BWM20 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 255
•28 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BWM20 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 255
File number(s): MLG 1453 of 2020 Judgment of: JUDGE COULTHARD Date of judgment: 28 February 2025 Catchwords: MIGRATION – Protection (Class XA) visa – judicial review of a decision of the Administrative Appeals Tribunal – jurisdictional fact – requirement of state of satisfaction of jurisdictional fact – illogicality or irrationality in finding of jurisdictional fact – procedural fairness – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5(J)(1)(a),36, 36(2)(a), 36(2)(aa), 65(1), 476(1), 477(2)
Migration Regulations 1994 (Cth) cl 866.221 of Schedule 2
Cases cited: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Division: Division 2 General Federal Law Number of paragraphs: 61 Date of last submission/s: 19 February 2025 Date of hearing: 19 February 2025 Place: Brisbane Solicitor for the Applicant: The applicant appeared self represented. Solicitor for the First and Second Respondents: Mr Mintz - Clayton Utz. The second respondent filed a submitting appearance save as to costs. ORDERS
MLG 1453 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BWM20
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
28 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration and Multicultural Affairs”.
2.The “Administrative Review Tribunal” be substituted for the “Immigration Assessment Authority” as the second respondent.
3.An extension of time is granted under s 477(2) of the Migration Act 1958 (Cth) for the filing of the application.
4.The application is dismissed.
5.The applicant is to pay the first respondent’s costs fixed in the amount of $7467.00.
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 COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection, (as the Minister was then called) (“the delegate”) to refuse to grant the applicant a Protection (Class XA) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicant is a citizen of Malaysia. The applicant arrived in Australia on 26 April 2012 as the holder of a Subclass 976 ETA (Visitor) visa which was valid until 17 July 2012. On 9 July 2012, the applicant applied for a subsequent visitor visa which was granted on 17 July 2012 and allowed the applicant to stay in Australia until 26 October 2012. The applicant was unlawfully in Australia from 27 October 2012 until he was granted a Bridging visa C on 27 October 2014. On 23 October 2014 the applicant made an application for a Protection (Class XA) visa (“the visa”) (Court Book (“CB”) 1-54).
On 18 March 2015, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36 of the Migration Act 1958 (Cth) (“the Act”) and cl 866.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) (CB 87).
Application for review to the Administrative Appeals Tribunal
On 20 March 2015, the applicant applied to the then Refugee Review Tribunal for a review of the delegate’s decision (CB 96).
On 18 August 2016, the applicant attended a hearing before the Tribunal (CB 178).
On 26 August 2016, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (“the first Tribunal decision”) (CB 177-185).
Proceedings were commenced in this Court pursuant to s 476(1) of the Act for review of the first Tribunal decision by application filed on 22 September 2016 (CB 168-173). On 18 March 2019, Judge Riley of this Court made orders by consent setting aside the first Tribunal decision and remitting the matter to the Tribunal for reconsideration according to law (CB 192-193).
On 25 March 2019, the Tribunal wrote to the applicant notifying him that the application for review would be reconsidered (CB 194-196).
On 2 April 2019, the applicant appointed a registered migration agent to act as his representative and authorised recipient (CB 206-207).
On 17 February 2020, the Tribunal wrote to the applicant inviting him to provide by 11 March 2020, written submissions setting out all claims made and maintained by him (CB 211). The applicant did not provide any submissions.
On 17 February 2020, the Tribunal invited the applicant to attend a hearing on 18 August 2020 to give evidence and present arguments relating to the issues arising in his case, stating that it was unable to make a favourable decision based on the information before it alone (CB 213).
On 18 March 2020, the applicant attended the hearing (CB 251). The applicant was assisted by his representative and an interpreter in the Cantonese and English languages.
On 21 March 2020, the applicant provided the Tribunal with a copy a of letter from his psychologist dated 28 February 2019 (CB 235-237). Then, on 22 March 2020, the applicant provided the Tribunal with a copy of four receipts from his psychologist dated 13 February 2019, 22 February 2019, 28 February 2019 and 22 March 2019 (CB 238-243).
