CFQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 369

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFQ18 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2020] FCCA 369

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal’s findings were open to it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 474

Cases cited:

AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259

Applicant: CFQ18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1237 of 2018

Judgment of: Judge Emmett

Hearing date: 24 February 2020

Date of Last Submission: 24 February 2020

Delivered at: Sydney

Delivered on: 24 February 2020

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Solicitor for the Respondents: Ms Bernadette Rayment
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1237 of 2018

CFQ18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application filed on 2 May 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 20 April 2018 (“the Tribunal”). That decision affirmed a decision of a delegate of the first respondent (“the Delegate”) to refuse the applicant a Protection (Class XA) visa (“Protection Visa”) on the basis that the applicant was not a person to whom Australia has protection obligations.

2. The background of this matter, the applicant’s claims and the Tribunal decision record are accurately summarised in the submissions of the first respondent as follows:

   “2. On 27 September 2016, the applicant, a citizen of Malaysia, arrived in Australia as the holder of a Subclass 601 (Electronic Travel Authority) visa (Court Book (CB) 55). On 22 December 2016, the applicant applied for a protection visa (CB 1-37). On 6 March 2017, a delegate refused the application (CB 55-61).

   3. On 31 March 2017, the applicant applied to the Tribunal for review (CB 67-68). On 24 November 2017, the applicant appeared at the hearing before the Tribunal (CB 86-89). On 20 April 2018, the Tribunal affirmed the decision under review (CB 92-95).

   Applicant's claims

   4. The applicant's claims for protection were set out in his visa application form and may be summarised as follows (CB 32-34):

   4.1 The applicant would be injured and killed by Islamic fundamentalists because he supported his friend who protested against the practice of Islam.

   4.2 The applicant was attacked and threatened for supporting his friend. The police ignored the applicant's report of the threats and he was denied the opportunity to write an investigation report.

   4.3 When the applicant realised that the police and authorities were working together, he left the country.

   4.4 The applicant was on a "black list" to all of the Islamic fundamentalist organisations in Malaysia. Some of his friends were falsely accused and were languishing in jail.

   4.5 The applicant could not relocate because the Malaysian Government was not impartial and did not enforce the law.

   5. At the hearing before the Tribunal, the applicant stated that his reasons for seeking protection were false, that he was not a refugee and not owed complementary protection, and that he wanted to remain in Australia to financially support his family in Malaysia (CB 94, [9]).

   6. The applicant claimed that he would face difficulties if he returned to Malaysia. He claimed that he was the eldest child and was financially responsible for his family in Malaysia. The applicant further claimed that his father was sick and unemployed, that his mother did not work, that he had three younger siblings in school and that he wanted to stay in Australia so he could pay off his father's debts (CB 94, [12]).

   Tribunal decision

   7. The Tribunal set out the procedural background to the matter (CB 93-94, [1]-[8]). The Tribunal recorded that at the hearing the applicant stated that the reasons for claiming protection in his application were false (CB 94, [9]). The Tribunal found that the applicant did not face harm in Malaysia for the reasons given in his protection visa application on the basis that he had no knowledge of those claims and had stated that they were false (CB 95, [14]).

   8. The Tribunal set out the applicant's claims made at the hearing (CB 94, [12]). The Tribunal found that the applicant's economic claims did not amount to persecution for one or more of the reasons specified in s.5J(1) of the Act, nor did they amount to significant harm as defined in s.36(2A) (CB 95, [15]). The Tribunal found that the applicant did not face persecution in Malaysia for any of the reasons outlined in s.5J, and therefore was not a refugee for the purposes of s.5H. Accordingly, the Tribunal found that the applicant did not satisfy s.36(2)(a) of the Act (CB 95, [16]).

   9. On the basis of its anterior findings, the Tribunal was not satisfied that the applicant's circumstances engaged Australia's protection obligations under s.36(2)(aa) of the Act (CB 95, [17]).

   10. The Tribunal found that there was no suggestion that the applicant satisfied the criterion in s.36(2) and accordingly, affirmed the decision under review (CB 95, [18]-[19]).”

