BTG18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 417
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BTG18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 417
File number(s): SYG 956 of 2018 Judgment of: JUDGE LAING Date of judgment: 25 May 2022 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming decision not to grant a protection visa – Court unable to remake the factual findings of the Tribunal – no legally relevant error identified by the applicant in relation to either the procedure undertaken by the Tribunal or its decision – application dismissed. Legislation: Federal Circuit Court Rules 2001 (Cth)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Migration Act 1958 (Cth)
Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 Division: Division 2 General Federal Law Number of paragraphs: 25 Date of hearing: 25 May 2022 Place: Sydney Solicitor for the Applicant Applicant appeared in person Solicitor for the First Respondent Mr Burnham, Sparke Helmore, appeared in person ORDERS
SYG 956 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BTG18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
25 MAY 2022
THE COURT ORDERS THAT:
1.The first respondent’s name be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The application filed on 6 April 2018 be dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), orders 2 and 3 not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)JUDGE LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). By that decision, the Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a protection visa.
BACKGROUND
The applicant in these proceedings is a citizen of Malaysia. He arrived in Australia in August 2016 as the holder of a visitor visa.
On 30 September 2016, the applicant applied for a protection visa.
The applicant’s visa application was refused by the Delegate on 23 March 2017.
On 4 April 2017, the applicant sought review of the Delegate’s decision by application to the Tribunal. He attended a hearing before the Tribunal on 13 March 2018.
On 15 March 2018, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL'S DECISION
The Tribunal accepted that the applicant was a national of Malaysia and that this was the appropriate country of reference for the assessment of his claims (at [9]).
The Tribunal outlined the claims that had been made in written documents that had been submitted by the applicant (at [4]). That material included claims that the applicant had left Malaysia after borrowing a substantial amount of money from loan sharks to pay for his father’s operation following a heart attack. The applicant had claimed that he had repaid the money as per their agreement, but that he was repeatedly threatened and assaulted by the loan sharks and ordered to pay additional interest. The applicant claimed the loan sharks threatened to kill him if he did not pay the money demanded and that if he returns to Malaysia, the loan sharks will find him. The applicant claimed that he reported the situation to the police but that although they ‘did take responsibility’, the issue was unresolved. He claimed that he cannot report the situation again or the loan sharks will kill him (at [4]).
The Tribunal expressed concern that the applicant had provided ‘significantly inconsistent’ claims at the hearing. However, it decided to the give him ‘the benefit of the doubt’ in accepting his explanation for the inconsistencies. The applicant told the Tribunal that he did not know he was signing a protection visa application form but had instead thought it was a work application form. The applicant explained to the Tribunal that he came to Australia to support his family and pay back a debt (at [10]).
The Tribunal noted that it had informed the applicant that it could not decide on whether or not he could work in Australia, but could only consider whether or not he was a refugee or entitled to complementary protection. The applicant responded to the Tribunal that he came to Australia ‘just to work and support his family’ (at [11]).
The Tribunal noted that at the hearing before it, the applicant had claimed that his parents ran a grocery shop business selling fish in Malaysia but that his father had been sick and so his mother had been primarily running the business. When asked on several occasions about his father’s medical condition, the applicant had been unable to name the condition. The Tribunal therefore placed little weight on his evidence in this regard. However, the Tribunal was prepared to accept that the applicant’s father had a medical condition and worked less than he had previously, although noted that on the evidence the family business was still being conducted by the applicant’s mother (at [13]).
The Tribunal accepted that the applicant owed a debt for his studies in Malaysia, equalling approximately AUD$3,300. The Tribunal found on the evidence before it that there was no urgency repay this debt. It noted that the applicant had transferred almost three times this amount to his family since arriving in Australia although none of the debt had been repaid. The applicant informed the Tribunal that he wished to return to Malaysia in August or September 2018 at which time he would repay his debt to the government. The Tribunal confirmed with the applicant that he did not fear any harm if he returned to Malaysia. However, the applicant told the Tribunal that he wanted to have some money from working in Australia. He requested to be able to stay until August or September 2018 (at [14]).
Although noting its reservations, the Tribunal accepted the applicant’s explanation for not raising his new claims with the primary decision maker. The applicant had explained that the claims were not raised earlier because he did not know what a protection visa was and thought he had applied for a visa allowing him to work in Australia. The Tribunal also accepted that the applicant did not want to seek protection in Australia as he had no fears of harm and that he had relied upon his friend to complete the protection visa application form (at [16]).
