BCR17 v Minister for Immigration

[2019] FCCA 24

FEDERAL CIRCUIT COURT OF AUSTRALIA

BCR17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 24

Catchwords:
MIGRATION – Protection visa – application for judicial review of Tribunal decision – show cause hearing – applicant remained unlawfully in Australia between December 2011 to March 2015 – applicant claimed to fear harm from ex-partner – Tribunal considered individual circumstances and country information – absence of proper particularisation of grounds of review – no arguable basis for judicial review demonstrated – application dismissed.  

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.5H, 5J, 36, 65, 474, 476

Cases cited:

Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Morad v El-Ashey [2017] FCA 1136
MZAJQ v Minister for Immigration [2015] FCCA 593
MZABP v Minister for Immigration and Border Protection[2016] FCAFC 110
Nichol v Discovery Africa Limited [2016] FCAFC 182
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Siddique v Minister for Immigration and Border Protection [2014] FCA 1352
Spencer v The Commonwealth (2010) 241 CLR 118
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZSZW v Minister for Immigration and Border Protection[2018] FCAFC 82 SZTTW v Minister for Immigration and Border Protection [2014] FCA 837
SZUTB v Minister for Immigration & Border Protection (2015) 298 FLR 6
Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051
Upaid Systems Ltd v Telstra Corporation Limited [2016] FCAFC 158

Applicant: BCR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 527 of 2017

Judgment of: Judge A Kelly

Hearing date: 17 May 2018

Date of Last Submission: 17 May 2018

Delivered at: Melbourne

Delivered on: 17 January 2019

REPRESENTATION

Counsel for the Applicant: Mr Bandara

Solicitors for the Applicant: PLS Lawyers

Counsel for the Respondents: Ms Koya

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application filed on 6 March 2017 be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the costs of the first respondent fixed at $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 527 of 2017

BCR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By amended application filed on 14 May 2018, the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 20 February 2017 affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection visa pursuant to s 65(1)(a) of the Migration Act 1958 (Cth) (Act).

2. I have concluded that the amended application should be dismissed.  In substance, I consider that the Tribunal was entitled to find on the available country information that the applicant’s claim to fear persecution was not well-founded.  Otherwise, the applicant’s claims that the Tribunal ‘failed to apply the correct standard of scrutiny’ and that it misapplied the law were unwarranted.

Background

1. The applicant, a female Malaysian national aged 57 years was born in Selangor, Malaysia and is bilingual in Chinese and English.  The applicant first arrived in Australia on 15 December 1999 as the holder of a Malaysian passport and class UD, subclass 976 (electronic travel authority) (ETA). 

2. On 25 December 1999, the applicant departed Australia, returning again on 9 September 2011 as the holder of a Malaysian passport and with a new ETA which expired on 9 December 2011.  The applicant has not departed Australia since the expiry of that ETA. 

3. The applicant remained in Australia unlawfully until 11 March 2015. On that date she lodged an application for a Protection (class XA) visa.  The applicant was granted a Subclass 030 (Bridging C) visa and was granted a further Bridging visa on 22 May 2015 in which condition 8101, being a work condition, was lifted. 

4. By her visa application, the applicant stated that she was now separated from her de facto husband; having so separated on 17 October 2010.   The applicant commenced her de facto relationship in January 1983.  In the period January 2007 to July 2011, the applicant had conducted her own business selling chicken rice at a hawker store. 

5. By her application, the applicant claimed that she had left Malaysia because her husband had hurt her, mentally disturbed her and threatened to burn her alive.  The applicant stated that her husband:

   . . .  [was] acting very emotional and always com[ing] to my stall, disturb[ing] me and humiliate[ing] me and go to my house, break in and beat me for no reason.  He threaten[ed] to burn me alive.

6. The applicant explained the fear she held if returned to Malaysia, being that her husband would find her, punish her and hurt her again, adding that her husband visited her home in Malaysia, asked her children of her whereabouts and had told her son that he would never give up his search for her.  She stated “Maybe I will get kill[ed] by him.”

