AZX18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 444

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AZX18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 444

File number:

SYG 552 of 2018

Judgment of:

JUDGE LADHAMS

Date of judgment:

17 May 2024

Catchwords:

MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision not to grant the applicant a protection visa – whether errors in the applicant’s visa application vitiated the Tribunal’s assessment of the applicant’s credibility – whether it was open to the Tribunal to reject the applicant’s claims without positive evidence that the claims were false – whether the Tribunal was required to check the applicant’s claims – where the applicant attempted to raise a new claim for protection on judicial review – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 5AAA, 5J, 36, 476, 477

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12

Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 1253

WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139

Division:

Division 2 General Federal Law

Number of paragraphs:

43

Date of hearing:

10 May 2024

Place:

Perth (via Microsoft Teams)

Applicant:

The applicant appeared in person

Counsel for the First Respondent:

Ms M Kelly

Second Respondent:

Submitting appearance by the second respondent, save as to costs

Solicitor for the Respondents:

Sparke Helmore Lawyers

ORDERS

SYG 552 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AZX18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE LADHAMS
DATE OF ORDER:	17 MAY 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

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 LADHAMS:

INTRODUCTION

1. The applicant is a citizen of Malaysia who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision on 12 February 2018. The applicant made an application to this Court for judicial review of the Tribunal decision pursuant to s 476 of the Migration Act 1958 (Cth).

2. For the reasons explained below, I have found that the grounds raised by the applicant in his application and the matters raised in his oral submissions at the hearing do not establish jurisdictional error in the Tribunal decision. The application for judicial review is therefore dismissed.

   VISA HISTORY AND ADMINISTRATIVE DECISIONS

3. The applicant entered in Australia on an electronic travel authority in October 2016 and applied for a protection visa on 10 January 2017. The applicant claimed to fear harm from his father’s cousin and associates as a result of a debt that his father owed to his cousin.

4. On 9 March 2017 a delegate of the Minister refused to grant the applicant a protection visa. The delegate found that the applicant:

   (a)did not meet the refugee criterion in s 36(2)(a) of the Migration Act because the reason for the claimed fear was not one of the five reasons set out in s 5J(1)(a) of the Migration Act; and

   (b)did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act because the applicant would receive effective protection from the police and the judiciary in Malaysia against any threats from illegal money lenders.

5. The applicant applied to the Tribunal for review of the delegate’s decision on 2 April 2017.

6. On 17 January 2018 the applicant appeared before the Tribunal to give evidence and present arguments in relation to the issues arising in the review. He was assisted at the hearing by an interpreter in the Malay and English languages.

7. The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa on 12 February 2018.

   SUMMARY OF TRIBUNAL DECISION

8. The Tribunal recorded that the applicant claimed his father owed a large sum of money to a relative with police connections and also possibly to loan sharks, and that the applicant feared that his relative or the loan sharks would harm or kill him, if his father was unable to repay the money.

9. The Tribunal expressed concerns in relation to the applicant’s credibility and generally found the applicant’s evidence to be uncertain, changeable and internally inconsistent.

10. The Tribunal accepted that it was plausible that the applicant’s father had an electronics store, that there were financial problems, and that the applicant and his brother went abroad to South Korea (and later Australia) to earn money to support their family. The Tribunal accepted that the family’s needs included ongoing living expenses, the oldest brother’s study and some debts, perhaps arising from a failed business.

11. The Tribunal had significant credibility concerns about the applicant’s claims that his family was subjected to threats and violence in relation to unpaid debts of his father. The Tribunal did not accept that the applicant’s father was indebted to creditors, whether the creditor be an aggressive cousin with police connections or a loan shark or other persons with criminal connections, who had threatened his father or other family members.

