BCK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 291
•25 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BCK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 291
File number(s): MLG 518 of 2017 Judgment of: JUDGE FORBES Date of judgment: 25 November 2021 Catchwords: MIGRATION – Protection Visa – claims that return
to home country will expose applicant to “loan shark” – country information conflicts with applicant claims – inconsistent evidence from applicant – no risk of significant harm as alleged – no jurisdictional error – application for review dismissedLegislation: Migration Act 1958 (Cth) ss 65, 36 Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 27 October 2021 Place: Melbourne The Applicant: In Person Solicitor for the First Respondent: Mr Creedon Solicitors for the Respondents: The Australian Government Solicitor ORDERS
MLG 518 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BCK17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
25 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The application for judicial review filed 15 March 2017 be dismissed.
3.The Applicant pay the First Respondent’s costs fixed at $6,000.
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
JUDGE FORBES
INTRODUCTION
The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal
(“the Tribunal”) dated 17 February 2017, which affirmed a decision of a delegate of the Minister (“the delegate”) not to grant the Applicant a Protection (Class XA) (Subclass 866) Visa (“the visa”).
Having heard and considered oral submissions from the Applicant and written and oral submissions from the Minister, I have determined that the Tribunal’s decision is not affected by jurisdictional error.
For the following reasons I have decided that the Application should be dismissed and that the Applicant should pay the Minister’s costs.
BACKGROUND
The Applicant is a citizen of Malaysia. He arrived in Australia on 18 November 2015
on a Temporary Visitor visa.
On 25 January 2016 the Applicant applied for a protection Visa under s 65 of the Migration Act 1958 (“the Act”). On 24 February 2016 the delegate refused to grant the protection Visa on the basis that the Minister did not accept the Applicant faced a real chance of serious harm or real risk of significant harm arising from his fear of a loan shark and concerns that authorities would not be effective in combating crimes of this nature.
On 21 March 2016 the Applicant applied to the Tribunal for review of the delegate’s decision. In support of his application the Applicant submitted photographs of various documents and photographs purporting to evidence his wedding.
On 4 January 2017 the Tribunal invited the Applicant to appear before it at a hearing scheduled for 1 February 2017 to give evidence and present arguments. The Applicant appeared at the hearing before the Tribunal on the scheduled date.
THE TRIBUNAL DECISION
In its decision dated 17 February 2017 the Tribunal affirmed the delegate’s decision not
to grant the Applicant a Protection visa.
At paragraphs [3]-[7] of the Decision, the Tribunal identified the criteria relevant to the granting of protection visas as set out in s 36 of the Act and Schedule 2 of the Migration Regulations 1994 (“the Regulations”), noting that an application for a visa must meet one
of the alternative criteria in s 36(2)(a), (aa), (b) or (c).
At paragraph [9] of the Decision the Tribunal posited that the issue in the case before it was whether Australia had protection obligations toward the Applicant.
At paragraph [10] of its decision, the Tribunal recorded the Applicant’s claims for a protection Visa as those claims were set out in his application:
(a)In early May 2015 he borrowed money from an illegal money lender after having approached a bank. His loan application with the bank was refused and so he borrowed MYR 20,000 from the money lender to pay his wedding expenses.
(b)
He was required to pay the full amount of the loan one month after the wedding in August 2015. Because of the economy and the Applicant's financial situation he was unable to pay the full amount and he arranged to pay the loan
by instalments. The loan shark accepted the payments by instalments
but required a high interest rate that worsened the situation for the Applicant.
(c)
When he was unable to pay, the loan shark disturbed the Applicant at work
and then they disturbed his wife. That is why he came to Australia.
(d)If he returns to Malaysia his family and his wife will be in a dangerous situation.
(e)Because he had taken out a loan through an illegal money lender the authorities cannot help him. The money lender has told him the authorities cannot interfere in this case.
(f)The Applicant moved to his parents’ house with his wife but the money lender can find him and disturb his whole family.
(g)The authorities cannot protect him.
(h)The money lender will be able to find him wherever he moves and make
his situation worse.At paragraphs [13]-[18] the Tribunal set out the manner in which it would assess
the Applicant’s evidence and the extent to which the credibility of the Applicant’s account would weigh in the overall assessment of the evidence and findings of fact.
