Cef17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 779
Federal Circuit and Family Court of Australia
(DIVISION 2)
CEF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 779
File number(s): MLG 1084 of 2017 Judgment of: JUDGE TAGLIERI Date of judgment: 21 September 2022 Catchwords: MIGRATION – protection visa application – application for judicial review – protection claims on basis of harm from money owed to suppliers who had made threats of harm – finding that money owed and threats made but Tribunal refused protection visa on basis of being a refugee or complementary protection – factual findings that not satisfied there is a real chance or risk of the applicant being seriously or significantly harmed by his suppliers or that there are substantial grounds for believing that as a necessary and foreseeable consequence of removal to Malaysia, there is a real risk he will suffer significant harm – no jurisdictional error – findings open and bias or apprehended bias not established - application for review dismissed Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36(2), 476, 477, 499
Migration Regulations 1994 (Cth)
Ministerial Direction No 82
Cases cited: Abebe v the Commonwealth of Australia [1999] HCA 14
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZZNK v Minister for Immigration and Border Protection [2015] FCA 217
NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328
NAOX v Minister for Immigration and Citizenship [2009] FCA 1056
SZKLK v Minister for Immigration and Citizenship [2008] FCA 1125
SZOAF v Minister for Immigration and Citizenship [2010] FCA 431
SZOEV v Minister for Immigration and Citizenship [2010] FCA 1045
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of hearing: 11 August 2022 Place: Hobart For the Applicant: In person Counsel for the First Respondent: Mr Rogers Solicitor for the First Respondent: Australian Government Solicitors ORDERS
MLG 1084 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CEF17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
21 september 2022
THE COURT ORDERS THAT:
1.The application filed 24 May 2017 is dismissed.
2.The applicant pay the first respondent’s costs fixed in the sum of $6,000.00 to be paid within 3 months from the date of these Orders.
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 Taglieri
On the 24 May 2017, the Applicant filed an application in the Court for a review of a decision of the Administrative Appeals Tribunal, Migration and Refugee Division, (“the Tribunal”) dated 5 May 2017, which affirmed a decision not to grant a Protection visa. The application enlivens this Court’s jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).
BACKGROUND
The Applicant is a non-citizen who applied for a Protection visa on 12 June 2016, which was refused by a delegate of the First Respondent on 18 October 2016. The Tribunal conducted a hearing on 4 May 2017, at which the Applicant, his wife, and a pastor from the Applicant’s church gave evidence.
On 5 May 2017, the Tribunal affirmed the decision of the First Respondent’s delegate to refuse the Applicant’s Protection visa.
The application to review the Tribunal’s decision came before me on 11 August 2022 for hearing. The Applicant represented himself, and an interpreter was available for his use and assistance when required by him. The First Respondent was legally represented.
BASIS OF tRIBUNAL DECISION
In its decision of 5 May 2017, the Tribunal concluded that it was not satisfied that the Applicant met the requirements of s 36(2)(a) of the Act to be eligible for a Protection visa either on the basis that he was a refugee or alternatively was entitled to complementary protection pursuant to s 36(2)(aa) of the Act.
Under the heading “Finding and reasons”, the Tribunal stated that it accepted that the Applicant operated a business, was well-known in his local community for such, accumulated debts with his business suppliers, sold his home and borrowed money from friends to repay some debt, and left Malaysia as he could not repay his two significant suppliers.[1] It also accepted that the suppliers repeatedly contacted him regarding repaying the loans and those phone calls became threatening causing him to leave.[2]
[1] Tribunal’s reasons for decision at [38].
[2] Tribunal’s reasons for decision at [39].