12. The Tribunal found that the applicant left Malaysia for Australia in October 2016 for financial reasons, which may or may not be related to his father’s failed business venture or debts. The Tribunal did not accept that the applicant left Malaysia either for South Korea in 2014 or Australia in 2016 because his father’s cousin threatened or harmed the applicant or other family members, that his parents sent him to South Korea to go into ‘hiding’, that the cousin sent thugs to look for him, that the cousin and the thugs assaulted or tried to kidnap him, that he or his father had filed any police report or sought protection, that he went into hiding in Kuala Lumpur before departing for Australia, or that any of the associated claims were truthful. The Tribunal did not accept the applicant’s claim that his father also borrowed money from a loan shark.

13. The Tribunal considered that the applicant’s main focus was having the opportunity to stay and continue working in Australia, rather than to avoid any fear of serious harm or significant harm that he might encounter on his return to Malaysia. In the light of the Tribunal’s findings about the applicant’s experiences in Malaysia and the reasons for his travel to Australia, the Tribunal rejected the applicant’s claim to fear that the cousin and his thugs, or a loan shark and their agents, or anyone, might harm or kill him on his return to Malaysia. The Tribunal found there was no real chance of him being subjected to serious harm amounting to persecution, for any reason, if he returned to Malaysia.

14. The Tribunal was not satisfied that the applicant had a well-founded fear of persecution for one of the reasons in s 5J(1) of the Migration Act now or in the reasonably foreseeable future if he returned to Malaysia, or that there were substantial grounds for believing that there was a real risk that he would suffer significant harm as a necessary and foreseeable consequence of his removal from Australia. The Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36(2)(a) or (aa) of the Migration Act.

    APPLICATION FOR JUDICIAL REVIEW

15. The applicant filed his judicial review application on 2 March 2018, and the application was therefore made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.

16. The judicial review application contains the following grounds (reproduced without alteration):

    1.        There’s an error in my application

    2.        Decision was made without solid proof.

    3.It is requested to Administrative Appeals Tribunal to check back my story as a reconsideration.

17. Pursuant to an Order made by a Registrar of this Court on 26 March 2018, the applicant was required to file and serve any amended application with complete particulars of the grounds and any affidavit evidence by 25 May 2018, and any written submissions 14 days before the hearing. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions in accordance with the Order.

18. The evidence before the Court comprises:

    (a)an affidavit filed by the applicant on 2 March 2018, annexing a copy of the Tribunal decision;

    (b)the court book filed on behalf of the Minister on 27 April 2018; and

    (c)an affidavit of Madeleine Grace Kelly filed on behalf of the Minister on 8 May 2024, annexing correspondence sent to the applicant by the Minister’s lawyer, which confirmed, amongst other things, service of the court book and the Minister’s submissions and list of authorities.

19. At the hearing, the applicant claimed that he never received the court book. I am satisfied, based on Ms Kelly’s affidavit that the applicant was properly served with the court book at the address set out in his application to the Court. The vast majority of documents in the court book are documents that the applicant provided himself to the Department or the Tribunal or that the Department or Tribunal previously provided to the applicant. During the hearing, I had the electronic copy of the court book displayed to the applicant via Microsoft Teams and I identified for him every document contained in the court book. Whenever Counsel for the Minister referred to the court book in her oral submissions, the relevant page of the court book was displayed via Microsoft Teams. At the conclusion of the hearing, both parties confirmed that they were satisfied that the way in which the hearing proceeded with respect to the court book was not unfair to the applicant.

20. The applicant was given an opportunity at the hearing to provide more detail in relation to his grounds of application and to explain what legal error he believes the Tribunal made. While some of the applicant’s oral submissions relate to his grounds, as interpreted by the Minister, the applicant also raised issues beyond those identified in his grounds. The applicant raised the following matters in his oral submissions:

    (a)he does not know who handled his case from the beginning;

    (b)he has family and he needs to look after his family;

    (c)he was previously embarrassed to say that he likes people of the same sex and he therefore needs protection;

    (d)he has an older brother, who has a wife and a small child, and the applicant has to look after the child too, but if he does not have proper documents he cannot take the child to school;

    (e)he has received a fine from the police which he cannot pay if he cannot work; and

    (f)he pays taxes like any other person.