7. The applicant added that although she had made a police report, her husband had only been given a warning not to disturb the applicant.  She stated that the police had not arrested her husband or done anything else to protect her. 

8. On 13 March 2015, the Department wrote to the applicant acknowledging her application, advising that it was in the process of assessing the application and extended an invitation to the applicant to arrange an interview to discuss her claims with the Department.  The applicant did not accept that invitation.

Delegate’s decision

1. On 31 August 2015, the Department made a decision to refuse the Protection visa application.  By its decisional record the delegate provided reasons for that decision.  The reasons were arranged in four parts:  (1) application summary; (2) findings preliminary to assessment of protection claims; (3) refugee criterion assessment, and; (4) complementary protection criterion assessment. 

2. Having outlined the applicant’s background and migration history, the delegate confirmed that the visa application complied with the validity requirements for a subclass 866 Protection visa under the Act and the Migration Regulations 1994 (Regulations).  The delegate identified the material which was before it for the purpose of the assessment of the visa application and accurately identified the claims.

3. The delegate noted that although the applicant had been extended an opportunity to attend an interview to discuss her claims, she had not responded to that invitation and, save for the provision of personal identifiers, no further information or documentation had been received from her following the lodgement of her application. 

4. In Part 2 of the decisional record, the delegate made a finding that the applicant was a Malaysian national born on 29 August 1961 and that for the purposes of the assessment, Malaysia was the applicant’s receiving country. The delegate further found that the applicant did not have a right to enter or reside in a country other than her country of citizenship and identified the protection obligations which may be owed by Australia pursuant to paras 36(2)(a) and 36(2)(aa) of the Act.

5. In Part 3 of the delegate’s decision, the delegate undertook an assessment of whether the applicant satisfied the refugee criterion prescribed by para 36(2)(a). After referring to s 5J(1)(b) of the Act, the delegate proceeded to assess whether there was a real chance that if returned to Malaysia, the applicant would be persecuted for one or more of the reasons mentioned in para 5J(1)(a). Before me the applicant’s solicitor drew attention to the country information which was set out in the delegate’s decision, emphasising that certain aspects of that country information indicated that the government control of domestic violence remained inadequate and that it failed to protect women in immediate danger. Mr Bandara, on behalf of the applicant, also drew attention to the lack of capacity within the police and judiciary of Malaysia in relation to domestic violence.

6. Contrastingly, Ms Koya on behalf of the Minister, drew attention to other aspects of the country information referred to in the delegate’s decision.  In particular, Ms Koya drew attention to the enactment of the Domestic Violence Act (Malaysia) and the amendment of that Act in 2012 so as to expand the definition of domestic violence to include matters such as mental, emotional and psychological abuse as well as physical violence.  By the amendments to that Act, the court was empowered to issue protective orders to prevent third parties from physically abusing, or communicating with, victims of violence and conferred powers allowing police to arrest perpetrators when a protective order had been violated.  The Human Rights report 2014 Malaysia, US Department of State, 25 June 2015, OG2B06FAF115, included the observation that activists had welcomed the amendment to the Domestic Violence Act and sought that it be amended further.

7. The delegate referred to a DFAT report dated 3 December 2014 which noted that domestic violence against women continued to be a serious problem in Malaysia and was considered, by credible local sources, to be significantly under-reported.  The DFAT report continued:

   Malaysian law prohibits domestic violence, including physical injury and mental, emotional and psychological abuse.  Victims can obtain protection which orders attract a prison sentence of up to one year or a fine of RM2000 (approximately AUD660) if breached.