On 26 March 2020, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (“Decision”) (CB 250-269). The Tribunal notified the applicant and provided the applicant with a copy of the Decision (CB 245-249).
THE TRIBUNAL’S DECISION
The Tribunal identified that the issue on review was whether the applicant meets the criteria set out in either s 36(2)(a) or s 36(2)(aa) of the Act ([21]) and summarised the relevant law with respect to refugee criterion and complementary protection criterion ([6]-[19]). The Tribunal also noted that it was required, in accordance Ministerial Direction No. 84, to take account of the Refugee Law Guidelines and Complementary Protection Guidelines prepared by the Department of Home Affairs and the country information assessment prepared by the Department of Foreign Affairs and Trade for protection status determination purposes ([20]).
The Tribunal then made a finding that the applicant is a Malaysian citizen and that accordingly the protection claims would be assessed against Malaysia as the country of reference and the receiving country ([26]).
The Tribunal then set out the applicant’s protection claim in response to questions 44 to 49 of the application for the visa as follows ([28]):
44. Why did you leave that country?
'I left the country fearing for my life as the Government is thinking that I am involved with the Chinese extremist group.'
45. Have you experienced harm in that country?
'No.'
46. What do you fear may happen to you if you go back to that country?
‘I will be killed if I go back, I am still receiving constant threats for my family'.
47. Who do you think may harm/mistreat you if you go back?
‘The government will harm me.’
48. Why do you think this will happen to you if you go back?
‘I fear for my life and safety. I will be killed.’
49. Do you think the authorities of that country can and will protect you if you go back?
‘No.’
The Tribunal then stated that during the course of the hearing the applicant stated that his claim had been prepared by another person on his behalf and that he was not aware of the claims made in his application. The Tribunal stated that the applicant said that the claims were wrong and unfounded, and he renounced the claim as detailed in his visa application ([29]).
The Tribunal stated that, having renounced his claims in the visa application, the applicant claimed that in the event he returned to Malaysia there was a real chance that he would be seriously harmed by material suppliers and loan sharks to whom he owed money in Malaysia ([30]).
The Tribunal then summarised the applicant’s evidence as follows ([31]-[37]):
(a)The applicant was born in Malaysia;
(b)As to his family, the applicant is married with children. His wife and children live in Malaysia. His parents also live in Malaysia. His father worked as a market gardener. His two brothers and three sisters all live in Malaysia;
(c)After leaving school, he worked for his father but was then employed as a tiler with Yong Yin Mosiac & Renovation Works. He then moved to Kuala Lumpur where he continued to work as a tiler as an independent contractor;
(d)The applicant said that while conducting his business he ran up debts of approximately 130,000 ringgits the majority of which was to material suppliers from whom he had received material during the course of his business but whom he had not paid;
(e)The applicant said that he had also borrowed an amount of approximately 10,000 ringgits from a loan shark;
(f)The applicant said that he had started to receive ‘disturbing calls’ from people in relation to the repayment of his debts. The applicant could not identify these people;
(g)The applicant was unable to provide any documentation in relation to any of the moneys he claimed to owe and was not able to provide the identity of any person or business that he claimed he owed money to including the name of the loan shark;
(h)The applicant said that as result of the failure of his business and the debts he owed to the creditors and the loan shark he returned home to hide from his creditors and that he worked for his father for 8 years;
(i)While he was working for his father, he did not receive any threats or harassment from his material supplier creditors but said that about 6 years after he started working for his father the police visited his parents and demanded that the applicant repay the money owed to a loan shark. The applicant claimed that the police threatened his parents and demanded that they pay them the amount of 4000 ringgits. The applicant said that his parents wanted nothing more to do with him and told him to leave;
(j)The applicant then said that he rented premises in Perak for his family, but he did not reside there often as he felt anxious about being discovered by his creditors and that after a considerable amount of time he returned to the premises and continued to reside with his family. He said he remained anxious about his debts, and this continued to play on his mind;
(k)The applicant said that he travelled to Australia because he could no longer cope with the pressure from his creditors;
(l)The applicant claims that if he returns to Malaysia there is a real chance that he will be seriously harmed as a result of owing money to material suppliers and other creditors including a loan shark in Malaysia.
