BSG21 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1205

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BSG21 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1205

File number(s):

SYG 1118 of 2021

Judgment of:

JUDGE SKAROS

Date of judgment:

14 November 2024

Catchwords:

MIGRATION – Application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) - protection visa – applicant unrepresented - whether the Tribunal misconstrued the definition of significant harm – whether the Tribunal failed to consider the applicant’s claims against the “Convention definition” – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 5AAA, 5J(1)(a), 36, 36(2A), 36(2)(a), 36(2)(aa), 65, 423A, 499

Cases cited:

Minister for Immigration and Border Protection v SZMTA; (2019) 264 CLR 421; [2019] HCA 3

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

MZYXS v Minister for Immigration and Citizenship [2013] FCA 614

Plaintiff S157/2002 v Commonwealth of Australia (2003) 264 CLR 421; [2003] HCA 2

SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774

SZSOV v Minister for Immigration & Anor [2013] FCCA 949

Division:

Division 2 General Federal Law

Number of paragraphs:

49

Date of hearing:

31 October 2024

Place:

Parramatta

Counsel for the Applicant:

The applicant appeared in person

Solicitor for the First Respondent:

Mr S Knuckey, Mills Oakley

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 1118 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BSG21

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE SKAROS
DATE OF ORDER:	14 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.

2.The application filed on 21 June 2021 for judicial review 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 SKAROS

INTRODUCTION

1. By application filed on 21 June 2021, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 24 May 2021. The Tribunal affirmed a decision of a delegate (the delegate) of the first respondent (the Minister) in refusing to grant the applicant a Protection (Class XA) (subclass 866) visa (the visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND

2. The applicant is a male citizen of Malaysia who arrived in Australia in April 2018 on an Electronic Travel Authority.

3. On 3 June 2018, the applicant lodged an application for the visa. On the application form, the applicant answered “no” to the question: “Does the applicant think they will be harmed or mistreated?”. The applicant’s claims in this application were in relation to economic hardship concerns in Malaysia.

4. On 31 August 2018, the delegate refused to grant the applicant a protection visa. The delegate was not satisfied that the applicant’s claimed fear of harm related to any of the reasons set out in s 5J(1)(a) of the Act. Accordingly, the delegate was not satisfied the applicant was a person in respect of whom Australia had protection obligations under sections 36(2)(a) or (aa) of the Act.

5. On 1 September 2018, the applicant sought review at the Tribunal of the delegate’s decision. He provided a copy of the delegate’s decision with the application for review.

6. On 17 March 2021, the applicant was invited to appear before the Tribunal on 1 April 2021 at a hearing to be held by telephone. The applicant attended the hearing and confirmed that everything in his application was correct. The applicant also made new claims in the hearing.

7. On 24 May 2021, the Tribunal affirmed the decision not to grant the applicant the visa.

   THE TRIBUNAL’S DECISION

8. The dispositive issue in the review was whether the applicant was a person in respect of whom Australia had protection obligations under s 36 of the Act.

9. The Tribunal identified the criteria for a protection visa, that the applicant must either satisfy the ‘refugee’ criterion or meet the ‘complementary protection’ grounds for protection. The relevant definition of ‘refugee’ and the complementary protection grounds under the Act were also set out.

10. The Tribunal identified that it must have regard to Ministerial Direction No. 84 made under s 499 of the Act, and that it must take into account the policy guidelines titled PAM3 Refugee and Humanitarian - Complementary Protection Guidelines, and PAM3 Refugee and Humanitarian - Refugee Law Guidelines and any relevant country information assessments. The Tribunal identified that it had regard to the Department of Foreign Affairs and Trade Country assessments.

11. The Tribunal assessed the applicant’s protection claim against Malaysia as the country of reference and receiving country respectively.

12. At [13] of the Tribunal’s decision, the Tribunal set out the applicant’s claims for protection that were provided to the Department (as per original):

    •He stopped working as a Senior Mechanic due to the economic decline in Malaysia. As a result, he was unable to financially support his family.

    •He came to Australia to find employment opportunities in order to improve his financial situation.

    •He did not experience harm in Malaysia.