8. The delegate observed that there were recognised problems in Malaysia with respect to the control of domestic violence but continued that:

   Country information details a number of initiatives which have been implemented to address identified inadequacies . . . DFAT reports that Malaysia has taken significant steps to reduce domestic violence.  Domestic violence conviction rates have significantly increased over the past decade and police have been increasingly responsive to reports . . . (emphasis added)

9. The delegate further noted that a number of government and private agencies also provided resources and support for abused women at centralised hospital-based care centres referred to as One-Stop Crisis Centres (OSCC) where victims were provided protection, safe accommodation, support, counselling and legal assistance from personnel including medical staff, counsellors, social workers, Legal Aid and police officers. 

10. The delegate concluded that: 

    The above country information suggests that there are a number of avenues victims of domestic violence can pursue and that domestic violence is discussed in the public sphere in Malaysia.

11. The delegate had regard to the principle that it was not required to accept uncritically any or all of the allegations made by an applicant, citing Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 572; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 293.

12. The delegate considered that the applicant’s claims were vague and limited in detail and had not been substantiated or corroborated in any way, observing that she had not provided any specific details about the domestic violence to which she had been subjected by her husband and that she had not declared her children as targets of violence or outlined her dealings with Malaysian authorities in reporting the violence allegedly purported by her husband.  The delegate noted that the applicant had not, despite invitation, attended an interview to discuss further her claims and provide additional information to the Department.  The delegate considered that her failure to do so cast doubt on the credibility and genuineness of her claims. 

13. The delegate also considered that the applicant would have sought protection at a date earlier than she did but had instead for the most part remained unlawfully in Australia without making any such claims or seeking protection in the period 2011 – 2015. 

14. In addition the delegate considered that country information undermined the claims that the applicant could not obtain police protection or protection from services such as OSCC.

15. Given the significant lack of detail and material to support her claims and on the information which was before the delegate, the delegate did not accept that applicant had experienced or was likely to experience harm in Malaysia and accordingly found that she did not have a well-founded fear of persecution. The delegate was not satisfied there was a real chance of the applicant facing persecution for any one of the reasons prescribed in para 5J(1)(a) of the Act. Accordingly, the delegate concluded that the applicant was not a refugee as defined by s 5H and that the criterion in para 36(2)(a) was not satisfied.

16. For like reasons, the delegate did not find the applicant’s claims to complementary protection to be credible and found that the applicant was not a person in respect of whom Australia owed complementary protection obligations pursuant to para 36(2)(aa) of the Act.

Tribunal Proceedings

1. On 8 September 2015, the applicant lodged an application with the then Refugee Review Tribunal for review of the delegate’s decision.

2. On 17 January 2017, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues arising in respect of the decision under review.  The applicant attended the hearing on 16 February 2017.  Arrangements were made for the applicant to be assisted by an interpreter. 

3. On 20 February 2017, the Tribunal made a decision to affirm the delegate’s decision to refuse the visa application.  The Tribunal provided a statement of its decision and reasons for that decision (Reasons). The Tribunal identified the subject application for review and the criteria for a Protection visa. I see nothing in the Tribunal’s statement of reasons to indicate any error in the statement of applicable principles: Reasons, [3]-[8].

4. In addition, the Tribunal recorded that in accordance with Ministerial Direction No 56, the Tribunal had taken into account policy guidelines prepared by the Department of Immigration as promulgated both with respect to refugee law guidelines and complementary protection guidelines together with relevant country information assessment which had been prepared by DFAT. 

5. The Tribunal provided an accurate summary of the applicant’s claims and history and a basis on which she had applied for a Protection visa.  

6. In assessing the applicant’s claims, the Tribunal recorded its concerns about the applicant’s credibility, but proceeded by accepting her claims to have suffered domestic violence at the hands of her ex-partner.  The Tribunal accepted the applicant’s oral evidence that she had never been legally married to her ex-partner, that the ex-partner had been physically abusive toward her on a regular basis and that she had complained to police who had issued a warning to her ex-partner. 

7. The Tribunal also accepted the applicant’s evidence that she separated from her ex-partner and had moved to her sister’s residence which was located some 45 minutes by car from her home.  The Tribunal accepted that a month after the applicant had moved to her sister’s residence, her ex-partner had come to the house and had acted violently towards her and, after being told that he had wanted her to go with him, the applicant had received death threats from her ex-partner, including that he would burn her alive. 