The Tribunal then considered the issue of delay and said that given the extensive delay of approximately two and a half years between the applicant’s arrival in Australia and the time of making his application for a protection visa, it placed less weight on the applicant’s evidence in relation to his claim ([38]-[41]).
The Tribunal then set out the country information for Malaysia with respect to loan shark activity in Malaysia ([42]).
The Tribunal then went on to consider the ground on which the applicant claimed to be a refugee with respect to s 5(J)(1)(a) of the Act. The Tribunal said that, whilst the applicant had not specifically detailed the basis upon which he claims to be a refugee, it is possible for him to claim that as a person who owes money to creditors and, in particular, to a loan shark in Malaysia he is a member of a particular social group ([48]). The Tribunal said that for the applicant to claim to be a member of a particular social group it is necessary that as result of membership of that group, the applicant shares certain characteristics or elements which unite him with the group, which sets the group apart from society at large. Whilst the Tribunal said it had reservations that owing money to a loan shark and other creditors in Malaysia represents a comment element or characteristic that unites him with a group, and sets it apart from society at large, it was prepared for the purposes of its decision to accept that the applicant is a member of a particular social group pursuant to s 5J(1)(a) of the Act ([49]).
The Tribunal then went on to consider whether the applicant had a well-founded fear of persecution (as a member of a particular social group) and whether there is a real chance that the applicant will be persecuted for that reason in the event he was to return to Malaysia. The Tribunal explained that a well-founded fear involves both a subjective and objective element and said that the subjective element concerns the state of mind of the applicant, that is whether an applicant has genuine fear (of persecution) is a question of fact and that the objective element requires that the applicant’s claim be more than merely plausible or credible ([51]-[54]).
The Tribunal said that in the event the applicant did owe money to creditors as claimed, while the applicant may hold a subjective fear of returning to Malaysia, the Tribunal did not accept that the applicant held a well-founded fear of persecution on an objective basis for the following reasons ([61]-[63]):
(a)The applicant’s evidence was that whilst he was working for his father for a period of eight years and after his return to Perak, the applicant did not receive any threats or harassment from material supply creditors;
(b)That assuming the businesses from which the applicant sourced his supplies were legitimate businesses, it is likely they would have abandoned their claims as they would now be statute barred from pursuing the debt in the normal course through the Courts;
(c)It was hard to believe that the applicant had been able to evade creditors wanting to recover their money for a period of eight years given the police were able to locate him at his father’s home in relation to the debt to the loan shark;
(d)The applicant had not provided any evidence of the money owed to material suppliers;
(e)The applicant had not provided any evidence by his wife or other members of his family who may have been able to provide evidence of his efforts to avoid the creditors as claimed;
(f)The Tribunal did not accept that the applicant had been threatened by material suppliers in Malaysia as claimed.
The Tribunal concluded that there was no real chance that the applicant will be seriously harmed in the event he returns to Malaysia by reason of the money owed to material suppliers as claimed ([63]).
As to the applicant’s claims in relation to the money owed to the loan shark, the Tribunal referred to the country information that gangs engage in extortion and loan shark activities ([64]) and went on to say, as to the applicant’s evidence ([66]):
(a)The applicant was only able to provide vague details as to the circumstances in which he borrowed the money from the loan shark, the amount he claims to have borrowed and any repayments;
(b)The applicant was not able to provide any documentary evidence of the loan, including his own bank statement, as to having received the money or any repayments he may have made;
(c)The applicant was not able to provide the Tribunal with the identity of the loan shark;
(d)The applicant did not provide any independent evidence of the police having demanded money from his parents.
The Tribunal concluded that in the circumstances where the applicant had remained in Malaysia for at least eight years after having borrowed the money and waited two years after the alleged visit by the police before arriving in Australia, it did not accept the applicant’s evidence and found that the applicant had not borrowed the money from the loan shark as claimed ([66]).
