BJT18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 468
•23 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BJT18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 468
File number(s): MLG 715 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 23 May 2024 Catchwords: MIGRATION – application for judicial review – Protection (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of the first respondent that applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth)– where applicant confirmed at hearing that he did not rely on the ground articulated in his application – where applicant’s submissions both orally at the hearing and in material provided to the Court invite the Court to embark on impermissible merits review. Legislation: Migration Act 1958 (Cth) ss 36(2), 36(2)(a), 36(2)(aa), 474, 476. Cases cited: Craig v South Australia (1995) 184 CLR 163
Ministerfor Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 8 May 2024 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Mr McDonald of Clayton Utz Second Respondent: Submitting appearance save as to costs ORDERS
MLG 715 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BJT18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
23 MAY 2024
THE COURT ORDERS THAT:
1.The Application filed 21 March 2018 be dismissed.
2.The Applicant pay the First Respondent’s cost in the amount of $8,371.30.
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 J YOUNG:
INTRODUCTION
Before the Court is an Application filed on 21 March 2018, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 1 March 2018. By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to refuse to grant the applicant a Protection (subclass 866) visa (Visa).
CONTEXT
The applicant is a citizen of Malaysia.
On 19 September 2016 the applicant arrived in Australia on a UD-601 Electronic Travel Authority visa.
On 15 December 2016 the applicant applied for the Visa. The applicant’s claims were set out in his Visa application. Relevantly, the applicant claimed that:
(1)he owes money to a private company in the amount of RM85,000 and was unable to repay the debt due to financial difficulties;
(2)if he returns to Malaysia the “private company people” will look for him, ask for repayment of the debt and threaten to kill him. His family would ask him to pay the debt of RM15,000. He will embarrass his parents if they find out about his debt issues;
(3)the “private company guys” disturbed his business, threw a chair and put up a notice;
(4)they put red paint on the front door of his house;
(5)they warned him not to go to the police or tell anyone about the debt otherwise they would kill his relatives;
(6)he decided to move and look for a job, but he could not find work. He was shocked when they located him, chased him inside a mall and demanded repayment of the loan.
On 21 March 2017 the Delegate refused to grant the applicant the Visa. The Delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations under s 36(2) of the Migration Act 1958 (Cth) (Act).
On 4 April 2017 the applicant applied to the Tribunal for review of the Delegate’s decision.
On 6 April 2017, the Tribunal emailed the applicant confirmation of receipt of his application. The applicant was advised if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.
On 17 January 2018, the Tribunal emailed the applicant inviting the applicant to attend a hearing on 21 February 2018.
On 22 February 2018 the Tribunal emailed the applicant advising him that the hearing before the Tribunal had been postponed. The Tribunal invited the applicant to attend a rescheduled hearing on 1 March 2018 at 10.00am. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On 1 March 2018 the applicant appeared before the Tribunal and gave evidence with the assistance of an interpreter in the Malay and English languages.
On 1 March 2018 the Tribunal affirmed the decision of the Delegate not to grant the applicant the Visa. On the same day, the Tribunal sent a copy of its decision and reasons to the applicant’s email address.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 1 March 2018 (Tribunal Decision).
At paragraph [12] of the Tribunal Decision, the Tribunal summarised the applicant’s claim contained in his Visa application and stated the following:
…In his protection visa application form the applicant claims to fear serious harm in Malaysia from people he borrowed money from and was unable to repay. However at hearing he said he does not owe money to anyone in Malaysia (or anywhere), that he came to Australia with his own money, and works in Australia. He said someone else wrote his application: he paid them money and provided his personal details but nothing else and was not given a copy of the application form. On the basis of the applicant’s oral evidence at hearing the Tribunal finds that he did not borrow money from anyone in Malaysia in the past, did not receive threats from money lenders when he was unable to pay, and does not face a well-founded fear of persecution from any money lenders, banks, or others on return to Malaysia on this basis.