    •If he returns to Malaysia it will be difficult for him to find employment and therefore will face the same financial problems.

13. At the Tribunal hearing, the applicant made a further claim that he feared harm in Malaysia from a money lender. The Tribunal was concerned as the applicant did not raise this claim before the primary decision maker. The Tribunal was not satisfied of the applicant’s explanation as to why he had not previously raised the claim regarding the money lender. At [21] of the Tribunal’s decision, the Tribunal considered that s 423A was applicable and drew an adverse inference regarding the credibility of that claim.

14. The Tribunal then considered whether the applicant satisfied the refugee criteria and whether he had a well-founded fear of persecution for one of the reasons set out in s 5J(1)(a) of the Act. The Tribunal found that the applicant had not made claims in relation to these matters. It noted that his original claims were that he came to Australia to find employment. The Tribunal placed no weight on the applicant’s new claim of having fear of a money lender, and drew an adverse inference as to the applicant’s credibility in that regard. The Tribunal also found that this new claim contradicted his original claim that he that he came to Australia to find employment and improve his financial situation.

15. The Tribunal considered the country information, the circumstances of his immediate family living in Malaysia, and his employment history as a mechanic and concluded that it was not satisfied that the applicant would face a real chance of harm upon return to Malaysia (now or in the reasonably foreseeable future) for any of the reasons set out in s 5J(1)(a). Accordingly, it found that the applicant did not satisfy s 36(2)(a) of the Act.

16. The Tribunal then considered whether the applicant met the complementary protection criteria. Again, the Tribunal gave no weight to the applicant’s claim that he would be killed by a money lender back home, as it was not raised before the primary decision maker. It also considered the applicant’s claim that if he was removed from Australia, he would not be able to support his family. The Tribunal found that complementary protection criteria cannot be satisfied on these grounds.

17. The Tribunal considered that the applicant did not provide sufficient evidence or specific particulars, as required by s 5AAA, to establish any genuine claims for protection.

18. For these reasons, the Tribunal concluded that the applicant did not satisfy the requirements in ss 36(2)(a) or (aa) and was therefore not a person in respect of whom Australia had protection obligations.

    APPLICATION TO THIS COURT

19. The application before this Court contains two grounds of judicial review, which have been further considered below.

20. The applicant also filed an affidavit, affirmed on 17 June 2021, which annexed the Tribunal’s decision and included submissions relevant to the grounds of judicial review. As the Tribunal’s decision record was included in the Court Book, it was not necessary to admit the affidavit into evidence. The content of the affidavit, however, was taken to be written submissions.

21. Orders made by a Registrar of this Court on 30 July 2024 provided for the applicant to file and serve any amended application, submissions, and supporting evidence by 13 August 2024 and the Minister to file any submissions and evidence by 20 August 2024.

22. On 20 August 2024, the Minister filed written submissions. Nothing was filed by the applicant.

23. The matter was heard on 31 October 2024 at the Parramatta Registry of the Court. The applicant appeared in person and was assisted by an interpreter. Mr Knuckey, a solicitor advocate, appeared on behalf of the Minister.

24. The Minister sought to rely on material in the Court Book. Accordingly, the Court Book, filed on 17 August 2021, was tendered into evidence and marked Exhibit CB.

25. At the commencement of the hearing, the Court ensured that the unrepresented applicant had a copy of relevant documents in evidence before the Court. It also explained to him how the hearing would proceed and the role and powers of the Court in judicial review proceedings.

26. Noting that no amended application or written submissions had been filed by the applicant, the applicant was invited to make oral submissions in support of the grounds of review set out in his originating application. The Minister also made oral submissions at the hearing which largely reflected the written submissions filed on 20 August 2024.  

    Consideration

27. The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002v Commonwealth of Australia (2003) 264 CLR 421.

28. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:

    The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.

29. To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2].

30. Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

    Grounds of review

31. The application for judicial review set out two grounds (without alteration):

    1.The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.

    The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon his returns to Malaysia

    2.The applicant satisfy the key elements of the Convention definition as detailed in the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

32. In the affidavit accompanying the originating application, the applicant submitted that the Tribunal’s decision was unjust and made without taking into account the ‘full gravity of [his] circumstances and the consequences of the claim’.

