CFJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 329

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CFJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 329  

File number(s):

MLG 1083 of 2017

Judgment of:

JUDGE EGAN

Date of judgment:

10 May 2022

Catchwords:

MIGRATION – Application for protection visas – where Tribunal properly considered all clearly articulated claims – where Tribunal carefully considered country information – no jurisdictional error established – application dismissed  

Legislation:

Migration Act 1954 (Cth) ss. 65, 36(2)(a), 36(2)(aa),  s. 499, 36(2)(a), 5H and 5J  

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1

Division:

Division 2 General Federal Law

Number of paragraphs:

29

Date of last submission/s:

8 April 2022

Date of hearing:

8 April 2022

Place

Brisbane

Applicants: 

Self-Represented litigants

Solicitor for the First Respondent:

Mills Oakley

Second Respondent:

Submitting appearance save as to costs

ORDERS

MLG 1083 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CFJ17

First Applicant

CFK17

Second Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	13 MAY 2022

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2.The Originating Application for Review filed on 25 May 2017 be dismissed.

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 Egan

Introduction

1. The applicants are citizens of Malaysia who arrived in Australia on 5 August 2015 as the holders of Visitor Visas.

2. On 26 October 2015, the applicants applied for protection visas pursuant to the provisions of s. 65 of the Migration Act 1954 (Cth) (the Act). The male applicant was the primary applicant. The female applicant made application for the visa as a member of the male applicant’s family unit.

3. On 21 March 2016, a delegate of the Minister refused to grant the visa applications.

4. The applicants appeared before the Administrative Appeals Tribunal (the Tribunal) on 27 April 2017 to give evidence and present arguments with the assistance of an interpreter fluent in the Malay and English languages.

5. On 28 April 2017, the Tribunal affirmed the decision of the delegate.

6. At [5] and [6] of its reasons, the Tribunal recorded the criteria required to be met under s. 36(2)(a) of the Act for the grant of a protection visa to a non-citizen.

7. At [7] of its reasons, the Tribunal recorded what constituted a person as a refugee under the provisions of s. 5H(1) of the Act.

8. At [8] of its reasons, the Tribunal recorded what constituted a well-founded fear of persecution under the provisions of s. 5J(1) of the Act.

9. At [9] of its reasons, the Tribunal recorded the criteria required to be met under s. 36(2)(aa) of the Act for satisfaction of the relevant complimentary protection criteria.

10. At [10] of its reasons, the Tribunal recorded that it had had regard to the contents of Ministerial Direction No. 56 made pursuant to the provisions of s. 499 of the Act. 

11. At [11] of its reasons, the Tribunal recorded that the male applicant had declared that he and his wife had left Malaysia to seek protection from the authorities and gang members “ … because he borrowed money for business dealings from a money lender/loan shark and was threatened by the gang members when he was unable to repay the money.”

12. The Tribunal set out the claims of the applicants at [12] of its reasons as follows:

    “[12]In oral evidence to the Tribunal on 27 April 2017, the applicant told the Tribunal he owed a· debt to a loan shark for a loan he took with business partners to establish a tour company in Borneo. The applicant made the following claims.

    •The applicant worked for a tour company in Kola Kinabalu after he left school for about 5 or 6 years. In 2007, the applicant joined with two friends/share partners to set up their own tour company. They needed capital for the business, and the applicant, the smallest shareholder took out a loan for MYR 250,000 (AUD76, 000) at a 6% interest in his name to finance the business on behalf of them all. They could not borrow such a large amount from a bank, so the applicant borrowed from a loan shark, [name withheld], a loan shark with connections in Kota Kinabalu, and the gang, [name withheld] in Sarawak. The applicant no longer has the documents concerning the loan because with they are with the other shareholders.

    •With this loan the partners invested in capital for the business, and put the money into an account in the name of Borneo Holidays Ply. They bought two vans, paying a deposit of 15,000 for each van, and paid monthly instalments of 6,000 for each van; they paid ·rental on the office which cost 2,500 per month, and employed an operational manager, Richard.                   

    •The business did not do well because Richard used the money and his position in the company for his own purposes. For example, when tourists contacted the company via the Tourism Malaysia website, Richard would steal these clients directing them to his own website. Eventually, the partners realised something was going on when they noticed that tourists would book on website and then on the dates of arrival they had cancelled and had used another tour operator. They sacked the employer and took a new office manager.

