CAA18 v Minister for Home Affairs
[2019] FCCA 518
•4 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAA18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 518 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Malaysia – applicant not believed – unparticularised grounds of review advanced – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.5J |
| Cases cited: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Minister for Immigration v Jia Legeng (2001) 205 CLR 507 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 Randhawa v Minister for Immigration (1994) 52 FCR 437 Re Refugee Tribunal; Ex Parte H (2001) 179 ALR 425 SCAA v Minister for Immigration [2002] FCA 668 VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 WABC of 2002 v Minister for Immigration [2002] FCAFC 286 WAJS v Minister for Immigration [2004] FCAFC 139 |
| Applicant: | CAA18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1126 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 4 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 4 March 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms M Butler of Sparke Helmore |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1126 of 2018
| CAA18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 16 March 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant and his wife protection visas. There were two applicants before the Tribunal. Only the first applicant, the applicant husband, is a party in these court proceedings.
Background facts relating to this matter are otherwise set out in the Minister’s submissions filed on 22 February 2019.
The applicant, a citizen of Malaysia, arrived in Australia on 13 March 2017 as the holder of an Electronic Travel Authority (Class UD) (Subclass 602) visa.[1]
[1] Court Book (CB) 48, 71
On 9 June 2017, the applicant applied for a protection (Class XA) (Subclass 866) visa.[2] His claims for protection were set out in an undated statement attached to his visa application,[3] and can be summarised as follows:
a)in July 2016, he borrowed money from a finance company following financial difficulties caused in part by payments for his mother-in-law’s cancer treatment;
b)in November and December 2016, he was assaulted on two occasions by agents of the finance company after failing to meet payment deadlines;
c)he sought assistance from the police, but was told that it was a personal matter and the police would not investigate;
d)on 12 February 2017, he again failed to make payment. He was abducted from his home, taken to an office, and beaten. He was made to call his wife to pay a ransom for his release. His wife called the police, but they were unwilling to assist so she borrowed money from friends. He was then released; and
e)he was scared to return to Malaysia because his life would be in danger.
[2] CB 67
[3] CB 39
The applicant’s wife was a dependent applicant to the applicant’s protection visa application and did not raise her own claims for protection.[4]
[4] CB 2
On 29 August 2017, the delegate refused to grant the visas.[5] On 22 September 2017, the applicants applied to the Tribunal for review of the delegate’s decision.[6]
[5] CB 67-78
[6] CB 79-80
On 29 January 2018, the applicant appeared at the hearing to give evidence and present arguments with the assistance of a Mandarin interpreter.[7]
[7] CB 91
During the Tribunal hearing, the applicant also claimed to fear harm if returned to Malaysia on the basis of anti-Chinese discrimination.[8]
[8] CB 103 [36]
On 16 March 2018, the Tribunal affirmed the decision of the delegate not to grant the applicant and his wife a visa.
Tribunal decision
The Tribunal found the applicant’s evidence at the Tribunal hearing to be “lacking in detail, supporting material and context”.[9]
[9] CB 100 [21]
The Tribunal identified four bases for its significant concerns about the applicant’s claim to be a victim of loan sharks:[10]
a)the applicant provided “incomplete and selective information at various stages of his primary and review application”, particularly in relation to his “past employment, business interests and travel abroad”;
b)there seemed to be a disconnect between the applicant’s urgent need for funds in the second half of 2016, namely a family medical emergency, and the applicant’s wife’s acquisition of a passport, perhaps for work or (leisure) travel;
c)there was a contradiction between the applicant’s decision to turn to a loan shark and the availability of relatives and friends to assist the applicant financially (by acquiring passports, funding travel abroad, and meeting his children’s expenses); and
d)the apparent lack of demonstrated effort to repay the debt to the loan shark, given his claim that they were making their presence felt at the children’s school.
[10] CB 102-103 [31]-[32]
The Tribunal rejected the applicant’s claims in relation to the loan shark and all the associated claims.[11] The Tribunal also did not accept that either the applicant or his wife sought police assistance or that the police declined to help. The Tribunal found that the applicant did not depart Malaysia fearing for his safety, or that the loan shark’s agent had come looking for him since.[12] While it accepted that he may have left Malaysia due to financial pressures, it did not accept that he genuinely feared harm from loan sharks or anyone else.[13] Nor did it accept that any outstanding debts or financial goals involved any fear of serious or significant harm.[14]
[11] CB 103 [33]
[12] CB 103 [34]
[13] CB 103 [34]
[14] CB 103 [35]
The Tribunal noted that the applicant raised a claim towards the end of the Tribunal hearing after the Tribunal had signalled its credibility concerns, to fear harm on the basis of anti-Chinese discrimination.[15] Noting that the applicant spoke in general terms and did not refer to any personal experiences of discrimination, the Tribunal considered that the claim was an afterthought.[16]
[15] CB 103 [36]
[16] CB 103 [36]
On the basis of country information, the applicant’s general account of his life in Malaysia, and the circumstances in which he advanced the claim, the Tribunal did not accept that the applicant (or any family member) experienced anti-Chinese discrimination involving serious or significant harm, or that he had any fear of such harm.[17]
[17] CB 103 [37]
Having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for one of the reasons in s.5J(1) of the Migration Act 1958 (Cth).[18]
[18] CB 104 [40]-[44]
Relying on its anterior findings, the Tribunal was not satisfied that the applicant faced a real risk of significant harm.[19] It found that there was no real risk that the applicant would be subjected to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor was it satisfied that the applicant would suffer arbitrary deprivation of life or the death penalty.[20]
[19] CB 104 [46]
[20] CB 105 [47]
Accordingly, the Tribunal affirmed the decision under review.[21]
[21] CB 105 [53]
The present proceedings
These proceedings began with a show cause application filed on 20 April 2018. The applicant continues to rely upon that application. The grounds in it are:
1.The Tribunal dealt with my application with bias.