3. The applicant was unrepresented before the Court this morning, although had the assistance of a Malaysian interpreter. The applicant confirmed that he had attended a directions hearing before a registrar of this Court on 24 May 2018. On that occasion, the applicant had been given leave to file an amended application and any further evidence.  The applicant was also provided at that directions hearing with the contact details of legal services providers and translating and interpreting services.

4. The matter was set down for callover on 7 November 2019 and on that occasion, the applicant was directed to file and serve submissions in support of his application and the matter was set down for hearing today before me.

5. The applicant confirmed to the Court that he had not filed any documents, either in accordance with those directions or otherwise, and had no further documents to provide to the Court this morning. The applicant confirmed that he relied on the grounds contained in an Application, filed on 2 May 2018, as follows:

   “1. The applicant has well founded fear of persecution. The applicant support for a friend who “led an agitation against the evils and bad practises of Islam.” The applicant cease to be involved in the practise of the applicant faith. The applicant faces serious harm of significant economic hardships that threatens the person’s capacity to subsist. Denial of capacity to earn a livelihood, denial threatens the applicant’s capacity to subsist.

   The applicant is the eldest child. He I financially responsible for his family in Malaysia because his father was jobless due to illness. The applicant mother did not work and he had three younger siblings in school. The applicant deeply and numbly seeking for pardon and also humbly seeking The Federal Circuit Court of Australia on humanitarian for grounds and for the sake of justice. The applicant deeply and humbly appreciating and acknowledges The Australian Values of Fairness and The Great Australian People. Myself believe that education is the best solution to stands out from the life hardship and be the beneficial human being to the society and country.

   Finally Myself, again seeking pardon and humbly and deeply requesting The Great Australian Government to re review my judicial review application on the Constituition base. Myself greatly appreciates and acknowledges Federal Circuit Court of Australia. Myself praise The Lord for his blessings and protection with Guidance bestowed upon us all human being. Thank You Very Much. God bless us. Amen.”

   (Errors in original)

6. The grounds of the applicant’s application were interpreted for him.

7. Before inviting the applicant to say whatever he wished in support of his application, I explained to the applicant that the role of this Court is very different to that of the Tribunal and that it is not for this Court to reconsider his claims and make different factual findings or reach different conclusions. I explained that the only issue before this Court is whether or not the decision of the Tribunal is made according to law.  I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

8. The applicant had no submissions to make in support of his application. 

9. The grounds of the application essentially assert that the claims made to the Tribunal were false and otherwise assert that the applicant faces serious harm of significant economic hardship threatening his capacity to subsist. In relation to the complaint in the grounds to that effect, no such claim was made either to the Delegate or to the Tribunal.

10. Before the Delegate, the applicant maintained the claims from which he resiled before the Tribunal. They were to the effect that the applicant was at risk of harm from Islamic fundamentalists in Malaysia because he had supported a friend who protested against Islam and had been attacked and threatened for supporting his friend and that the police had refused to investigate. The applicant also claimed before the Delegate that he was on a black list of all of the Islamic fundamentalist organisations in Malaysia and, for that reason, could not relocate within Malaysia.

11. The applicant did not in fact attend the interview with the Delegate. The Delegate found that the applicant had not provided any information in regard to any of the circumstances of his claims.

12. The Delegate accepted that high profile critics of Islam may, in some circumstances, be of interest to the authorities, but was not satisfied on the material and evidence before it that the applicant was such a person, or had a high profile, or that there was a substantial basis upon which a finding of well-founded fear could be made out.

13. The applicant attended the hearing before the Tribunal and the Tribunal stated that:

    “At the beginning of the hearing, the applicant immediately informed me that the reasons given in his protection visa application for seeking protection were all lies.” (Emphasis added)

14. The Tribunal noted that the applicant said that his Protection Visa claims had been written by a person trying to help him. The Tribunal asked the applicant if he believed he was a refugee or owed complementary protection, given the claims in his application were false. The Tribunal noted the applicant’s response that he did not.

