BSP17 v Minister for Immigration

[2018] FCCA 912

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSP17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 912

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 422B, 424A, 425, 476

Cases cited:

Minister for Immigration v Ahmed (2005) 143 FCR 314
Minister for Immigration v Lay Lat (2006) 151 FCR 214
SZCIJ v Minister for Immigration [2006] FCAFC 62

Wu v Minister for Immigration (1994) 48 FCR 294

Yilmaz v Minister for Immigration (2000) 100 FCR 495

Zubair v Minister for Immigration (2004) 139 FCR 344

First Applicant: BSP17

Second Applicant: BSR17

Third Applicant: BSS17

Fourth Applicant: BST17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1215 of 2017

Judgment of: Judge Driver

Hearing date: 13 April 2018

Delivered at: Sydney

Delivered on: 13 April 2018

REPRESENTATION

The First, Second and Third Applicants appeared in person

Solicitors for the Respondents: Ms S Sangha of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,667 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1215 of 2017

BSP17

First Applicant

BSR17

Second Applicant

BSS17

Third Applicant

BST17

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 March 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants’ protection visas.  There are four applicants, who are a mother, a father and their two sons.  Three of the four applicants attended today’s hearing before me. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 6 April 2018. 

3. On 23 February 2012, the applicants first arrived in Australia as holders of an Electronic Travel Authority (ETA). The ETA visas were valid until 25 May 2012. On 24 May 2012, the applicants lodged a combined application for a student visa that was granted on 27 July 2012. A further application for a student visa made on 26 September 2013 was refused by a delegate in February 2014. That decision was affirmed by the (then) Migration Review Tribunal in October 2014 and the applicants then sought judicial review of that decision on 10 November 2014.[1]

   [1] Court Book (“CB”) 94

4. On 24 November 2014, the applicants applied for protection visas.[2] The first and second adult applicants made their own claims for protection,[3] whereas the third and fourth applicants applied as members of the same family unit.[4]

   [2] CB 1-56

   [3] CB 11-26; CB 27-42

   [4] CB 43-49; CB 50‑56

5. In his protection visa application, the second applicant claimed he left Malaysia for New Zealand in December 2006 to find a job and to “support his family.” He claimed he could not stay in Malaysia because in 2004 he had borrowed money from loan sharks in relation to his business. He claimed the loan sharks would kill him and his family. The applicants claimed the loan sharks entered their home and damaged their car. The second applicant claimed he had returned to Malaysia in May 2009 for about a week before returning to New Zealand to bring his family to New Zealand.[5]

   [5] CB 34-37

6. In her protection visa application, the first applicant claimed she had been persecuted by loan sharks since the second applicant’s departure from Malaysia to New Zealand. She claimed the loan sharks harmed them “very often” by coming to her father’s house looking for the second applicant. The first applicant also claimed the loan sharks had attacked their car, “locked” their house and attempted to kidnap the children in 2005.[6]

   [6] CB 18-21

7. The first and second applicants appeared at an interview before the delegate on 1 April 2015.[7]  The delegate provided a brief summary of the evidence given by the adult applicants at the interview.[8]  On 8 April 2015, the delegate made a decision refusing the applicants protection visas, essentially on the basis that the applicants’ protection claims were not credible.[9]

   [7] CB 96.7

   [8] CB 97-100

   [9] CB 93-105

The Tribunal

1. On 17 April 2015, the applicants applied to the former Refugee Review Tribunal (RRT) for a review of the delegate’s decision.[10]

   [10] CB 106-108

2. On 16 September 2016, following the transfer of the RRT’s jurisdiction to the Tribunal, the applicants were invited to attend a case conference before the Tribunal on 4 October 2016,[11] which they accepted.[12]

   [11] CB 114-116

   [12] CB 117-118

3. On 20 October 2016, the applicants were invited to attend a hearing before the Tribunal on 7 December 2016.[13]  The applicants accepted the invitation[14] and attended the scheduled hearing.[15]

