Whenever I were at that country they never leave me in peace and tortures me almost everyday. Like previously, they have hitted me and insulted me more than that I am just afraid that I will passes my days be being as a slave for them until I am alive because they only will not bother me if I settled that millions of ringgit debt owed by my friend. If I were return nothing I can do and plan for my future and no secure for my life.”
At paragraphs [13] to [15] the Tribunal recorded the applicant’s evidence given orally at the Tribunal hearing.
At paragraphs [19] to [28] the Tribunal set out its finding of fact and consideration in respect of the applicant’s claims and evidence of fear of harm by loan sharks to whom he owed money, having guaranteed a loan for his best friend’s business.
The Tribunal at [19] stated it was not satisfied on the material provided in the applicant’s application and at the Tribunal hearing that the applicant had been involved in any lending arrangements of the sort he described. The Tribunal was not satisfied that the applicant had been directly, or indirectly, threatened with harm by any loan sharks.
Tribunal’s credibility finding
Relevantly, at paragraph [20] of its decision record, the Tribunal stated that it did not consider the applicant to be a credible witness. The Tribunal noted that the applicant was ‘unable to provide any meaningful detail about the events he described in broad brush fashion.’ The Tribunal also considered it unusual that if the applicant had ‘actually’ guaranteed a loan for their best friend’s business, that he did not know the nature of the business, nor could he recall any details of when he last spoke to the best friend.
At [21] of its decision record, the Tribunal was not satisfied that the applicant had a fear of being persecuted for any of the reasons set out in the relevant legislation, and that he had not claimed he would suffer any harm for reasons of race, religion, nationality, membership of a particular social group or political opinion.
Consequently, at paragraph [23] the Tribunal stated:
The Tribunal is not satisfied that there is a real chance that the applicant will be subject to harm of any type – including serious harm – if he returns to Malaysia now or in the reasonably foreseeable future. Nor is the Tribunal satisfied that there is a real chance that the applicant will face serious harm for any other reason. Having considered the evidence before it, the Tribunal finds that there is no real chance that the applicant would be persecuted for any reason (including race, religion, nationality, membership of a particular social group or political opinion) if he was to return to Malaysia.
The Tribunal did not accept that the applicant had a well-founded fear of persecution in Malaysia and was therefore not a refugee as defined by s 5H.
At paragraph [25], the Tribunal also considered whether the applicant met the requirements for the granting of a visa under the complementary protection provisions in s 36(2)(aa) of the Act, but ultimately found that he did not. This view was formed on the basis that having considered the applicants claims, the Tribunal was not satisfied that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm at the hands of any other person or groups.
The Tribunal affirmed the delegates’ decision not to grant the applicant a protection visa.
PROCEEDINGS IN THIS COURT
The applicant’s application for judicial review, filed on 26 February 2018, does not contain any grounds of application.
The applicant’s affidavit filed in support of his application on the same day, attaching the Tribunal’s decision record, appears to press two grounds for judicial review in the two paragraphs that make up the entirety of the affidavit. Those grounds are:
1.I affirm that the decision is not satisfied by me because I give oral interview to AAT Tribunal; and
2.That I cannot go to my home country because of my situation.
Orders were made by Registrar Cummings on 28 June 2023 that afforded the applicant the opportunity to file an amended application, affidavit evidence and written submissions prior to the hearing. Notwithstanding these orders, the applicant filed nothing further.
The matter was originally listed in person on 10 October 2023 at 10:15am. At this time, no appearance was made by the Applicant. The first respondent’s representative, and Malay interpreter both appeared before me. My associate contacted the applicant by way of teleconference, at which point I was able to speak with the applicant with the assistance of a Malay interpreter.
The applicant indicated to the Court he was unable to appear at the original listing time. In such circumstances, the hearing was adjourned to the following day.
On 11 October 2023 at 2:15pm, the applicant’s judicial review application proceeded to a hearing before me. At the hearing the applicant appeared unrepresented. An interpreter in the Malay language was present to interpret the proceedings for the applicant.
At the outset of the hearing, the applicant confirmed he had received the Court Book filed on 9 April 2018, that he had received the written outline of submissions filed by the respondent on 21 September 2023, and that he had those submissions translated to him in Malay by the interpreter prior to the commencement of the hearing.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that an unrepresented applicant (particularly one seeking protection) should be given an opportunity to explain their grounds of review or what they perceive the Tribunal “did wrong,” the Court gave the applicant an opportunity to make oral submissions and outline any concerns he had with the Tribunal’s decision.
To assist the applicant, the Court explained to him that the possible categories of jurisdictional error for migration decision of this sort, most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
(b)where the decision-maker ignores relevant material: Craig at [198];
(c)where the decision-maker relies on irrelevant material: Craig at [198];
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207] to [208];
(e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16] to [17]; and
(f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26] to [28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the applicant that this Court cannot review the merits of the Tribunal’s decisions or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining whether there is an “arguable case” that the Tribunal made a material error in arriving at the decision to dismiss the applicant’s application, as per Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (‘Liang’).
The applicant was asked if there was anything further he wished to say in respect of his application for judicial review. The applicant’s responses, where relevant, will be included in my consideration of the application below. The Court was satisfied that the applicant understood the proceedings and was able to properly participate in and follow the proceedings.
CONSIDERATION
Ground 1
I affirm that the decision is not satisfied by me because I give the oral interview to AAT Tribunal
By ground 1, the applicant simply sets out his dissatisfaction with the decision of the Tribunal. There is suggestion that this ground alleges that the Tribunal did not take into account any oral evidence the applicant gave at the Tribunal hearing on 7 February 2018.
Absent any particularisation of the ground, it does not identify any jurisdictional error as per WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
In any event, consideration of the Tribunal’s decision records indicates that the Tribunal had regard to the evidence he gave at the hearing.
At [13] the Tribunal noted that the applicant appeared to give evidence at the Tribunal, and did so with the assistance of a Malay interpreter. The Tribunal recorded that the applicant confirmed at the conclusion of the hearing he had understood the Tribunal’s questioning and the interpretation.
At [14] the Tribunal stated the applicant had given oral evidence that he feared returning to Malaysia because of the loan sharks chasing him. That the applicant claimed the loan sharks had contacted his family and told them he would be killed if he returned, and that he was unable to report the threats to the police as “the loan sharks knew gangsters who told the politicians not to accept his complaints.”
At [15] the Tribunal noted the applicant had given oral evidence that he did not know what the nature of the business was that his best friend commenced, with the loan he said he guaranteed. When given the opportunity to provide the Tribunal with further detail surrounding the loan, the threats he claimed were made, and his application for protection generally, he did not provide any further detail or information.
At the hearing before me, I asked the applicant whether he thought there was something he had said to the Tribunal that he believes they had not taken into account. The applicant responded with “they [the Tribunal] wanted evidence but it’s very difficult for me to get evidence because I just wanted to help my best friend.”
Absent any evidence put before me by the applicant to the contrary, the Tribunal did take into account the oral evidence given by the applicant at the Tribunal hearing, and in doing so, came to a finding that was open to it on the material.
As such, ground 1 does not disclose any identifiable jurisdictional error and is dismissed.
Ground 2
I cannot go to my home country because of my situation.
Taken at its highest, this ground asks the Court to undertake an impermissible merits review.
As such, I accept the First Respondent’s submission that per Liang at [272], this ground does not identify a jurisdictional error on the Tribunal’s behalf and should therefore be dismissed.
CONCLUSION
For the reasons given, the Tribunal 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.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Goodchild. Associate:
Dated: 6 December 2023
0
12
1