    •The tour industry was very competitive and in 2009 the applicant had a heated argument with friend because he was worried their funds were being depleted and they could not pay loan shark. The applicant resigned from the company in 2009 because of this disagreement, but the partners agreed to continue to contribute to loan repayments. Later in 2009, they sold the business because they could no longer manage it and ownership was transferred to the new owner.

    •However, loan repayment requirements continued. They had monthly repayments of MYR 15,000 just to service the loan. His share partners assisted him in repayments between 2010 and 2012, each paying 3,000, but in 2012 they left, running out on their promise to help him out, and he lost contact with them.

    •In 2011, the applicant opened he opened an exotic food supply which sold exotic meats, wild boar being the selling item. He continued making loan repayments until 2014, but was unable to repay the MYR15,000.

    •In 2014, the applicant made repayments but less than he had promised the loan shark, MYR 6 - 7,000 per month. He was given warnings by phone and in 2015 he decided he would no longer pick up their calls because he and his wife, who was helping to support them, could not afford to pay the debt.

    •At the end of 2014, people came looking for him but he moved around and avoid them until 15 June 2015, when two people stopped him on the road to [place withheld], broke the windscreen, pulled him out of the car and beat him on the back with a baseball bat. When he fell to the ground, one stepped on his chest; he could _not breathe and thought he was going to die. They gave him a month to pay the loan, and left him lying on the road.

    •The applicant did not make a police report at that time because he was afraid and was not thinking rationally. He went to private clinic and told them he had an accident, and went to his family home in the hills.

    ^•On 25 July, his neighbours in [place withheld] told him that four people in a car had gone to his house and that they carried guns. On 26 July 2015, the applicant made the following report to the police in [name withheld]:¹

    On 15 June 2015, more or less about three o'clock in the afternoon, I was on my way home from Tawau to Kuta Kinabalu following a day's trading that I normally undertake but my car was stopped in the middle in of the [place withheld] road by two men of Chinese origin. They smashed the front of my car and broke the side mirror using a pipe. They then forced me out of the driver's seat and hit me several times on my back and leg. They warned me that if I failed to repay the loan as soon as possible, they will do something that will endanger my life before letting me go. A month after the first incident on 25 July 2015 around 11 o'clock in the morning, four men came to my house in the suburb of [place withheld] carrying fire arms. At that time I was not at home and only knew about the     • incident when my neighbours informed me when "T returned home in the evening. I suspect that they were the henchmen of the loan shark from whom I borrowed money. ·

    •Although the police report stated they used a pipe, the applicant stated this was a mistake in writing the report because they used a baseball bat. The police told the applicant that if people threatened him further he should call them. The applicant did not know who the people were and the police said they could not take any action because it was difficult for them to identify who was involved. The applicant mentioned syndicate name to the police.

    •The applicant cannot rely on his family for support because they are poor. On 5 June 2015, he used a lot of his own money to support his wife's family to rebuild their house after it was damaged in an earthquake on [place withheld]

    •The applicant has only been able to service the interest of the loan and still has the principle owing. He has not been making repayments since departing because they refused smaller payment than what had been agreed and want to kill him. He fears return because the situation is difficult in Sabah because illegal people come across from the Philippines and the gang can just pay someone to kill someone.

    •The applicant could not relocate to another part of Malaysia such as Kuala Lumpur because the applicants do not know anyone and would have to start afresh and that would be very difficult. If he worked in Kuala Lumpur, he could only earn MYR 1,000 per month and he will never be able to earn enough to repay the loan shark. The Red Dog gang have connections in Kuala Lumpur too.

    •The applicant came to Australia in 2015 together with his wife because he was frightened to remain in Malaysia and wanted to earn money. When he first arrived he asked to find a legal way to work in Australia but found out he could not do it, so he lodged a protection visa. In Australia, he went to work on a farm, picking strawberries, and the applicant's spouse also worked. However, neither of the applicants are currently working and rely on assistance from Centrelink. He has a recurring back problem from the beating he received so he cannot lift heavy objects, and the applicant's spouse currently has an injured hand. The applicant asks for more time to save money and repay his loan.”