   [13] CB 119-125

   [14] CB 126

   [15] CB 129-130

4. On 23 March 2017, the Tribunal made a decision affirming the delegate’s decision to refuse the applicants’ protection visas.[16]

   [16] CB 133-145

5. The Tribunal was not satisfied that the first and second applicants had provided “completely truthful evidence” regarding their personal circumstances in Malaysia.[17]  The Tribunal found the second applicant had provided inconsistent evidence about his employment history, and placed weight on his failure to mention in his visa application that he commenced a transport business. The Tribunal found this omission was significant, as the second applicant claimed that he took out the first loan from a loan shark in order to undertake repairs to one of the business’ buses. Although it acknowledged that the omission on its own would not be sufficient to cause the Tribunal to doubt the truthfulness of the evidence, it found the applicants’ evidence was “problematic in other respects”.[18] The Tribunal found the second applicant’s oral evidence to the Tribunal regarding the timing and size of the loans he claimed to have obtained from loan sharks was “vague, internally inconsistent”.  He initially indicated to the Tribunal that his first loan was RM25,000 and that he took out a further RM25,000 loan from a different loan shark two years later, followed by additional loans totalling RM100,000. However, when asked for more detail, he said he had taken out loans of RM35,000, RM15,000, RM25,000, RM10,000 and RM15,000. The Tribunal also found the applicants’ alleged loans were unsupported by any documentary evidence.[19]

   [17] CB 143 at [69]

   [18] CB 143, [70]

   [19] CB 144 at [71]

6. The Tribunal[20] also found the evidence about “the loan sharks’ behaviour towards the applicants unpersuasive.” The Tribunal referred to the second applicant’s oral evidence, where he indicated a car with “black tinted windows” had driven past their house in 2011. The Tribunal noted the first applicant also described “having a feeling” that “someone” was watching her from afar. However, the first applicant was unable to point to any particular evidence that would cause her to feel that way. The Tribunal also noted the first applicant mentioned loan sharks following her sister and leaving a business card with her. The Tribunal found it “implausible” that the loan sharks would not take some action to recover their debt other than driving past the applicant’s house, following them, watching from afar or leaving a business card with the first applicant’s sister. The Tribunal noted the first and second applicants had claimed they reported these matters to the police but found they had not provided any supporting documentary evidence.

   [20] CB 144 at [72]

7. The Tribunal also found the applicants’ return to Malaysia in 2011 and their failure to make reasonable enquiries as to how they might seek protection in New Zealand[21] suggested they may not have been fearful for their safety at the time of their return. The Tribunal considered the applicants’ explanation that they did not know about refugee visas was “unpersuasive”, given their lengthy stay in New Zealand and the fact that they had obtained working visas there.[22]  The Tribunal also had difficulty reconciling the applicants’ delay in applying for protection visas for some two and half years after their arrival in Australia in February 2012 (in which time they made applications for student visas) with their claim to have left Malaysia in fear of their safety.[23]

   [21] The first, third and fourth applicants lived in New Zealand for approximately two and a half years from 2009 to 2011 (CB 15, 45, 52) and the second applicant lived in New Zealand for approximately five years from 2006 to 2011 (CB 31)

   [22] CB 144 at [73]

   [23] CB 144, [74]

8. The Tribunal was prepared to accept that the applicants had significant unpaid debts in Malaysia that culminated in them being declared bankrupt and their home being repossessed and auctioned. However, the Tribunal found that the applicants’ documentary evidence suggested these debts were owed to legitimate lenders and the legal proceedings against the applicants were concluded by the end of 2011 or early 2012.[24]

   [24] CB 144 at [75]

9. The Tribunal was not satisfied that the applicants ever took out loans from loan sharks or experienced any harm from loan sharks and, “even if they did”, the Tribunal was not satisfied they continued to owe any debts to loan sharks, or that they genuinely feared for their safety by the time of their return to Malaysia in 2011. The Tribunal was not satisfied the applicants still had any unpaid debts to loan sharks at the time of its decision.[25]