15. The Tribunal noted that the applicant said he would face difficulties if returned to Malaysia because, as the eldest child, he was financially responsible for his family in Malaysia because his father was jobless due to illness, his mother did not work, and he had three younger siblings in school. The Tribunal noted that it put to the applicant that this did not appear to amount to persecution for reasons of race, religion, nationality or membership of a particular social group or political opinion; nor, did it amount to significant harm, and therefore the applicant did not appear to meet the refugee criteria or the complementary criterion.

16. The Tribunal noted that the applicant responded that he requested to be permitted to remain in Australia until his siblings completed school and he could pay off his father’s debts.

17. The Tribunal found that the applicant is a national of Malaysia. On the basis of the applicant stating that his original claims were false, the Tribunal found that the applicant did not face harm in Malaysia for the reasons given in his Protection Visa application.

18. The Tribunal then considered the applicant’s reasons for seeking protection, being that he was financially responsible for supporting his family in Malaysia, and he wished to remain in Australia until his siblings had completed school and he has paid off his father’s debt. The Tribunal found those matters did not amount to persecution for one of the reasons specified in s.5J(1) of the Migration Act 1958 (Cth) (“the Act”). Nor did those matters amount to significant harm as defined in s.36(2A) of the Act. The Tribunal concluded that the applicant did not meet the protection criteria in s.36(2)(a) of the Act.

19. The Tribunal considered whether the applicant met the complementary criterion in s.36(2)(aa) of the Act. However, the Tribunal found that as the applicant does not face significant harm in Malaysia, as defined in s.36(2A) of the Act, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real chance he would suffer significant harm, if returned. Accordingly, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations and confirmed the decision under review.

20. The grounds upon which the applicant seeks judicial review before this Court, other than a restatement of the applicant’s request to stay in Australia, assert that the applicant faces serious harm and significant economic hardship, threatening his capacity to subsist.

21. The applicant made no such claim in those terms before the Tribunal. Nor did any such claim arise squarely on the material before the Tribunal (AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18] per Collier, McKerracher and Banks-Smith JJ). The Tribunal considered the applicant’s economic claims and found they did not amount either to persecution, or serious or significant harm, such that the applicant would be entitled to protection.

22. The Tribunal accepted the applicant’s statement that the grounds of his protection visa application were “all lies” and that he no longer relied on them. In those circumstances, it was logical and rational for the Tribunal to find the applicant did not face harm in Malaysia for those reasons.

23. The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave. They were based on rational grounds and arrived at after considering those factors that were logically probative of the issues before it. The Tribunal’s findings were not tainted by any failure to afford procedural fairness and were not without an intelligible justification (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

24. The Tribunal complied with the statutory regime, inviting the applicant to attend the hearing before it to give evidence and present arguments relating to the issues in his case. The applicant did not provide any further material to the Tribunal, despite having been informed by the Tribunal by letter, dated 24 October 2017, that the Tribunal had considered the material before it, but was unable to make a favourable decision on that information alone. The applicant had been invited to send to the Tribunal any further material that it wished the Tribunal to consider.

25. The Tribunal acceded to a request by the applicant that he attend the hearing before it by video link in Griffith. Otherwise, the Tribunal’s decision record makes clear that the Tribunal referred to the relevant statutory regime in considering the applicant’s claims, including consideration of Ministerial Direction Number 56. The Tribunal then had regard to the information in the applicant’s Protection Visa application and the fact that the applicant now claimed that information was false.

26. As stated above, the Tribunal did accept that the applicant was a national of Malaysia, based on his passport.

27. The applicant’s complaints to this Court are more in the nature of a disagreement with the Tribunal’s refusal to grant him protection, thereby seeking merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54] per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

28. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant and put to the applicant concerns it had about those claims. The Tribunal then made findings, based on the evidence and material before it, which were open to it for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

29. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

30. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

31. The proceeding before this Court should be dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  2 March 2020