13. At [32] of its reasons, the Tribunal found that the applicants were not owed protection obligations by Australia, and that they did not satisfy the criterion as set out in s. 36(2)(a) or s. 36(2)(aa) of the Act.

14. On 25 May 2017, the applicants by their lawyers filed an Originating Application for Review of the decision of the Tribunal.

    Grounds of Review

15. At the hearing before the Court, the applicants relied upon an Originating Application for Review filed on 25 May 2017, the grounds of which were as follows:

    “Grounds of application

    1.The Administrative Appeal Tribunal failed to properly consider my application and my arguments.

    2.The Administrative Appeal Tribunal did not properly take into account country information regarding the endemic corruption within Malaysian police authorities and their inability to control loan sharks.

    3.The Administrative Appeal Tribunal did not properly assess the harm I would face were I to return to Malaysia.”

16. Ground 1 of the Application for Review was so lacking in particulars as to be meaningless. There is no merit to such ground.

17. Ground 2 was a claim that the Tribunal did not properly take into account country information “… regarding the endemic corruption within Malaysian police authorities and their inability to control loan sharks.” There is no merit to such ground.

18. The Court accepts the submissions made at paragraph 13 of the first respondent’s written submissions filed on 25 March 2022, which submissions were as follows:

    13.      In Summary, the Tribunal:

    (a) accepted the applicant’s broad factual claims that he had borrowed money from a loan shark and had been unable to repay the loan but found aspects of his evidence were “difficult to believe” and had embellished the amount of the loan for which he was responsible (CB 109, [17]-[23]);

    (b) accepted that an outstanding debt to the loan shark remained for which the applicant was responsible and that the applicant had been assaulted by two men in 2015 in connection with his failure to repay the loan, and that the applicant suspected men associated with the loan came to his home again in 2015 (CB 109, [21]-[24]);

    (c) accepted that the applicant feared harm at the hands of gangsters in the future if he did not repay his loan to the loan shark (CB 109, [24]);

    (d) found the harm feared by the applicant was not for one of the reasons set out in s 5J(1) of the Act and that he accordingly did not have a well-founded fear of persecution (CB 109, [25]);

    (e) had regard to country information about the effectiveness of the Malaysian police force and other state agent in combating illegal money lending and the applicant’s account that he previously sought protection from the Malaysian police to find the applicant could obtain protection from an authority of Malaysia such that there would not be a real risk he will would suffer significant harm from the money lender (CB 110-111, [27]-[29]); and

    (f) accepted that the applicants may face some financial pressures in Malaysia but had regard to country information about the economic situation in Malaysia and did not accept that they would be denied a capacity to subsist or that their financial circumstances would lead to a real chance of serious harm or a real risk of significant harm (CB 111, [30]-[31]). “

19. As to country information, the Tribunal made specific footnote references in its reasons to the DFAT Country Information Report of 19 June 2016, as well as to other contemporaneous news coverage in relation to loan shark operations in Malaysia. At [27] – [29] inclusive of its reasons, the Tribunal found as follows:

    “[27] The Tribunal has taken into account the applicants' circumstances and the country information before it. The Tribunal notes, as accepted above that when the applicant reported an assault against him and his suspicions he was in danger from the gang, the police stated he should contact them if he had any future concerns. The applicant indicated scepticism that the police could protect him because they had not taken action in regard to his report. However, the Tribunal notes the police told the applicant they could not take action because they did not have any indication was responsible. In the circumstances where the applicant was making a report one month after the assault and then in relation to unidentified people seen by his neighbours, police hesitation does not appear inappropriate or to indicate that they will not protect him in the future. The Tribunal notes that on the evidence of the applicant, the police invited the applicant to call them if he had further concerns. In these circumstances, the Tribunal consider the evidence indicates the police will protect the applicant in the future.