   [25] CB 144 at [76]

10. The Tribunal was prepared to accept that the applicants had no home in Malaysia and may have strained relationships with their families as a consequence of their debts.  However, as the first and second applicants were of working age, educated and had employment experience, it was not satisfied there was a real chance or a real risk that they would suffer any financial or economic difficulties if they were to return to Malaysia that would amount to “persecution” or significant harm.[26]

    [26] CB 145 at  [77]

11. The Tribunal was not satisfied that the first or second applicants met s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act).[27] The Tribunal also held there were not substantial grounds for believing that there was a real risk that the first or second applicants would suffer significant harm and did not meet s.36(2)(aa) of the Migration Act.[28] It followed the third and fourth applicants were unable to satisfy the criterion set out in s.36(2)(b) or (c) of the Migration Act.[29]

    [27] CB 145 at [78]

    [28] CB 145 at [79]

    [29] CB 145 at [80]

The present proceedings

1. These proceedings began with a show cause application filed on 21 April 2017.  The applicants continue to rely upon that application.  The grounds in it are expressed in narrative form.  They are generally repeated and expanded upon in an affidavit by the first applicant which accompanied the application.  I received that affidavit as a submission. 

2. The Minister notes that the application is, on its face, defective in that it seeks a writ of certiorari, but not a writ of mandamus.  That technical defect can be readily cured and I have done so in my own hand. 

3. I received as evidence the court book in the form filed on 3 April 2018 which replaced an earlier court book filed on 10 August 2017. 

4. I received as evidence, in addition, exhibit R1, a bundle of documents identified by the Tribunal in its decision at [26]-[30] and [61].[30] 

   [30] Exhibit R1

5. I invited oral submissions from the second applicant this afternoon, who spoke on behalf of the other applicants.  He made extensive oral submissions concerning the problems he and his family face in Malaysia, and their circumstances since leaving Malaysia and New Zealand.  He sought to impress upon me the truth of the claims which he put to the Minister’s Department and the Tribunal.  To that extent, the applicants take issue with the merits of the Tribunal decision.  Those merits are beyond the scope of this proceeding. 

6. I did explore at some length with the second applicant his bankruptcy in Malaysia and the differences between Malaysian and Australian bankruptcy law.  I queried with the Minister’s solicitor whether a claim arose from the material before the Tribunal of an inability to subsist in Malaysia and, if so, whether that claim was considered by the Tribunal.  The Minister’s solicitor directed my attention to [77] of the Tribunal’s reasons, which, on reflection, adequately deals with that issue.  In other respects, I agree with the Minister’s submissions concerning the grounds of review advanced. 

7. There are five grounds in the judicial review application. For the reasons outlined below, the application fails to raise an arguable case for the relief claimed.

8. Ground 1 states the Tribunal failed to consider their application “as they have to find out which the reason given why my protection visa cannot be granted” and they gave “evidence on my affidavit”. Whilst not entirely clear, it appears this ground refers to the affidavit of the first applicant sworn on 21 April 2017 and filed in support of the protection visa application, in which she repeats her claims for protection. If so, then the contention in ground one appears to be no more than an attempt to take issue with the Tribunal’s factual findings that the applicants’ protection claims were not credible. This complaint fails to identify any arguable case of jurisdictional error. The mere existence of adverse findings does not identify jurisdictional error. The Tribunal was under no obligation to uncritically accept any and all allegations made by the applicants,[31] and it was open to the Tribunal to find the adult applicant’s claims and evidence were not credible for the detailed and cogent reasons it gave. Moreover, the Tribunal was not required to make the applicants’ case for them.[32]  The allegation that the Tribunal failed to consider the application cannot succeed. This complaint in substance seeks impermissible merits review.[33]

   [31] Randhawa v Minister for Immigration (1994) 52 FCR 437

   [32] Abebe v The Commonwealth (1999) 197 CLR 510 at [187]; Prasad v Minister for Immigration (1985) 6 FCR 155 at 176