33. At the hearing, the applicant was invited to make submissions in respect of the grounds of review, each of which were read to him with the assistance of a Malaysian interpreter.

    Ground one

34. By ground one, the applicant alleges that the Tribunal had misconstrued the definition of significant harm as set out in s 36(2A) of the Act. The applicant did not provide any particulars as to how the Tribunal had so erred in its consideration of his protection claims. When invited to explain why he believed the Tribunal had misinterpreted that provision in the context of his claims, the applicant said he informed the Tribunal that he ‘would face a big problem if he returned home’. The applicant was unable to articulate the error made by the Tribunal and said ‘he did not know or understand’ what error had been made, however, he did say that there ‘was no response from the Tribunal’ regarding his evidence.

35. This complaint appears to be in relation to the Tribunal not accepting that he would face significant harm if he were returned to Malaysia. On its face, this appears to be more of a disagreement with the findings and conclusions of the Tribunal.

36. In considering how the Tribunal approached its task and how it arrived at its conclusion, the Court accepts, as submitted by the Minister, that the Tribunal at [29] of its decision set out the correct law in respect of determining whether a person is owed protection obligations under the complementary protection criterion.  The Tribunal’s consideration of the applicant’s claims against the complementary protection criterion were relatively brief, however, this must be considered in the context of its earlier findings relevant to its consideration of the applicant’s claims and evidence against the refugee criterion.

37. At [24] to [28] of the Tribunal’s decision, the Tribunal considered (and made findings) on the applicant’s claims for protection under the refugee criteria. It did not accept the applicant’s claim to fear harm in Malaysia from a money lender and, having regard to the applicant’s employment history (including in Malaysia and Australia), and his family’s circumstances in Malaysia, it was not satisfied that there was a real chance the applicant would face harm if he returned to Malaysia.

38. The Tribunal’s decision does not indicate that the applicant had made claims under the complementary protection criteria, which were entirely independent of his protection claims under the refugee criterion. In the circumstances, it was open for the Tribunal to rely on its earlier findings to conclude that the applicant did not satisfy the requirements for complementary protection under s 36(2)(aa) of the Act: SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [54]-[56] per Robertson J; MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31] per Marshall J).

39. As to the brief reasons given by the Tribunal, the Court accepts the Minister’s submission that brevity alone is not an error: SZSOV v Minister for Immigration & Anor [2013] FCCA 949 at [43]-[44] per Nicholls J.

40. The Court is satisfied that the Tribunal properly dealt with the applicant’s claims under the complementary protection criteria and no error can be found in its approach.

41. Ground one does not establish jurisdictional error.

    Ground two

42. By ground two, the applicant alleges that the Tribunal had failed to consider the applicant’s claims against the “Convention definition”. When asked which aspects of his claims he believes the Tribunal failed to consider, the applicant said his visa was refused and he has attended the hearing before the Court so that the Court can consider the case.

43. In the absence of particulars, the Court is unable to identify on the face of the decision record any claims or evidence which the Tribunal has failed to consider either under the refugee criteria or complementary protection criteria.

44. The Court accepts the Minister’s submission that the Tribunal set out the correct law in relation to the criteria for a protection visa. It also set out the mandatory consideration to which it was required to consider when assessing the applicant’s claims for protection. The Court is satisfied that the Tribunal considered the applicant’s claims and evidence and that its conclusions and findings were open to it on the material before it.

45. The applicant’s request for the Court to consider his case appears to be an invitation for merits review, which the Court cannot engage in.

46. For these reasons, ground two does not establish jurisdictional error.

    Submissions in the affidavit

47. To the extent that the applicant’s submission alleges that the Tribunal had failed to take into account his circumstances and the claims to fear harm, this is not made out. For reasons discussed above, the Court is satisfied that the Tribunal had considered the applicant’s claim and evidence, and its finding that the applicant was not a person in respect of whom Australia had protection obligations, was open to it on the material before it.

48. No error is established by the submissions in the affidavit.

    CONCLUSION

49. As none of the grounds establish jurisdictional error, the application for judicial review must be dismissed.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.

Associate:

Dated:       14 November 2024