    [28] In considering whether the applicant could obtain from the police, protection such that there would not be a real risk that he will suffer harm from the loan shark or anyone else, the Tribunal has also taken into account country before it. As discussed with the applicant, the Tribunal takes into account advice from DFAT in its most recent report that, "credible local and international sources consider the Royal Malaysian Police (RMP) to be a professional and effective police force." ⁴ As also put to the applicant, the Malaysian judicial system also processed cases in accordance with the rule of law in the majority of cases."⁵ The Tribunal acknowledged the existence of corruption in the police force and noted that the government has implemented reforms, including establishing compliance units within the RMP, to counter corruption.⁶ The Tribunal also noted country information, put to the applicant, indicating that law enforcement entities are responsive to complaints about money lenders and are encouraging people to come forward if they are experiencing difficulties with loan sharks.⁷ According to Malaysian Chinese Association (MCA) Head of Public Services and Complaints Department, Datuk Seri Michael Chong, in 2013, that while "police were powerless against loan sharks as the transactions were on a 'willing seller willing buyer' basis", police, "can take action if loan sharks resort to violence or extortion to recover their money".⁸

    [29] In response, the applicant stated that that you can't rely on the police because they can be bribed to close the case, and that the police could not protect him thoroughly because the gang has a broad reach. The Tribunal has considered the applicant's comments but regards the DFAT advice as authoritative about the situation in Malaysia with respect to the police in general, and considers the news reports referred to above indicate a strong police response to crime involving money lenders, such that the applicant will be protected from a real risk of harm due to his loan to the moneylender. On all the evidence before it, the Tribunal is satisfied the applicant could obtain, from an authority of Malaysia, protection such that there would not be a real risk that either he or the applicant's spouse will suffer significant harm.”

20. To the extent that the applicants had claimed that they feared serious retribution from loan sharks or their associates, the Tribunal had clearly considered such claims, finding that, based upon all of the evidence before it, the applicants did not have a well-founded fear of persecution.

21. The Tribunal also found that the applicants could obtain protection from the loan sharks through an appropriate authority in Malaysia, and that there was no real risk that the applicants would suffer significant harm should they be returned to Malaysia.

22. It could not be said that the Tribunal had failed to consider claims that arose squarely on the material before it. As was said by Black CJ, French and Selway JJ in Nabe v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [58], [61] and [68]:

    “[58] The review process is inquisitorial rather than adversarial.  The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.

    …

    [61] In STYB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 705, Selway J questioned whether the comments made by Merkel J in Paramananthan accurately reflected the position. He said (at [15]):

    ‘Whether or not those comments were correct when they were made, they may not now accurately reflect the jurisdiction of this Court.  That jurisdiction is limited to the identification of jurisdictional errors.  The question in this context is whether the Tribunal has made a jurisdictional error in not considering a claim that has not been made.  In my view it does not make a jurisdictional error in such circumstances, providing, of course, that it correctly identifies the legal issues relevant to the claim that is made: contrast the majority and minority reasons in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112.’

    We are of the view that the observations by Merkel J in Paramananthan, by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it.  The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.  

    …

    [68] Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, ‘a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov.  A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made.  The claim must emerge clearly from the materials before the Tribunal.  In our opinion the judgment that the Tribunal, by reason of the error it made about the appellant’s involvement with PLOTE, failed to consider an unexpressed claim of want of effective State protection against persecution by PLOTE, is not open having regard to the thresholds required for such a judgment by the authorities to which we have referred.  This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the Tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the Tribunal.  It did not, however, constitute jurisdictional error in the sense earlier discussed.  It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction”

1. The weight attached to the material relied upon by the Tribunal, when reaching its decision, was a matter for the Tribunal. The Tribunal’s findings were logical and open to it based upon the evidence presented to it. 

2. It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   [131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. 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 has been preferred to another possible conclusion.”

   …

   [135]On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

3. There is no merit to Ground 2 of the Application for Review.

4. As to Ground 3, the Tribunal did consider and assess whether the applicants met the respective criteria under s. 5H and 5J of the Act. The Tribunal assessed whether there was relevantly a well-founded fear of persecution should the applicants be returned to Malaysia, finding that there was none. The Tribunal found that by reason of the male applicant’s business acumen he would not be denied the capacity to subsist, or otherwise face a real risk of significant harm, for economic reasons.

5. The Court accepts the submissions made on behalf of the first respondent to the effect that Ground 3 of the application sought an impermissible merits review. The ground is without merit.

6. The applicants have failed to establish jurisdictional error on the part of the Tribunal.

7. The Originating Application for Review is without merit and is dismissed.

8. The Court will hear the parties as to costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       9 May 2022