The Tribunal had regard to country information regarding the unemployment rate in Malaysia (3.3%). It put to the applicant that it appeared that he would be able to obtain a job in Malaysia and pay back his debt. The Tribunal noted that the applicant had agreed with this, although stated that there were more opportunities in Australia (at [17]-[18]).
On the evidence before it, the Tribunal accepted that the applicant came to Australia for the purpose of earning money. It accepted that he had a debt for his education which there was no urgency to repay. The Tribunal found that the applicant did not fear harm for any reason in Malaysia. It did not accept that he faced a real chance of serious harm or a real risk of significant harm for any reason. The Tribunal considered that the applicant would return home and continue living with his parents in Malaysia. Having regard to his experience in Australia, the Tribunal found that the applicant would be able to obtain another job and repay his debt. The Tribunal considered that the applicant was a resourceful person with family in Malaysia and that he would not face a real chance of the relevant harm for any reason, including if he had to return to Malaysia before the time that he wished (at [20]-[26]).
Considering the applicant’s claims singularly and cumulatively, the Tribunal was not satisfied that the applicant was a person to whom protection obligations were owed under the Migration Act 1958 (Cth). Accordingly, the Tribunal affirmed the Delegate’s decision (at [24]-[29]).
PROCEEDINGS BEFORE THIS COURT
An application for judicial review was filed by the applicant on 6 April 2018 containing the following grounds:
The applicant face cruel inhuman treatment punishment from loan sharkers. They used knife to harmed him and warned to kill him. They also harm him with a baseball stick.
– The applicant suffer degrading treatment punishment and torture because he borrows RM 70,000 for his father heart attack. He had to pay RM 80,000 interest as per agreement. But it turned out, they come to his house after one month and asked for interest money RM 50,000, which was not included in the agreement.
– The applicant has well founded fear of persecution of significant economic hardship that threatens his capacity to subsist. He has to [b]ear the burden of his father operation of heart attack.
– The applicant humbly requesting and deeply begging for pardon and apology to the Federal Circuit Court of Australia to reconsider his matter for the sake of justice humanitarian grounds and Australian values of fairness. In order for him to earn the capacity of livelihood of anykind to support his family and especially his elderly ill father, whom suffer from heart attack post operation.
– The applicant humbly begging for pardon and apology.
As will be apparent from the above, the grounds raised by the applicant sought to re-agitate the factual claims for protection that the Tribunal’s decision record indicates were repudiated by the applicant at his hearing before the Tribunal. There is no transcript in evidence calling into question the Tribunal’s account of the evidence that was given. It appears that the applicant wishes for the Court to undertake a new merits review process, similar to that which was afforded to him by the Tribunal. However, the applicant invites the Court to make different factual findings to the Tribunal based upon his renewed claims for protection.
At the hearing of this matter, the scope and limitations of the Court’s powers in contrast to those of the Tribunal were discussed with the applicant. It was also confirmed that the applicant was in possession of the Court Book and other relevant documents (following some assistance from the Minister’s representative), and that he had received the Minister’s written submissions. The Minister’s written submissions were interpreted to him at the commencement of the hearing. The applicant indicated that there was nothing further that he wished to say in support of his application.
As I endeavoured to explain to the applicant at the hearing, the Court is unable at this stage of the process to remake the factual findings that were made by the Tribunal or to assess whether or not the applicant’s claims for protection ought to be accepted. Merits review is beyond the jurisdiction of this Court (see Minister for 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).
No legally relevant error had been identified by the applicant in relation to either the procedure undertaken by the Tribunal or its decision. None is apparent on my review of the materials.
It follows that the application before this Court is unable to succeed.
CONCLUSION
For these reasons, the application must be dismissed.
The Minister also seeks a change to his name in these proceedings to reflect a change of name more generally. I will accordingly make an order that the Minister's name be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Costs are sought by the Minister fixed in the amount of $5,000. I note that this amount is substantially below the scale amount that was in place under the version of the Federal Circuit Court Rules 2001 (Cth) that was force at the time the application was filed. It is also below the scale amount which is provided for under the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) that are presently in force. I accept that the amount sought is reasonable and will make that order.
26 I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate:
Dated: 27 May 2022
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