    THE ROLE OF THE COURT IN JUDICIAL REVIEW PROCEEDINGS

21. The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (Wu Shan Liang) at 272.

22. The Court can only grant relief to the applicant if he establishes that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was recently explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):

    2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …

    3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

    IS THE TRIBUNAL DECISION AFFECTED BY JURISDICTIONAL ERROR?

23. I first consider the applicant’s grounds as raised in his application.

    Ground 1

24. The applicant’s first ground asserts that there was an error in his application. At face value, this does not assert any error in the Tribunal decision, but the Minister in his submissions interpreted the ground as reflecting the complaint the applicant made before the Tribunal, where he advised the Tribunal that he paid a person $3,000 to prepare his visa application and that he only gave ‘basic details’ to the person, was not present when the application was prepared and did not confirm its accuracy. The applicant’s submission at the hearing before the Court that he does not know who prepared his application tends to support the Minister’s interpretation of the ground.

25. The Tribunal in its reasons addressed the applicant’s concerns about the preparation of his visa application in its assessment of the applicant’s credibility. This is reflected in [18] and [19] of the Tribunal’s reasons, where the Tribunal said (emphasis added):

    18.The Tribunal notes that the applicant is in his early twenties. He did not appear to have strong presentational skills, and suggested during the hearing that, in seeking protection in Australia, he took his cues from his older brother (who has a separate application before the Tribunal, differently constituted). A striking feature of this case is the discrepancy between the content of the applicant’s written claims, and his oral evidence at hearing. This concerned basic issues, such as: (a) whether the applicant fears harm from a single source, namely well-connected cousin, or from both him and, separately a loan shark; and (b) whether or not the family’s creditors and their hired agents actually harmed or threatened the applicant personally (either before the trip to Korea in 2014, or on his return to Malaysia in mid-2016). At hearing, the applicant said he gave the person who prepared his protection visa application form his basic details. The applicant was not present when this person entered this information on the application form, and hence did not confirm the accuracy of what was on it. Later, the applicant said he paid this person $3,000 for his services. The applicant commented that he has since been arrested and deported.

    19.The above factors indicate the need for care in assessing the applicant’s oral evidence at hearing, and in determining what weight to place on his written claims. The applicant presented evidence to indicate that he (and his older brother) went to work in South Korea and, later Australia, to support his family financially. Beyond this, however, the Tribunal found his evidence to be uncertain and changeable, and it has significant concerns about the truthfulness of his claims that he needs protection in Australia from his father’s creditors. The Tribunal’s full assessment is below.

26. In expressing its conclusion on the applicant’s credibility at [28] and [29] of its reasons, the Tribunal expressed that it had significant concerns with the applicant’s credibility, ‘even after taking into account the factors mentioned above (paragraphs 17-19)’. The Tribunal considered the applicant’s evidence of his experiences in Malaysia to be ‘uncertain, changeable and internally inconsistent’. The Tribunal gave a number of examples in its reasons as to the aspects of the applicant’s account of events in relation to which it had credibility concerns and in relation to which the applicant’s evidence was inconsistent.

27. I accept the Minister’s submission that the Tribunal’s conclusions relating to the applicant’s credibility were open to it for the reasons that it gave and that it is apparent that, in reaching these conclusions, the Tribunal had regard to the applicant’s evidence that another person submitted his application. I further accept the Minister’s submission that the findings were not ones that no rational or logical decision maker could have reached on the evidence before the Tribunal: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130]-[131].