In the event that the applicant had borrowed money from the loan shark as claimed (which the Tribunal specifically found he had not), the Tribunal said that whilst the country information states that those who borrow money from loan sharks may face societal discrimination, a real or perceived risk of harassment and violence from loan sharks and/or gangsters, it is possible (having regard to the country information) to engage agencies to mitigate those risks ([67]).
Accordingly, the Tribunal concluded that there was no real chance the applicant will be seriously harmed in the event he returned to Malaysia by reason of having borrowed money from various creditors and a loan shark as claimed ([68]).
The Tribunal then considered the applicant’s claims with respect to his mental health. The applicant claimed that he suffered symptoms of stress as a result of the threats and harassment from debt collectors and that as a result he claims there is a real chance he will suffer serious harm in the event he returns to Malaysia ([69]). The Tribunal referred to a letter from a psychologist dated 28 February 2019 which the applicant relied upon. (This letter was provided to the Tribunal after the hearing and is at CB 236-237.) The Tribunal noted that the psychologist did not make any diagnosis as to the applicant’s condition and merely observed that the symptoms described by the applicant were consistent with a stress reaction. The Tribunal said there was no evidence in the report which diagnosed the applicant with an ongoing mental health condition. The Tribunal found that the applicant did not have a mental health condition beyond being stressed for the Tribunal hearing and over the prospect of returning to Malaysia. The Tribunal found that the applicant’s stress in attending the hearing would not result in any real chance of the applicant being seriously harmed in the event he was to return to Malaysia. ([70]-[71]).
In any event, the Tribunal said that were it to have found that the applicant suffered from a mental health condition (which it specifically did not) it did not accept (having regard to the country information) that the mental health facilities in Malaysia are such that there is a systematic and discriminatory conduct towards the applicant or people with mental illness generally in Malaysia ([72]-[74]).
The Tribunal concluded that the applicant does not face a real chance of serious harm, now or into the reasonably foreseeable future, for any convention reason, and therefore does not have a well-founded fear of persecution and as such was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) ([75]-[76]).
As to complementary protection criterion under s 36(2)(aa) of the Act, the Tribunal considered whether it had substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk the applicant will suffer significant harm. The Tribunal concluded that for the reasons already given it was not satisfied that as result of owing money to a loan shark and other creditors there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Malaysia there is a real risk he will suffer significant harm ([77]-[79]). The Tribunal also concluded that there was no evidence of harm the applicant would suffer that would amount to significant harm as a result of his alleged mental health condition in the event he returns to Malaysia and that, in any event, the definition of significant harm requires an element of intent in respect of an act or omission by which the significant harm is inflicted by a person ([22]-[25]).
The Tribunal concluded that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk he will suffer significant harm as required by s 36(2)(aa) of the Act.
Accordingly, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations ([81]-[83]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 5 May 2020. The applicant also filed an affidavit affirmed by his then legal representative on 4 May 2020. The affidavit annexes a copy of the Tribunal Decision.
Procedural orders were made permitting the applicant to file and serve an amended application with proper particulars and any additional evidence on which he seeks to rely and requiring the applicant to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
The material before the Court was the application, the applicant’s affidavit affirmed by his then legal representative, the first respondent’s response, the first respondent’s written submissions and the Court Book. Before the hearing commenced, the Court confirmed with the applicant that he had these documents in Court with him. The Court Book was made an Exhibit in the proceedings.
The applicant appeared in person unrepresented. The applicant had the assistance of an interpreter in the Mandarin and English languages. The applicant was given the opportunity to make oral submissions in support of his application for judicial review and in reply to the first respondent’s submissions.
CONSIDERATION
For the applicant to be successful the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.
The Court explained to the applicant that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error and that the role of the Court on judicial review is not to decide whether, on the evidence before the Tribunal, the Court considers that the applicant should or should not be granted the visa.
Despite the procedural order permitting him to do so, the applicant did not file an amended application. The grounds of review set out in the application are (without alteration):
Ground One:
The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the Applicant and/or extend him a real opportunity to reply to adverse information.
Ground Two
The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the Applicant’s credibility was an important factor in the second respondent’s decision that they he was not a refugee, and an oral interview can give an insight into a person’s credibility that is otherwise unavailable. By refusing to schedule an oral interview with the Applicant, the Second Respondent fell into error / denied the Applicant procedural fairness.