8. Contrastingly, the Tribunal noted that at the hearing the applicant had expressly disavowed that the ex-partner would always come to her chicken stall to disturb and humiliate her. 

9. The Tribunal recorded that the applicant gave evidence at the hearing that she had separated from her ex-partner in 2011.  The Tribunal drew to the applicant’s attention that this evidence was in conflict with the information contained in her visa application that she had separated from ex-partner on 17 October 2010.  In addition, the Tribunal put to the applicant that she had given evidence at the hearing that after she had left for Australia, her children reported that the ex-partner had inquired of them as to her whereabouts and that she had responded, “but after that, there were no more occasions”:  Reasons, [14].

10. When it was put to the applicant that a significant period had elapsed since the applicant’s relationship with her ex-partner, she responded that he knew that she was in Australia and that if she went back, “he might still do things to stalk and disturb” her as he was a hot tempered person.  The Tribunal reasoned at [14] that:

    The evidence indicates that a substantial period of time [has] elapsed between the incident when he came to her sister’s house and her departure to Australia and yet, the ex-partner, despite knowing where she was living and that it was only 45 minutes away by car, made no further attempt to target her or to make contact with her.

11. Taking all of those matters into account and including the long passage of time since the last incident which occurred at the sister’s home, the delegate considered it remote that the applicant’s ex-partner would now or in the reasonably foreseeable future seek to seriously harm or significantly harm the applicant if she were to return to Malaysia.

12. Having considered the applicant’s individual circumstances and country information, the Tribunal found that there was not a real chance, whether now or in the reasonably foreseeable future, that the applicant would be persecuted for a prescribed reason. The delegate found that the applicant’s fear of persecution was not well-founded and accordingly, that she was not a refugee within the meaning of s 5H.

13. The Tribunal concluded that the applicant was not owed protection obligations by Australia under paras 36(2)(a) or 36(2)(aa).  Upon those conclusions, the Tribunal affirmed the delegate’s decision.

Procedural history

1. On 16 March 2017, the applicant sought judicial review of the Tribunal’s decision.  The application was supported by an affidavit affirmed by the applicant which exhibited a copy of the decision record of the Tribunal and adduced little further evidence in support of the application for a judicial review. 

2. By a Response dated 20 April 2017, the Minister opposed the grant of relief contending that the grounds failed to properly particularise or articulate any substantive ground on which to advance a claim of jurisdictional error.  

3. On 13 September 2017, orders were made, by consent, setting the application down for a show cause hearing pursuant to r 44.12 of the Federal Circuit Court Rules 2001. In accordance with those directions, the Minister filed an outline of submissions in support of a submission that the proceeding should be dismissed pursuant to r 44.12(1)(a). At the point of filing those submissions, the Minister was only able to respond to the grounds of review as contained in the application.

4. However, on 14 May 2018, a matter of days before the matter was set down for the show cause hearing, the applicant’s lawyer filed an amended application which contained further grounds of review.

5. In addition, the applicant filed a written submission which was, in substance, repetitious of grounds 1 and 2 of the amended grounds of application.  The written submission sought that:

   The Application be allowed, and the matter be remitted to the Tribunal with a directive that the Application be heard according to the law.

6. At the hearing before me, the applicant’s solicitor made several submissions which confirmed that he appreciated the matter was listed for a show cause hearing.  Specifically, the applicant’s solicitor confirmed that, as the present application was a show cause hearing, it was necessary only for the applicant to demonstrate that she had an arguable case.

Consideration

1. Criteria for the grant of a Protection visa are contained in s 36.

2. Being a privative clause decision[1], the Tribunal’s decision is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[2]  Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Tribunal’s decision.[3] 

   [1] Section 474(2).

   [2]Sections 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

   [3]             Sub-s 476(2).

