AZY18 v Minister for Home Affairs

[2018] FCCA 1637

FEDERAL CIRCUIT COURT OF AUSTRALIA

AZY18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 1637

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a protection visa – whether the Tribunal’s decision is affected by an error of law – whether the Tribunal’s decision was made without evidence – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: AZY18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 553 of 2018

Judgment of: Judge Street

Hearing date: 21 June 2018

Date of Last Submission: 21 June 2018

Delivered at: Sydney

Delivered on: 21 June 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 553 of 2018

AZY18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 February 2018 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Malaysia and his claims were assessed against that country. The applicant arrived in Australia on 11 February 2017 on a UD-601 Electronic Travel Authority visa. It was not until 27 April 2017 that the applicant applied for a protection visa.

3. The applicant claimed to fear harm by reason of being indebted to a loan shark in Malaysia who kidnapped, mistreated and threatened the applicant when he fell behind in repayments. The applicant alleged that person continues to threaten the applicant and his family and the applicant fears that they will resume their targeting of him if he returns to Malaysia before repaying the debt in full, which he had hoped to do by January 2019.

4. On 9 August 2017, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

The Tribunal

1. On 9 August 2017, the applicant applied to the Tribunal for a review. By letter dated 24 November 2017, the applicant was invited to attend a hearing on 17 January 2018. The applicant appeared on that date to give evidence and present arguments.

2. The Tribunal found the applicant’s evidence to be vague, confused and lacking in content. The Tribunal found that the applicant’s problematic evidence cast doubt over the circumstances that led the applicant to leave Malaysia for Australia and, more generally, in relation to his needs for protection. The Tribunal found the applicant’s account to be lacking in detail and context, which the Tribunal found cast doubt as to whether he was subject to any targeting at all.

3. The Tribunal did not accept the applicant borrowed money from loan sharks. The Tribunal did not accept the applicant failed to make timely repayments. The Tribunal did not accept that loan sharks pursued him in Selangor or other places. The Tribunal did not accept that the applicant was detained, physically mistreated and threatened, or that any loan sharks continue to pursue him. The Tribunal found the applicant does not face a real chance of a loan shark, his agent or any other criminal targeting him and inflicting serious physical, psychological or other harm on the applicant. The Tribunal did not accept that a loan shark will harm the applicant in any other way, for instance by inflicting harm on other family members to cause the applicant psychological harm.

4. The Tribunal was not satisfied the applicant’s employment or financial prospects on return to Malaysia in the reasonably foreseeable future involve any serious harm. The Tribunal was not satisfied that in the applicant’s circumstances there is a real chance of the applicant suffering serious harm amounting to persecution. Having considered all the applicant’s claims, the Tribunal was not satisfied the applicant has a well-founded fear of persecution for one or more of the reasons enumerated under s 5J(1) of the Act, now or in the reasonably foreseeable future if returned to Malaysia.

5. The Tribunal was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Malaysia from Australia, there is a real risk the applicant will suffer significant harm. The Tribunal found the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced were on 2 March 2018 and on 26 March 2018, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court. The applicant put no submissions from the bar table when invited to do so.

The grounds

1. The grounds in the application are as follows:

   1. The decision is effected by an error of law.

   2. The decision was made without solid proof.

   3. It is requested to sent my application to Administrative Appeals Tribunal for consideration.

Ground 1

1. In relation to ground 1, the bare assertion of alleged error of law is not capable of making out a jurisdictional error. On the face of the Tribunal’s reasons, the Tribunal made adverse findings that were open to the Tribunal for the reasons given by the Tribunal on the evidence before the Tribunal. Those adverse findings cannot be said to be irrational, illogical or unreasonable.

2. In making the adverse credibility findings, the Tribunal took into account that the applicant’s evidence as to the exact terms and duration of the loan, was less than certain. The Tribunal found much of the applicant’s claim in relation to the loan sharks to be lacking in detail and context and found this cast doubt on whether he was subject to any targeting at all. The Tribunal found the applicant provided little insight as to why the gang kidnapped and detained him for 10 days only to change their minds and release him to allow him to earn money to repay the loan.

3. The Tribunal also had concerns about the applicant’s evidence of fleeing to another part of Malaysia and found the applicant gave confused evidence about what, if anything, happened during his two or three day stay there. The Tribunal found the applicant’s ability to keep his job and return to work in Selangor, which is where the gang evidently knew to find him, rather than explore other options in Malaysia, added to the Tribunal’s doubts. The Tribunal also took into account country information in relation to State protection and relocation.

4. The Tribunal explored with the applicant the medical evidence relating to his claimed abduction and the Tribunal found the applicant’s confused evidence about what occurred in Pahang and his eventual return to Selangor strongly suggested that he was drawing from some short-term visit to Pahang, rather than attempting flight from harm.

5. The Tribunal found the applicant’s details of his personal experiences gave raise to multiple concerns as to whether he was speaking from personal experience regarding his protection claims. Those adverse credibility findings by the Tribunal were logical and rational on the face of the material before the Court. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. As ground 1 is not supported by any particulars, ground 1 cannot make out any jurisdictional error. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the generalised assertion that the Tribunal was required to have solid proof does not reflect any obligation imposed upon the Tribunal by law. The Tribunal was not required to make the applicant’s case for him. The Tribunal was not required to uncritically accept the applicant’s claims and evidence. Further, the Tribunal did not need rebutting evidence before holding that the applicant’s claims were not made out as this involved a credibility assessment of the applicant. It was proper for the Tribunal to assess the applicant’s credit.

2. The Tribunal relied on identified deficiencies in the applicant’s own evidence which cannot be said to be illogical, insignificant or unreasonable in making adverse credibility findings. The Tribunal’s adverse findings were the subject of logical reasons for not accepting the applicant’s claims as summarised above. Accordingly, ground 2 fails to make out any jurisdictional error.

Ground 3

1. Ground 3 is not a proper ground for review and simply requests reconsideration of the Tribunal’s decision. This Court does not have power to review the Tribunal’s decision on its merits. This Court’s powers are confined to consider whether the Tribunal complied with its statutory obligations in the conduct of the review and its decision and whether the Tribunal complied with the requirements of procedural fairness in the conduct of the review and its decision. No jurisdictional error is made out by ground 3.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 7 August 2018