The Tribunal then turned to consider if there is a real chance or risk of the Applicant being seriously or significantly harmed by his suppliers. It stated in its reasons that:
·It had “considerable doubt” that the suppliers would inflict harm on the Applicant if he were to return to Malaysia, and that they had the opportunity to do so before his departure;[3]
·There was no evidence indicating a real chance or risk of the suppliers fulfilling their threats;[4]
·While there were examples given to the Tribunal of harm suffered by persons in Malaysia unable to repay business debts, there is no evidence that the Applicant owes debts to the same suppliers, so this did not indicate a real chance or risk of the Applicant being similarly treated;[5]
·If the Applicant relocated to a different part of Malaysia, there would be no real risk that his suppliers would cause him serious or significant harm;[6]
·The suppliers have not recently contacted or made effort to contact the Applicant’s wife, who remains in Malaysia, about the debts;[7]
·It accepted that the suppliers may commence legal proceedings against the Applicant, however was not satisfied that such proceedings or the penalties they may entail would cause significant or serious harm;[8] and
·While the country information for Malaysia indicates that ethnic Malays benefit from positive discrimination there is no evidence that Chinese Malays “experience discrimination, or violence, on a daily basis”, and so it was not satisfied that the Applicant would suffer serious for significant harm in Malaysia due to his Chinese heritage.[9]
[3] Tribunal’s reasons for decision at [41].
[4] Tribunal’s reasons for decision at [42].
[5] Tribunal’s reasons for decision at [42].
[6] Tribunal’s reasons for decision at [44].
[7] Tribunal’s reasons for decision at [43] and [44].
[8] Tribunal’s reasons for decision at [45].
[9] Tribunal’s reasons for decision at [46].
Based on the findings and reasons summarised, the Tribunal concluded that the Applicant did not have a well-founded fear of persecution within the meaning of s 5J of the Act and is therefore not a refugee for the purpose of s 5H of the Act.[10] Further, based on the same findings, the Tribunal was not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of removal to Malaysia, there is a real risk he will suffer significant harm within the requirement in s 36(2)(aa) of the Act.[11]
[10] Tribunal’s reasons for decision at [48]
[11] Tribunal’s reasons for decision at [49].
Court Review
A review by this Court is authorised by s 476 of the Act. In order to succeed and obtain the relief sought the Applicant needs to demonstrate jurisdictional error by the Tribunal. What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
Grounds of review – APPLICANT’S CASE
The application for review filed on 24 May 2017 was made within the prescribed time required.[12] It sets out 4 grounds for review, alleging that:
1. The Tribunal failed to consider many vital integers of my case;
2.The Tribunal failed to consider many vital evidence that are relevant to my case;
3. The Tribunal deprived me of procedural fairness;
4. The Member failed to do his duty.
[12] Section 477 of the Act.
The Applicant did not file any further evidence of any kind for the purposes of the review before the Court, but did make oral submissions that gave some insight into what was being argued to amount to jurisdictional error.
His oral submissions related to six paragraphs of the Tribunal’s written reasons for decision (“the reasons”) and were as follows:
(a)The reasons at [25] show that the member asked questions about information and evidence already before her. In particular, about how the Applicant had afforded the money to come to Australia. I understood from what the Applicant argued that he contends that this reflects the member not grappling with his case and having a preconceived view. Presumably this is the basis of Ground One of the Application;
(b)Referring to [30] of the reasons which address the member’s discussion at the hearing about Department of Foreign Affairs and Trade (“DFAT”) country information relevant to Malaysia, the Applicant contends that the member tried to convince him that there was no basis for fearing persecution on the basis of him being Chinese Malay. He described the exchange that took place as a verbal attack. I asked in what way did the member verbally attack him and he replied it was in the way questions were put to him;
(c)That the member inferred at [31] of the reasons, that the Applicant could in fact go to another part of Malaysia and therefore did not satisfy the requirement for complementary protection. In reference to this, the Applicant submitted that the member relied solely on written country information from DFAT, but ignored his evidence of what the real experience is in Malaysia and that his suppliers would still find him if he relocated to Kuala Lumpur;
(d)Referring to [32] of the reasons, the Applicant criticised the member for asking for explanation about the absence of evidence of significant harm to the Applicant before he had come to Australia. He stated that there was no evidence of harm that would occur if he returned, because he had left Malaysia quickly when the threats and warnings escalated;
(e)The Applicant stated that the reasons at [33] and [34] implied that the member did not give any weight or consideration of his wife’s evidence and the pastor’s evidence respectively as the member did not ask for further information. He added that the member was too short with the wife’s evidence when she had come from Malaysia to personally give evidence. I asked what the relevance of this was and whether it was submitted the member stopped the wife and pastor from speaking. The Applicant stated that the member directed the evidence, did not allow them to finish answers and kept twisting the question.