At paragraphs [19]-[30] of its decision the Tribunal summarised the evidence and claims advanced by the Applicant at the Tribunal hearing. The Tribunal recorded the Applicant’s claims that:
(a)
he had borrowed MYR 20,000 from a money lender in May 2015 to pay
for wedding expenses [20];
(b)he had repaid some of the loan, but still owed the money lender around MYR 6,000 or about $2,000 AUD [20];
(c)
he had come to Australia to earn a good living to help his family, as well as
to pay off the loan [21];
(d)he feared returning to Malaysia because he has failed to repay the entire loan and he faces a difficult economic and political situation in Malaysia in which he sees no future [22];
(e)he had been approached by two men who reminded him to repay the loan. Similarly, his wife was approached by two men who reminded her that money was due [23]-[24];
(f)
he had not made a complaint to the police about the money lender because
he believes the police are not effective in dealing with loan sharks and are open to bribery [26];
(g)he would be beaten if he is unable to pay the loan [28];
(h)he confirmed that the money lender was a licenced money lender but stated that all money lenders behave the same [29]; and
(i)
he believes himself to be a refugee as defined by the Migration Act because
if he returns to Malaysia he believes he will be persecuted by the money lender [30].
At paragraphs [31]-[35] the Tribunal summarised the country information which was put to the Applicant during the hearing.
Having regard to the country information relating to law enforcement and the legal system
in Malaysia, the Tribunal accepted that while there were issues with police corruption
in Malaysia, it noted that steps have been taken to resolve this issue and that culture within the police is improving. Based on the information, the Tribunal did not accept that the Applicant would not be provided with police assistance if he sought that assistance [36].
At paragraph [37] the Tribunal noted that in the Applicant’s original protection visa application he claimed to have borrowed money from an illegal money lender, yet the Applicant’s evidence at the Tribunal hearing was that he had taken the loan from a licensed money lender, not an illegal operator.
The Tribunal noted that the Applicant had not breached any law by taking out a loan from
a licensed money lender and that his situation differed to those reported to the Malaysian media involving loan sharks. In particular the Tribunal noted that the Applicant had no actual knowledge that the police would refuse to assist or protect him [37].
The Tribunal also found that the judicial system in Malaysia would properly consider any evidence if any matter involving the Applicant was to proceed to a hearing [38].
Taking into account the country information the Tribunal found that effective protection was available to the Applicant in Malaysia against persecution and threats of harm by the money lender or his associates. That protection comprised an appropriate criminal law, a reasonably effective police force and an impartial judicial system. The Tribunal also noted that the Applicant had not sought to avail himself of this protection after claiming that he had been threatened [39]- [41].
The Tribunal found that the Applicant did not face harm in Malaysia for reasons of his race, religion, nationality, political opinion or membership of a particular social group. The Tribunal determined that the Applicant did not have a well-founded fear of persecution if he returns
to Malaysia now or in the reasonably foreseeable future and accordingly did not satisfy the criterion set out in s 36(2)(a) of the Act. The Applicant, the Tribunal concluded, was not
a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act [42]- [43].The Tribunal also turned its mind to the alternative criterion in s 36(2)(aa), namely whether there are substantial grounds for believing 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 as defined in subsection 36(2A) of the Act.At paragraphs [46]–[49] the Tribunal considered the definition of “significant harm”, including the various forms of treatment, punishment and humiliation which could give rise
to a finding of there being a real risk that an applicant might suffer significant harm in a country. The Tribunal noted that there are certain circumstances in which there is taken not to be a real risk including where the applicant non-citizen “could obtain, from an authority of the country, protection such that there would not be a real risk that the noncitizen will suffer significant harm” (s 36(2B)(b)). Further, the Tribunal acknowledged that it was required to consider whether the protection available would remove the real risk of significant harm.
The Tribunal found that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Malaysia that there is a real risk that he will suffer significant harm from the money lender. The Tribunal so found based on its earlier finding that state protection was available to the Applicant. Accordingly, the Tribunal was not satisfied that the Applicant met the alternative provisions in s 36(2)(aa).
Application for judicial review
On 15 March 2017, the Applicant applied to this Court for judicial review of the Tribunal’s decision. The application for review contained seven grounds, as follows:
1.I was holder of a visitor visa and applied for protection visa and application was refused.