Ground one: procedural fairness – critical matters not raised and no real opportunity to reply to adverse information
The applicant does not particularise what ‘critical matters’ he says the Tribunal failed to sufficiently raise with him and what adverse information he says he did not get an opportunity to reply to. The applicant did not file an amended application or written submissions in which these particulars might have been provided.
The Court took the applicant to his application and directed his attention to the grounds of review under the heading ‘Grounds of Application’. The Court asked the applicant if he could assist the Court by identifying what critical matters he said the Tribunal did not put to him and what adverse information he said he did not get an opportunity to reply to. The applicant said he could not read English. Accordingly, the Court asked the interpreter to read out ground one to the applicant. The Court then repeated its request to the applicant if he could assist the Court by identifying what critical matters he said the Tribunal did not put to him and what adverse information he said he did not get an opportunity to reply to. The applicant could not assist the Court.
The applicant had renounced the claims that he made in his visa application and made new claims at the hearing before the Tribunal. The Tribunal heard the applicant’s evidence at the hearing about those claims and considered them. The Court cannot identify, by reference to the Tribunal’s reasons for Decision, any ‘critical matters’ which the Tribunal should have but did not put to the applicant. The applicant has not identified any in his application or in his oral submissions.
Having renounced the claims that he made in his application and put new claims at the Tribunal hearing the applicant was on notice of those claims that he was now making. The Tribunal did not rely on any information about the applicant other than that which the applicant put to the Tribunal. Accordingly, there was no adverse information which the Tribunal failed to put to the applicant for comment.
Although not raised by ground one in the application, the applicant made an oral submission that there was information he had wanted to provide from his family and that he had needed extra time to provide this information. The Court asked the applicant if he had asked the Tribunal for time to provide that information. The applicant said that he could not remember as it was a long time ago. There is no evidence in the Court Book of any exchange with the Tribunal in which the applicant or his legal representative sought extra time to provide information to the Tribunal. By letter dated 17 February 2020 sent to the applicant’s legal representative, the Tribunal invited the applicant to a hearing (CB 210-221). In that letter, the representative was informed that written submissions should be provided by 11 March 2020 setting out all claims made and maintained by the applicant and that if it were proposed that a witness give evidence, a witness statement setting out the witness’s evidence should also be provided by 11 March 2020. The applicant’s legal representative corresponded with the Tribunal about the hearing date (CB 222-226) but did not provide any written submissions or witness statements. There is no record in the Tribunal’s hearing record (CB 227-228) or in the Tribunal’s reasons for Decision that the applicant or his legal representative asked for time to provide more information in support of the applicant’s claims. The applicant did provide further information after the hearing. This was the letter from his psychologist dated 28 February 2019 (CB 237). This letter was considered by the Tribunal.
Accordingly, the Court concludes that there is no basis for the applicant’s contention that he had communicated to the Tribunal that he required extra time to provide information in support of his claim.
The applicant repeated a number of times during his oral submissions that the basis for his application for review was that ‘the Tribunal did not believe him and that is why he keeps appealing’ and that the Tribunal ‘made an error in not believing him’. The applicant did not otherwise elaborate as to the basis upon which he contended that the Tribunal made an error in not believing him.
A criterion for the issue of a protection visa under the Act is that the applicant be a non-citizen to whom the Minister “is satisfied” Australia has protection obligations. If the Minister is satisfied about this (and that other criteria have been satisfied) then the Minister is to grant the visa; if “not satisfied”, then the visa must be refused (s 65(1) of the Act).
Although not articulated in this way by the applicant, the Court has considered whether, in not being satisfied that the applicant was someone to whom Australia has protection obligations the Tribunal’s decision was “illogical” or “irrational” sufficient to give rise to jurisdictional error on the approach explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (‘SZMDS’) (per Crennan and Bell JJ at [130]-[131]). If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing Court to be illogical or irrational or unreasonable, simply because one conclusion is be preferred to another possible conclusion (SZMDS per Crennan and Bell JJ at [131]). The correct approach, is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it made on the material before it (SZMDS per Crennan and Bell JJ at [133]).