At paragraph [13] of the Tribunal Decision, the Tribunal summarised the oral claim raised by the applicant to have left Malaysia because his brother-in-law had threatened him because the applicant had told his sister that her husband was having an affair. At paragraph [14], the Tribunal expressed “significant doubts” about the applicant’s oral claim to fear harm from his brother-in-law but was ultimately willing to accept that he may have threatened the applicant with violence at the time when he discovered his wife had found out about his affair via the applicant. However, the Tribunal was satisfied the threats from his brother-in-law were “idle” and made in the context of the applicant’s brother-in-law being concerned about his marriage at the time.
Accordingly, the Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm or a real risk that he would suffer significant harm on return to Malaysia and found he did not meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Act.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal Decision on 21 March 2018.
The Application contains the following grounds for judicial review (without amendment):
1.The Tribunal did not make its decision on 1 March 2018 according in law in that.
1.1 The Tribunal was made decision without looking at the evidence of the applicant.
The applicant also filed an affidavit on 21 March 2018 which annexed the cover page of the Tribunal Decision.
On 6 May 2024 the applicant sought to file two documents; one in Malay and the other a purported translation of the first (although not certified) (Document). The Minister did not object to the Court receiving the Document and I have had regard to it.
The Minister filed a Response on 17 April 2018. The Response contained the ground that the Tribunal Decision is not affected by jurisdictional error.
The Minister also filed written submissions on 22 April 2024.
The hearing
The hearing took place on 8 May 2024.
The applicant is self-represented and was assisted by an interpreter in the Malay and English languages at the hearing.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
At the hearing the applicant said that he did not prepare the Application and he did not assert that the Tribunal erred by failing to take into consideration his evidence. He confirmed that he did not rely on the ground articulated in the Application.
The Court invited the applicant to address it as to any error he considered the Tribunal had made, in response to which the applicant said that it was not safe for him to return to Malaysia as his brother-in-law had threatened to kill him because he informed his sister of his brother-in-law’s infidelity. He said that his brother-in-law said that he was responsible for his sister’s death and that this was believed by his family.
The applicant also relied upon the Document. The Document reiterates the above assertions and details events which the applicant says occurred in 2019 after the Tribunal Decision. Those matter were therefore not before the Tribunal. The Document does not assert any jurisdictional error on behalf of the Tribunal.
As the Court attempted to explain to the applicant, the Court cannot remake the Tribunal’s decision, undertake a general review of the Tribunal’s decision or grant him a visa. The applicant’s submissions both orally at the hearing and in the Document invite the Court to embark on impermissible merits review: Ministerfor Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ.
For completeness, I am satisfied that the Tribunal considered the applicant’s evidence and correctly applied the provisions of s 36 of the Act.
The Tribunal Decision demonstrates that the Tribunal considered the applicant’s written and oral evidence and there is nothing to suggest that the Tribunal overlooked any of the applicant’s claims or evidence. In particular, as set out above, at paragraphs [12]–[13] of its decision, the Tribunal considered the applicant’s written claim to fear harm from money lenders and considered his oral evidence and claim raised before the Tribunal to fear harm from his brother-in-law. At paragraph [14] the Tribunal sets out its consideration of those claims. As to the applicant’s claim to fear harm from money lenders, the applicant conceded at the hearing that he did not owe money to anyone in Malaysia and that he had paid someone else to write his Visa application. As to the applicant’s claim to fear harm from his brother-in-law, the Tribunal had “significant doubts” as to this claim but found that on the applicant’s own evidence his brother-in-law only threatened him once (in August 2016), he did not actually harm him, and has made no efforts to contact him and threaten him whilst he has been in Australia. Accordingly, the Tribunal found any real chance of serious harm from the brother-in-law to be remote and therefore found that a fear of persecution on this basis was not well founded. On the evidence before the Tribunal such a finding was open to it.
It follows that no jurisdictional error on behalf of the Tribunal is disclosed.
CONCLUSION
For the above reasons, the Application must therefore be dismissed.
The Minister seeks the applicant pay its costs in the fixed amount of $8,371.30. I note that this is the scale amount and shall order accordingly.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 23 May 2024
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