(f)Referring to the members comments at the end of [37] of the reasons, the Applicant stated that the Tribunal did not respond to his statement that many Malaysians are making false claims for protection visas, which is unfair to genuine applicants like him.
FIRST RESPONDENT’S CASE
It was submitted that the Applicant’s oral contentions did not correspond with the general grounds that were so broad as to have little meaning. Despite this, Mr Rogers made submissions in response to the Applicant’s “complaints” about the decision.
The complaint summarised at [12(a)] is that the Tribunal did not have proper regard to the documents it had asked about. This complaint is unfounded as it is clear from [17] of the reasons that the documents were only provided at the commencement of the hearing, so the member would not have had time to fully read and consider them. Regardless, no jurisdictional error arises because the Tribunal accepted that the Applicant paid for his travel to Australia from money he had retained from the sale of his house. Accordingly, the evidence in the documents were not overlooked.
The Applicant’s submissions at [12(b)] and [12(c)] concern reliance on DFAT country information to make findings about relocation within Malaysia, which findings are at [43] to [44] of the reasons. At [44] the member stated:
…the Tribunal is satisfied that if the applicant were to relocate to another part of Malaysia away from his home area, there would also not be a real, as opposed to remote or far-fetched, chance or risk of the applicant's suppliers inflicting serious or significant harm upon him…
The submission made is that finding related to an alternate conclusion about whether the Applicant met the requirements for complementary protection, which was open on the evidence and the finding of fact the Tribunal made.
To the extent that the complaints referred to at [12(c)] involve assertion of error because the member did not have regard to evidence about actual circumstances in Malaysia, it was sufficient for the Tribunal to have regard to the DFAT country information.
The First Respondent contends that the enquiries by the Tribunal referred to in the submission at [12(d)] above were orthodox enquiry, because past experiences inform what is likely to occur in the future. It contends that the relevant issue is that the Tribunal considered the likelihood of harm if the Applicant did return as is demonstrated by the reasons at [43] and there is no error. In any event, the First Respondent submits that the finding was entirely open on the Applicant’s own evidence because of last sentence of the reasons at [42], namely:
…the applicant suggested himself that the suppliers would not kill him because it is illegal.
Concerning the submissions summarised at [12(e)], the First Respondent says that even if the Tribunal did not ask more questions of the Applicant’s wife, he has not identified what evidence she could have given that was materially relevant to the claims for protection. The wife’s evidence did not satisfy the Tribunal as to the nature of the harm, a finding that was open and for the Tribunal to decide.
Regarding the submissions at [12(f)] the First Respondent says the Tribunal approached its task with an open mind and considered the alternative paths to satisfying the Protection visa requirements, even based on the pastor’s evidence. However, applying the relevant statutory tests, it was not persuaded and there is no valid basis for the criticism that his claims were not considered.
The First Respondent sought an order for costs in the fixed sum of $6,000 should the review be dismissed. I invited the Applicant to make submissions about the costs order sought, but he was not in a position to do so. Accordingly the question of costs was reserved to be determined at a later time once judgment on the review was handed down.
EVALUATION
As is self-evident, the grounds of review are abstract and imprecise. Read alone, they could be dismissed on that basis.[13]
[13] WZATH v Minister for Immigration and Border Protection [2014] FCA 969; CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132
Despite this, it is proper to actively evaluate the submissions made by the Applicant during the hearing before me to ascertain if they demonstrate jurisdictional error.
The criticism or complaint referred to at [12(a)] is without justification. The member was entitled to explore and ask questions about the evidence relied upon by the Applicant. In any event, the submission by the First Respondent is correct that no material jurisdictional error arises from the finding concerning the evidence about how the Applicant funded his travel to Australia.