2.The Tribunal did not fully consider my claims.
3.The Tribunal rejected my claims without reasonable grounds.
The application is supported by a short affidavit filed with it, which I received as a submission. I have before me as evidence the court book lodged on 15 June 2018 and filed on 26 June 2018.
I invited oral submissions from the applicant this afternoon. He told me of his concerns concerning the loan sharks in Malaysia. He disagrees with the decision of the Tribunal, but he was not able to point to any legal issue in relation to that decision.
I directed the applicant’s attention to Ground 1 in the application, which is an assertion of bias. He told me that he was assisted by a friend who apparently prepared that application. The applicant was not able to point to any issue bearing on the allegation of bias. He is, however, concerned with the Tribunal’s adverse credibility findings. Those findings were open to the Tribunal on the material before it.
I discussed with the applicant his claims for protection. It is apparent that circumstances have changed since the Tribunal’s decision. In particular, there were stressors on the marriage between the applicant and his wife, and she has returned to Malaysia to care for their children. The applicant also told me that he has had some communication with the loan sharks in Malaysia and he has told them not to trouble his family. He has, in effect, promised to make regular payments to the loan sharks and has been regularly sending money home to his family with an instruction to attempt to make regular loan payments.
The applicant is, it seems, more sanguine now about returning to Malaysia, but is seeking to stay in Australia for another three to six months in order to further enhance his position financially. That is a matter which he could raise with the Minister’s Department.
I agree with the submissions of the Minister in relation to the grounds of review raised.
Ground 1 is a bare allegation of bias. Such an allegation is serious and must be firmly and distinctly made and clearly proven.[22] The applicant has made no attempt to particularise this serious allegation or provide any evidence to suggest that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, a proper evaluation of the matter.[23] Nor is there anything on the material before the Court to indicate that a fair minded and informed person might reasonably apprehend that the member might not have brought an impartial mind to bear on the decision.[24] It is well established that the method of the Tribunal is inquisitorial, and that the member was entitled to test the applicant’s claims, and in relation to credit, was entitled to have regard to the earlier evidence given by him.[25]
[22] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 531
[23] Jia Legeng at 531
[24] Re Refugee Tribunal; Ex Parte H (2001) 179 ALR 425 at [27]
[25] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [78]-[81]
Further, the member’s statement of reasons alone will rarely support a finding of an apprehension of bias.[26] Nor can any inference of bias be drawn from the mere fact of adverse findings in his reasons.[27]
[26] Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [33], [67]
[27] VFAB at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3]
The applicant’s bare assertions rise no higher than an emphatic expression of disagreement with the Tribunal’s findings. No arguable case of jurisdictional error is raised by Ground 1.
Ground 2 asserts that the Tribunal failed to consider the applicant’s claims. The applicant has not particularised what claims the Tribunal failed to consider.
The Tribunal considered the applicant’s claims in relation to the loan shark and anti-Chinese discrimination and made dispositive findings that were open on the evidence before it and for the reasons it gave.[28]
[28] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [58]
Ground 3 invites the Court to undertake impermissible merits review.[29] The Tribunal was under no obligation to uncritically accept any and all allegations made by the applicant,[30] particularly in circumstances where those allegations were vague, inconsistent and lacking particularity. As noted above, the Tribunal’s findings in relation to the credibility of the applicant’s claims were open to it for the reasons it gave.
[29] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
[30] Randhawa v Minister for Immigration (1994) 52 FCR 437 at 451
Furthermore, the Tribunal’s adverse credibility findings did not require positive evidence; it was sufficient for the Tribunal to simply disbelieve the evidence because of surrounding circumstances.[31] No arguable case of jurisdictional error is raised by this ground.
[31] WAJS v Minister for Immigration [2004] FCAFC 139 at [17]
Conclusion
I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), as I am satisfied that the applicant is unable to raise an arguable case of jurisdictional error by the Tribunal.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale at the time the application was filed. The applicant indicated that he may wish to pay by instalments, or otherwise have time to pay, but he did not oppose the making of a costs order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 6 March 2019
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