28. The applicant’s submission to the Court that he does not know the person who prepared his visa application is vague and appears somewhat inconsistent with his evidence to the Tribunal to the effect that he gave basic details to the person who completed his application, paid the person $3,000 and that the person was subsequently arrested and deported. In any event, the submission does not establish jurisdictional error in the Tribunal decision or explain any basis on which the applicant’s assertion that he now does not know who assisted him would, in his view, vitiate the Tribunal decision. At its highest, the implication that arises from the applicant’s submissions to the Tribunal and the Court is that the person who prepared the application may have inaccurately recorded some of the information that the applicant provided to the person. The Tribunal was alive to this possibility and took it into account in reaching its decision.    

29. Ground 1 does not establish jurisdictional error.

    Ground 2

30. The applicant’s second ground asserts that the Tribunal made its decision without solid proof. The applicant did not elaborate on this ground in his submissions to the Court, despite being given an opportunity to do so.

31. The Tribunal was not required to prove or disprove the applicant’s claims for protection. Pursuant to s 5AAA of the Migration Act, it was the responsibility of the applicant, as a non-citizen claiming to be a person in respect of whom Australia has protection obligations, to specify all particulars of his claim to be owed protection and to provide sufficient evidence to establish the claim.

32. I accept the Minister’s submissions, based on well-established principles, that:

    (a)the Tribunal was not required to uncritically accept the applicant’s claims: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451;

    (b)the weight to be given to the claims and evidence was a matter for the Tribunal as part of its fact-finding function: Wu Shan Liang at 281-282;

    (c)it was open to the Tribunal to reject the applicant’s evidence based on surrounding circumstances, without having positive evidence that directly disproved the applicant’s claims: WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [17].

1. I further accept the Minister’s submissions that the Tribunal’s findings, including its adverse credibility findings, were open to it on the evidence before it.

2. Ground 2 does not establish jurisdictional error.

   Ground 3

3. I accept the Minister’s submission that the applicant’s third ground might be interpreted as an assertion that the Tribunal ought to have checked the applicant’s story. In some ways, the ground overlaps with ground 2 and the same principles referred to in the context of considering that ground apply to the resolution of this ground. It was a matter for the applicant, and not the Tribunal, to advance whatever evidence he wished to advance in support of his claims for protection: Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [187]; see also s 5AAA of the Migration Act, referred to above.

4. The Tribunal does not have a duty to inquire, although in some circumstances, a failure to make an obvious inquiry about a critical fact, the existence of which may be easily ascertained, may give rise to jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39 at [25]. The applicant has not identified any obvious inquiry about a critical fact that he believes the Tribunal should have made, and none is evident from the Tribunal’s reasons.

5. Ground 3 does not establish jurisdictional error.

   Other matters raised in the applicant’s oral submissions

6. The other matters raised in the applicant’s oral submissions fall into two categories:

   (a)a new claim that he fears harm as a person who likes people of the same sex; and

   (b)matters which are unrelated to any claims for protection but which go to why he wishes to be granted a visa.

7. The Tribunal is not required to consider claims that are not expressly raised by an applicant or which do not clearly emerge from the materials before it based on established facts: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [60]. The applicant’s claim based on his sexuality was not raised before the Tribunal and therefore the Tribunal was not required to consider it. There is no jurisdictional error in the Tribunal not considering whether the applicant would face harm on the basis of his sexuality.

8. As I explained to the applicant at the hearing, the Court cannot consider for itself whether the applicant meets the criteria for a protection visa and the Court cannot grant the applicant a protection visa. The Court has no power to engage in merits review of the Tribunal decision and cannot consider whether he would face a real chance of serious harm or a real risk of significant harm on the basis of his sexuality.

9. The applicant’s desire to assist his family, his assertion that he pays his taxes and his concerns about his financial situation are not matters that assert or establish any jurisdictional error in the Tribunal decision.

10. The matters raised in the applicant’s oral submissions to the Court do not establish jurisdictional error in the Tribunal decision.

    CONCLUSION

11. In circumstances where the applicant has not established that the Tribunal decision is affected by jurisdictional error, the application for judicial review must be dismissed.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

Associate:

Dated:       17 May 2024