   [33] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

9. Ground 2 asserts the Tribunal failed to consider the application “on the basis of the natural and justice procedure raw (sic) fairness.” No particulars have been provided in support of this ground to make these complaints meaningful. There is nothing to support the bland assertion that the Tribunal failed to afford the applicants procedural fairness to the extent it was required to do so by s.422B. As the Tribunal was unable to find in favour of the applicants on the material before it, it validly invited them to appear at a hearing to present arguments and provide evidence consistent with its obligations under s.425 of the Migration Act. There is nothing to suggest (and no evidence to verify) that the Tribunal failed to act in accordance with its obligations under s.425 of the Migration Act. Nor is there any information that engaged the Tribunal’s obligations under s.424A(1) of the Migration Act. The Tribunal is not required to afford an applicant common law natural justice.[34] An applicant is entitled only to the rights afforded to them under Part 7 of the Migration Act. The complaint in ground two is meaningless and fails to establish any arguable case of error.

   [34] Minister for Immigration v Lay Lat (2006) 151 FCR 214; SZCIJ v Minister for Immigration [2006] FCAFC 62

10. Ground 3 states (without correction): “Injustice and inhuman to the immigration officer to given in correct information to AAT regarding the interview held with me and husband and not accepted at all the information.” It is not clear what is intended by this complaint. Further, the applicants do not even identify what information was allegedly incorrect and provided to the Tribunal. To the extent that the applicants seek to review the delegate’s decision, this ground must fail as the Court has no jurisdiction in respect of the delegate’s decision.[35]

    [35] Migration Act, s.476(2)(a)

11. Ground 4 simply states that the applicants were refused protection visas by the delegate and have now applied to the Tribunal “for the decision and hearing to get back my visa (sic).” This is merely a statement of fact about the applicant’s migration process and does not give rise to even an arguable case of jurisdictional error.

12. Ground 5 again takes issue with the delegate’s decision and the fact that the delegate [without correction] “used the word and verball as him torgue and forcing me and my husband and to tell all the story loan shark activity and at the end he not accepted the reason and torgue”. This ground is nonsensical. At its highest, it appears to be an allegation about how the delegate conducted the interview and then proceeded to make an adverse decision but, as noted above, the delegate’s decision is not subject to judicial review (s.476(2)(a) of the Migration Act) and any defects and irregularities in the delegate’s decision (which are neither admitted nor apparent), will be cured by the Tribunal’s decision absent any jurisdictional error.[36]  This ground also fails to identify any arguable case of jurisdictional error in the approach and decision of the Tribunal.

    [36] Wu v Minister for Immigration (1994) 48 FCR 294; Yilmaz v Minister for Immigration (2000) 100 FCR 495; Zubair v Minister for Immigration (2004) 139 FCR 344 and Minister for Immigration v Ahmed (2005) 143 FCR 314

13. The first applicant’s affidavit sworn on 21 April 2017 and filed in support of the application repeats the applicants’ protection claims, recounts their migration history and provides further details of how the delegate’s interview was conducted. Such matters do not meaningfully advance their judicial review application.

14. There are, undoubtedly, humanitarian considerations in this case. Apart from the serious financial problems confronting the applicants in Malaysia, one of their two sons is seriously ill in hospital with cancer. The second applicant also recently suffered a heart attack. It would be desirable if the Minister’s Department investigated those issues and put any necessary submission to the Minister concerning ministerial intervention. It would seem to me inhumane to require the applicants to depart Australia until such time as the health condition of the son has resolved.

15. On the legal issues before me, however, the applicants are unable to demonstrate an arguable case of jurisdictional error by the Tribunal. 

16. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

17. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The second applicant inquired whether the costs could be reduced.  The Minister seeks scale costs and I see no reason to depart from the scale.  I explained to the applicants the consequences of making a costs order.  The third applicant then drew to my attention that he is in the course of completing secondary education in Australia.  He seeks the opportunity to complete his education.  That is something that the Minister could consider if he was so minded. 

18. I will order that first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,667 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  17 April 2018