No jurisdictional error was demonstrated as submitted by the Applicant and referred to at [12(b)] and [12(c)]. The member was required to consider DFAT country information for the purposes of assessing the claims of persecution or complementary protection under the Migration Act.[14] The questioning by the member of which the Applicant complains in his submissions in my view simply demonstrates that the member afforded the Applicant procedural fairness in relation to the use to which the country information was to be put for the decision to be taken.
[14] Section 499 of the Act; Ministerial Direction No 82.
Although the Applicant may not have appreciated the use to which the member put the evidence to make its findings and conclusions, no jurisdictional error arises as the weight given to various evidence was a matter for the Tribunal.[15] Accordingly, there is no legitimate complaint to the extent the submissions assert error about fact finding.
[15] MZZNK v Minister for Immigration and Border Protection [2015] FCA 217 at [48].
Concerning the Applicant’s submissions referred to at [12(d)], as the Tribunal was determining on merit if the claims for protection satisfied the requirements of the various provisions of the Act and the Migration Regulations 1994 (Cth), it was entirely open and permissible for the Tribunal to ask questions about the evidence given by the Applicant to explore the meaning and understand the Applicant’s case. In any event, there is no jurisdictional error involved in merely asking questions about the Applicant’s case.
The Applicant’s submissions referred to at [12(e)] involve criticism of the member for the manner in which she dealt with the Applicant wife’s evidence and questioned the wife. The Applicant has not filed a transcript or recording of the proceedings before the Tribunal.[16] I have no evidence about the exchanges between the Applicant and the member during the Tribunal hearing. That being so, I am not persuaded of that which may be implied in the Applicant’s submissions, that the member was not impartial or that she acted improperly.
[16] Order 2 of the Orders made 16 December 2021.
In addition, it was for the Applicant to prove his claims for protection and if the member had doubt about the evidentiary basis for the claims, there was nothing improper about asking questions of a witness apparently called to corroborate the claims.[17]
[17] Abebe v the Commonwealth of Australia [1999] HCA 14 at [187] to [188].
Regarding the submissions at [12(f)], I had difficulty comprehending how this could give rise to jurisdictional error. As such, I asked him if his claim was that the Tribunal member did not actively listen to him about his fears of being harmed. The Applicant responded that she did not listen and rather “attacked” him with her questioning. He added that it did not occur to him to ask for an adjournment as he was nervous and overwhelmed.
Although the Applicant says that he was attacked by the member, the overall reasons convey to me that the member was seeking to explore the claims arising from the evidence given. The member was entitled to ask questions and appears to have kept an open mind to consider all avenues by which the evidence may satisfy the statutory requirements of eligibility for protection.[18]
[18] NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 at [19].
The Applicant did not file a recording of the hearing or a transcript although he could have filed a supplementary court book.[19] To the extent that the submissions at [12(f)] may involve a contention of impartiality, bias or apprehended bias, this cannot succeed. It is impossible to assess the assertion that the member attacked the Applicant on the case he has put before the Court. The Applicant’s submissions referred to at [12(f)] do not demonstrate jurisdictional error on the Tribunal’s part.
[19] Order 2c of the Orders made 16 December 2021.
It is also worth noting in relation to the Applicant’s submissions referred to at [12(e)] and [12(f)] that superior courts conducting judicial reviews and appeals from these have commonly accepted that “Robust and forthright testing of the appellant’s claims by the Tribunal”, “does not sustain a finding of apprehended bias”.[20] See also: NAOX v Minister for Immigration and Citizenship [2009] FCA 1056 at [41] to [43] per Spender J; SZKLK v Minister for Immigration and Citizenship [2008] FCA 1125 at [47] per Logan J; SZOEV v Minister for Immigration and Citizenship [2010] FCA 1045 at [18], 117 ALD 524 at 527 per Flick J.
[20] SZOAF v Minister for Immigration and Citizenship [2010] FCA 431 per Barker J at [17].
Finally, the Applicant did not seek an adjournment and further for the reasons at [33], there can be no jurisdictional error on the basis of failure to afford procedural fairness, if that is what is implied by the submission at [12(f)] or [12](e).
For the reasons given at [22] to [34], the Applicant has not demonstrated jurisdictional error on the part of the Tribunal below. The application for review is dismissed.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 21 September 2022
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