2.My visa was refused and then application was lodged for review.
3.DIBP and AAT has made an error in law while deciding on my matter.
4.AAT has clearly misinterpreted definition of refugee and believe that I do not meet the definition of genuine refugee.
5.I would like to appeal to FCC to decide whether DIBP and AAT has made a fair decision and whether my matter was dealt fairly.
6.
I would like to request to FCC to have fresh look at my matter and make new orders
to replace old orders and remit this decision back to DIBP and AAT for reconsideration.
7.
I have genuine fear and need protection from Australia as Australia has obligation
to protect refugees.
On 15 March 2017 the Applicant also filed an affidavit in support of his application for review. The affidavit annexed a copy of the Tribunal’s statement of decision and reasons and simply requested that the Court review the decision and set it aside.
On 13 September 2017 Registrar Allaway made orders to prepare the matter for final hearing including that the Applicant file and serve any amended application, court book materials and written submissions on before 20 April 2020. The Minister was directed to file and serve
a Court Book in electronic and hard copy format by 27 September 2017 and was afforded
an opportunity to file and serve written submissions.In accordance with the Registrars orders, the Minister filed a Court Book and written submissions. An affidavit of service dated 25 October 2021 filed by the Australian Government Solicitor confirmed that the Court Book had been served upon the Applicant
in both hard copy and electronic format and that a copy of the Minister’s written submissions had been sent to the Applicant by email. At the hearing before me on 27 October 2021
the Applicant confirmed that he had received those documents and that they were available
to him.By the time the matter came on for hearing, the Applicant had not filed any amended application, Court Book materials, affidavits or written submissions.
Submissions at hearing
At the hearing before me the Applicant was afforded the assistance of a Malay interpreter. The interpreter confirmed that he understood the Applicant’s language and the Applicant confirmed that he was happy for the interpreter to assist him.
The procedure for the hearing before me was carefully explained to the Applicant and he confirmed through his interpreter that he understood the procedure and had no questions
to raise about it.
When asked to address the Court about the basis of his application for judicial review,
the Applicant said that he did not want to go back to Malaysia. He said “I really want to stay here and earn money”. He said that with the COVID-19 situation it would be very difficult
to get a job back in his country.
The Applicant said that he wanted to stay and that the Tribunal made a mistake. He said that if he goes back to Malaysia now it would not be safe for him. He said he would like to stay
in Australia and find some money so that he could pay out the debt he owes.When asked to elaborate on his ground that the Tribunal had “misinterpreted the definition
of refugee” (Ground 4), the Applicant simply repeated that he would not feel safe if he went back to his country. He added that here he has a job and can pay back his debt.When asked to elaborate on his ground that the Tribunal had made an “error in law while deciding his matter” (Ground 3), he again repeated that he would like to stay in Australia.
He said he and his wife want to stay and that he would like to work and earn money.The Minister submitted that the application for judicial review should be dismissed with costs and he sought to rely upon his written submissions dated 13 October 2021. The Minister submitted that the Tribunal had assessed the Applicant’s claim against the relevant definitions and had afforded the Applicant procedural fairness in dealing with his application. The Minister submitted that the Tribunal had not deviated from the requirements for proper assessment of the application and that the Tribunal’s decision is not attended by jurisdictional error.
In his reply submissions, the Applicant repeated that if he was to go back now it would not be safe for him. He contended that the minimum salary in Malaysia equates to only $400 per month and that that would not be enough for him. He said that he has to take care of his family and pay his debt and the only way he can do that is by working here. He said that he had recently got a stable job and that was very helpful to him. He said that he would like to stay and have a better life.
Consideration
I have read the Minister’s written submission and carefully listened to the parties’ oral submissions.
In my opinion the application for judicial review must be dismissed for the reasons articulated at [18]–[27] of the Minister’s written submission, elements of which I reproduce below.
A court reviewing a decision must beware of turning a review of the reasons of the decision maker upon proper principles into a reconsideration of the merits of the decision[1].