3. Rule 44.12(1) of the Federal Circuit Court Rules 2001 (Cth) confers power on the court at the hearing of an application to show cause, to grant relief by way of dismissal of the proceeding, or to adjourn the proceeding for a final hearing, or otherwise to make final orders in relation to the claims for relief.

4. The course which the court may adopt on a show cause hearing will depend upon whether or not it has been satisfied that the applicant has raised an arguable case for relief: r 44.12(1)(a)-(c). An order under r 44.12(1) is an interlocutory order: r 44.12(2). The power conferred by r 44.12 has been described as a form of summary dismissal: MZAJQ v Minister for Immigration;[4] SZUTB v Minister for Immigration & Border Protection.[5] More recently, however, it has been questioned, with respect correctly, whether the principles applicable to summary judgment ought be applied on a show cause application under r 44.12.

   [4] [2015] FCCA 593, [13] (Whelan J).

   [5] (2015) 298 FLR 6, [10] (Smith J).

5. It is convenient to identify the principles relating to summary judgment which are well settled: see Spencer v The Commonwealth.[6]  It is appropriate to consider those principles if only to emphasise that the caution which must be exercised when considering summary judgment is no less applicable upon the determination of a show cause hearing.

   [6] (2010) 241 CLR 118.

6. The power to grant summary judgment is expressed in permissive terms; the court may give judgment and may order that it be dismissed generally or in relation to any claim.  Critically, in the case of summary judgment, the power is not engaged unless the court is satisfied that the party has no reasonable prospect of successfully prosecuting the proceeding.  So too, the power to dismiss an application on a show cause hearing is engaged only where the applicant has not satisfied the court that an arguable case for relief has been raised.

7. In Upaid Systems Ltd v Telstra Corporation Limited,[7] Perram, Jagot and Beach JJ considered the principles applicable to summary judgment not to be in doubt and, after referring to the principles as enunciated by the plurality in Spencer, supra, stated a series of further propositions, including the following:

   a)first, a proceeding need not be hopeless or bound to fail for it to have no reasonable prospects of success;

   b)secondly, summary dismissal may be justified where, inter alia, there is unanswerable or unanswered evidence of a fact fatal to the pleaded case or any permissible modification;

   c)thirdly, the exercise of the power should be exercised with caution, particularly where complex questions of fact or law are involved;

   d)fourthly, the familiar intensifying epithets such as ‘clearly’, ‘manifestly’ ‘obviously’, ‘frivolous’, ‘untenable’, ‘groundless’ or ‘faulty’ should not be understood as providing a sufficient chart of the metes and bounds of the power to grant summary judgment;

   The propositions stated in Upaid Systems were endorsed by the Full Court in Nichol v Discovery Africa Limited.[8]

   [7] [2016] FCAFC 158, 122 IPR 190, [46]-[49].

   [8][2016] FCAFC 182 at [133]-[142] (Greenwood, McKerracher and Moshinsky JJ); see also Morad v El-Ashey [2017] FCA 1136, [15] (Kenny J).

8. In SZUTB, Smith J held[9] that the power conferred by r 44.12(1) had two components: (1) lack of satisfaction that the applicant had raised an arguable case; and (2) a residual discretion whether or not to dismiss the application. In Siddique v Minister for Immigration and Border Protection, Gilmour J explained, it would be “wrong for the court below to proceed on the basis that if it is not satisfied that the application has raised an arguable case for the relief claimed the application should necessarily be dismissed.”[10]  That is, the residual discretion remains to be considered.

   [9](2015) 298 FLR 6, [12]-[16] citing Siddique v Minister for Immigration and Border Protection [2014] FCA 1352, [19]-[21] (Gilmour J); SZTTW v Minister for Immigration and Border Protection [2014] FCA 837, [20] (Beach J).

   [10] [2014] FCA 1352, [19]-[21].