In its reasons for Decision, the Tribunal summarised the applicant’s evidence given at the hearing relevant to the applicant’s claims that he had a fear of persecution by reason of his claims to owe money to material supply creditors and a loan shark, accepting for the purposes of its decision that the applicant was a member of a particular social group pursuant to
s 5J(1)(a) of the Act. The Tribunal then went onto consider whether it was satisfied that the applicant had a well-founded fear of persecution in the event the applicant did owe money to material supply creditors. The Tribunal explained why it did not accept that the applicant held a well-founded fear, on an objective basis, having regard to the applicant’s evidence. The Tribunal then went on to consider the applicant’s claim in relation to the money he claimed to owe to a loan shark in Malaysia. The Tribunal said that it did not accept that the applicant owed money to a loan shark and explained why it came to that conclusion by reference to the applicant’s evidence. The Tribunal, however, went onto consider whether in the event that the applicant had borrowed money from a loan shark why, having regard to the country information regarding loan sharks, it concluded that there was no real chance the applicant would be seriously harmed in the event he returned to Malaysia by reason of having borrowed money from a loan shark as claimed.
Having considered the Tribunal’s reasons for Decision, the Court is of the view that on the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. There was a logical connection between the evidence and the inferences or conclusions drawn by the Tribunal. In the end, the applicant’s contention that the Tribunal made an error in not believing him, goes no further then expressing disagreement with the Tribunal’s decision and invites the Court to engage in impermissible merits review.
No jurisdictional error is established on ground one of the application.
Ground two: procedural fairness – failure to interview the applicant
In ground two, the applicant contends that he was denied procedural fairness because the second respondent refused to schedule an interview with him.
There is no basis for this contention. Given that the second respondent was named in the application as the Immigration Assessment Authority (“IAA”), it seems likely that this ground was drafted by the applicant’s then legal representative having regard to procedures that apply to the IAA. To be clear, there was no decision in this matter by the IAA. The IAA was named as a party to these proceedings in error.
The Tribunal invited the applicant to a hearing (CB 213-218). The applicant attended the hearing and gave oral evidence. He was assisted by his legal representative who was the same legal representative who prepared the application in these proceedings. The applicant did not contend that he did not attend the hearing before the Tribunal.
No jurisdictional error is established on ground two.
The Court has concluded that the applicant has not established jurisdictional error on either ground one or ground two of the application. Nevertheless, the Court has observed some drafting errors in the Tribunal’s Decision which require mention. At [47], after setting out some of the general principles as to the approach to be taken by a Tribunal in making credibility findings ([43]-[46]), the Tribunal concluded that as the applicant had failed to appear before the Tribunal it provided the applicant with the benefit of the doubt and accepted that he was a member of a gang, that he had attempted to leave the gang and had been beaten and threatened by gang members. This is clearly incorrect. The applicant attended the hearing and his claim to protection was not based on the membership of any gang but on claims with respect to indebtedness to material supply creditors and a loan shark. The Tribunal was otherwise clear throughout the remainder of the Decision that the applicant had attended the hearing, given evidence and that his claims to protection related to his claimed indebtedness to material supply creditors and a loan shark. Then at [52] when considering the subjective element of well-founded fear, the Tribunal stated that it accepted that the applicant had a subjective fear of being harmed or persecuted in the event that he returns to Iran. Also, at [75] when coming to its conclusions the Tribunal said that it found that there was no real chance the applicant will suffer serious harm in the event that he returns to Pakistan. These references (to Iran and Pakistan as the receiving country) are, of course, an error. However, it is clear from the remainder of the Decision that the Tribunal was in no doubt that the receiving country was Malaysia and the Tribunal’s reasoning proceeded on that basis. The Court is satisfied that these errors, which seem to clearly arise from insufficient care being taken in the proof-reading stage, do not disturb the findings the Court has made that the Tribunal did not fall into jurisdictional error.
CONCLUSION
Accordingly, for the reasons given above, no jurisdictional error is established, and the application is dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 28 February 2025
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