[1] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
It is well-established that judicial review is limited to reviewing the legality of administrative action. Judicial review does not ordinarily enter upon a consideration of the factual merits
of the individual decision. The grounds of judicial review ought not be used as a basis for
a complete re-evaluation of the findings of fact, a reconsideration of the merits of the caseor a re-litigation of the arguments that have been ventilated, and that failed, before the person designated as the repository of the decision-making power[2].[2] Re Minister for Immigration and Multicultural affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [114] per Kirby J and the cases cited therein
The grounds of review advanced by the Applicant do not disclose any jurisdictional error.
It is plain that the Applicant urges me to enter into an impermissible review of the merit of the Tribunal’s decision.Grounds 1 and 2
I agree with the Minister’s submission that Grounds 1 and 2 do no more than recite the history of the visa application and do not allege any error on the part of the Tribunal.
Ground 3
Ground 3 seeks to impugn the decisions of both the delegate and the Tribunal on the basis that they are infected by “an error in law”, although that error has not been articulated.
The Minister is correct to point out that the Court’s jurisdiction is limited to review
the Tribunal’s decision[3]. The Applicant’s attack on the delegate’s decision must fail.
[3] Migration Act 1958 (Cth) ss 476(2)(a) and (4)(a)
As to the Tribunal’s decision, the Applicant has not identified any “error of law”. When
I asked him to address this ground at the hearing, he simply responded by saying that he would like to stay in Australia and would like to work and earn money. That is not jurisdictional error.
Ground 4
The Applicant contends that the Tribunal misinterpreted the definition of refugee and failed
to find that he met the definition of genuine refugee.
When I asked the Applicant to address it, he submitted that he did not feel safe if he goes back to his country. Otherwise the Applicant was not able to elaborate or describe the nature of the Tribunal’s failure.
I accept the Minister’s submission that the Tribunal clearly had regard to the definition
of refugee and interpreted it correctly. The Minister points out that the Tribunal set out the definition of refugee at [5] of its decision as it is found in s 5H of the Act. At paragraph [6]
of its decision the Tribunal also correctly set out when a person will have a “well-founded fear of persecution” as per s 5 J of the Act. At paragraphs [39]-[43], the Tribunal found that it was satisfied that effective protection measures were available to the Applicant and therefore
by reason of s 5J (2) of the Act the Applicant cannot have a well-founded fear of persecution.
Again I find that there was no jurisdictional error. The Tribunal properly engaged with the Applicant’s claims of persecution and measured those claims against the relevant statutory criteria. Its finding that the Applicant’s fear of persecution was not well founded was open
to it and it is not the task of this court to revisit the Tribunals finding.Ground 5
By this ground the Applicant seeks to impugn the decisions of both the delegate and the Tribunal on the basis that those decisions were unfair and that the matter was not dealt with fairly. The Applicant did not articulate the nature of the unfairness in either his application
for review or in his oral submissions to the Court.
It is not open to the Court to review the decision of the delegate. To the extent that the Applicant seeks to impugn the delegate’s decision, it is beyond the Court’s jurisdiction as it was
a “primary decision” (as defined in s 476(2)(a) of the Act).
The Minister submits that the Tribunal complied with the exhaustive statement of the natural justice hearing rule set out in s 422B of the Act. The Tribunal invited the Applicant to attend the hearing to give evidence and present arguments in accordance with s 425 of the Act
and the Applicant availed himself of that opportunity to give evidence and present
his arguments.
Nothing in the Applicant’s application or in his submissions to the Court illuminate this ground of review. The Applicant has not demonstrated that he was denied procedural fairness or that the decision was otherwise unfair, such as to give rise to jurisdictional error.
Grounds 6 and 7
By Ground 6 the Applicant requests the Court “to have a fresh look at my matter and make new orders to replace old orders and remit this decision back to DIBP and AAT
for reconsideration”.
Ground 7 states that the Applicant has a genuine fear and need for protection from Australia
as Australia has obligations to protect refugees.The Minister submits that Grounds 6 and 7 only quarrel with the outcome of the Tribunal’s decision and request the Court to undertake an impermissible merits review. I accept that submission.
CONCLUSION
Neither the application for judicial review nor the Applicant’s submissions reveal
any jurisdictional error in the Tribunal’s decision.
Accordingly, the application for judicial review filed on 15 March 2017 will be dismissed.
The Applicant should pay the Minister’s costs of the application which I will fix at $6,000.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 25 November 2021
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