9. The doubts which have been expressed in relation to the direct application of the principles applied in relation to summary judgment upon a show cause application, recognise that the statutory foundation of the two applications is different.  In Takhi v Minister for Immigration, Citizenship and Multicultural Affairs,[11] Perry J observed that the approach to be taken on a show cause application differed from that taken on summary judgment inasmuch as: (1) the court was authorised to determine the application at a reasonably impressionistic level; (2) the applicant was confined on a show cause application to the grounds stated in the application;[12] (3) contrastingly, summary judgment involved a critical evaluation of the available materials to determine whether there was a real question of fact or law that ought go forward for trial; (4) the onus in the two applications was different, with the applicant under r 44.13 having to demonstrate an arguable case such as to warrant the matter going forward for final hearing. 

   [11] [2018] FCA 2051, [4], [17]-[18].

   [12]           Rule 44.13(1).

10. In reaching those conclusions Perry J considered it appropriate to rely upon the principles applied in an application for an extension of time.  As the authorities indicate, if an extension of time is to be granted the Court must be satisfied that it is in the interests of justice to do so: SZSZW v Minister for Immigration and Border Protection;[13] MZABP v Minister for Immigration and Border Protection.[14]

    [13][2018] FCAFC 82, [27] (Collier, Wigney and Gleeson JJ).

    [14][2016] FCAFC 110, [38] (Tracey, Perry and Charlesworth JJ).

11. In MZABP, the Full Court endorsed statements by Mortimer J that the approach to be taken to a preliminary evaluation of the merits of a substantive application involved recognition that the grounds had not been as fully considered, developed and argued as if on a final hearing and, accordingly, that it was not a function appropriate to the exercise of the broad discretion to grant an extension of time to undertake a fuller consideration of the merits of the substantive claim.  Mortimer J’s reasoning is instructive.  Her Honour stated:[15]

    . . .  it will seldom be in the interests of the administration of justice to grant leave where an appeal has little or no prospects of success, because of the resources expended by the parties and the Court, and the inevitable impact on other litigants who have abided by time limits and are waiting for their appeals to be heard, in circumstances where an unsuccessful outcome can be confidently predicted at the leave stage. There is, however, in that approach a level of certainty about the unsuccessful outcome which is not borne of an exhaustive preliminary examination of the grounds as if they had been fully considered, developed and argued.  Rather, the certainty or confidence a judge may have about an unsuccessful outcome is because the grounds on their face, and without the detailed argument and development which attends a full hearing, are plainly hopeless.... If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level (see . . . Jackamarra v Krakouer[16]) into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).

    The correct approach may be expressed by the use of language such as whether a ground is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success” . . .

    [15][2015] FCA 1391, [62]-[63]

    [16](1998) 195 CLR 516 at [7]-[9].

12. Two of the factors identified by Mortimer J were that it would not be in the interests of the administration of justice to grant an extension of time where the proposed appeal had little or no prospects of success and that the matter should be assessed at an impressionistic level.

13. I apply those principles in determining this show cause application.

14. The amended application advanced eight grounds of review.

15. I accept the Minister’s submissions that the grounds of the application contained merely broad complaints that the Tribunal failed properly to consider the applicant’s circumstances and evidence.  In the absence of proper particularisation, the grounds asserted by the applicant, whether in the original or amended application, cannot substantiate any jurisdictional error in the decision of the Tribunal. 

16. In my opinion, the reasons of the Tribunal, fairly read, demonstrate that it undertook a proper review of the applicant’s claim in assessing whether it could be satisfied that a proper basis had been made out for the grant of a visa under para 36(2)(a) or 36(2)(aa) of the Act.

17. I address in turn each of the grounds of review contained in the amended application.

Ground 1 – country information

1. Ground 1 reads:

   1. Administrative Appeal Tribunal fell into jurisdictional error by failing to address the following questions which it was required to address in light of its finding as to country information and treatment of victims of family violence without adequate support mechanisms for victims.

   (a) Whether the applicant had well founded fear of persecution by reason of lack of governmental protection from persecution.

   (b) Whether the applicant had well founded fear of persecution if she returns to Malaysia

2. On the evidence and material before it, the Tribunal found that the applicant did not have a well-founded fear of persecution and further found that, having regard to the available country information, there was not a real chance that the applicant would be persecuted for a prescribed reason: Reasons, [14]-[15].

3. In those circumstances, the Tribunal was not required to assess the level of protection that would be afforded to the applicant as it had found her fear of persecution was not well-founded.

4. In any event, the available country information was examined in detail. 

5. The applicant failed to take up the opportunity to attend an interview, discuss her claims or provide any further documents which might have had a bearing upon the issue now under challenge.  The Tribunal was entitled to take as its starting point the information which had been assessed in the delegate’s decision:  cf SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35]. It did so and in my opinion, did so with a proper attention to detail.

6. Ground 1 is rejected.

Ground 2 – standard of scrutiny

1. Ground 2 reads:

   2. The Administrative Appeal Tribunal fell into jurisdictional error by failing to apply correct standard of scrutiny to the applicant's claims in support of her contention that she had well-founded fear of persecution by reason of her partner’s threats and applying impermissibly strict standard of scrutiny to these claims and this contention.

2. The applicant contended that the Tribunal had applied an impermissibly strict standard of scrutiny to the applicant’s claims. 

3. On the material before the Tribunal, it was open to the Tribunal to conclude that the applicant did not have a well-founded fear of persecution by reason of her experience with her ex-partner.  As it was entitled to do, the Tribunal took into account the significant lapse of time between the last incident which had involved the applicant (2010) and the making of her application for a Protection visa (2015). 

4. The Tribunal also recognised that, while the ex-partner had asked the applicant’s children about her whereabouts on one occasion after she had come to Australia, there had been no further incident involving any attempt by the ex-partner to make inquiries of the applicant’s whereabouts.

5. The Tribunal also took into account the country information which indicated the improvements which had been taken by the Malaysian Government toward preventing domestic violence.  There is nothing in the Tribunal’s decision or the material that was before it or, for that matter, any submission on behalf of the applicant to support a conclusion that the Tribunal had applied an impermissibly strict standard of scrutiny to the applicant’s claim.

6. I agree in the submission that Ground 2 is properly seen as being an impermissible merits review by this Court of the Tribunal’s decision.

7. Ground 2 is rejected.

Grounds 3-8. – generalised contentions

1. Grounds 3 – 8 read:

   3. The Administrative Appeals Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it misapplied the facts, law, regulations, policy and guidelines in deciding that the Applicant's application.

   4. The Administrative Appeals Tribunal misconstrued or misapplied the applicable law, or otherwise failed to ask itself the right question(s);

   5. The Administrative Appeals Tribunal fell into jurisdictional error when it failed to act in a manner that was just and fair in all the circumstances of the case;

   6. The Administrative Appeals Tribunal fell into jurisdictional error as its decision was unreasonable in all the circumstances of the case;

   7. The Administrative Appeals Tribunal fell into jurisdictional error when it misapplied and/or misinterpreted Section 36 of the [Act] and Schedule 2 of the [Regulations]

   8. Such further and/or other and/or additional grounds as the Applicant may submit in due course upon receiving full and proper legal advice and opinion in the matter;

2. Grounds 3 – 8 do not contain any identifiable ground for judicial review.  There is nothing by way of particulars to indicate the basis upon which any of these proposed, amended, grounds are advanced.

3. Grounds 3 – 8 are rejected.

Conclusion

1. For the reasons set out above, I am not satisfied that the applicant has demonstrated an arguable basis for judicial review of the Tribunal’s decision.  Moreover, in the exercise of the residual discretion which is conferred in respect to the determination of a show cause application, I am not satisfied that any basis is shown why this application should be permitted to go forward.

2. The amended application should be dismissed.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Date: 17 January 2019