CFR23 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 839
•5 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CFR23 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 839
File number: PEG 203 of 2023 Judgment of: JUDGE KENDALL Date of judgment: 5 September 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to afford the applicant procedural fairness – whether the Tribunal was required to put information to the applicant pursuant to s 424A of the Migration Act 1958 (Cth) – whether the Tribunal’s decision was illogical or irrational – whether the Tribunal member was biased – whether the Tribunal relied upon country information which included incorrect or false information – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36, 424, 424A, 425, 425A & 476 and Division 4 of Part 7 Cases cited: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2005] HCA 29
BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
Craig v State of South Australia (1995) 184 CLR 163
CRG16 v Minister for Home Affairs[2019] FCA 374
DAK16 v Minister for Immigration and Border Protection[2019] FCA 68
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC l
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
Singh v Minister for Immigration, Citizenship and Multicultural Affairs[2023] FCA 424
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
WZATI v Minister for Immigration and Border Protection[2015] FCA 923
Division: Division 2 General Federal Law Number of paragraphs: 79 Date of hearing: 13 June 2024 Place: Perth Applicant: Applicant appeared in person Counsel for the First Respondent: Mr B Mayne Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 203 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CFR23
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
5 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration and Multicultural Affairs”.
2.The application 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 KENDALL:
BACKGROUND
The applicant in this matter is a citizen of Malaysia (Court Book (“CB”) 14 & 51). He first arrived in Australia in November 2016 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa (CB 51).
On 14 March 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-37). In that visa application, the applicant claimed that he had left Malaysia because he could not survive in his home country. The applicant explained that he had worked as an assistant lorry driver but that was not enough for him to make his better life or to support his family. He also claimed that he had attempted to find another job but it “was not easy to get a job in Malaysia”. Further, if he returned, he would suffer and become depressed. The applicant also claimed that his family depended on him and that they would also suffer. Finally, the applicant claimed that he could not survive in Malaysia and could not move to another part of the country as “everywhere had economic and political issues” (CB 32-33).
On 6 September 2017, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 51-59). The delegate relied on country information which indicated that the economic climate in Malaysia would not lead to the applicant facing “significant harm” (CB 53).
On 20 September 2017, the applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 60-61).
On 24 November 2022, the Tribunal wrote to the applicant inviting him to provide further information (pursuant to s 424 of the Migration Act 1958 (Cth) (the “Act”)) by 8 December 2023 (CB 65-67).
On 7 December 2022, the applicant provided a copy of the completed “Applicant information form (s.424(2) response)” document to the Tribunal (by email) (CB 68-73).
On 26 June 2023, the Tribunal requested that the applicant complete a pre-hearing information form via a link which was provided to him (via email) (CB 75).
On 4 July 2023, the applicant returned the completed pre-hearing information form to the Tribunal (via email) (CB 80-85). In that completed form, the applicant provided the following additional information (without alteration) (CB 84):
Yes there is so much more reason as why I am afraid to go back to my country. As the years goes by the economy in my country is getting worse. The living cost is out of mind. If I go back to my country I would not be able to afford and raise my family. As I already got married and have a daughter, I plan to send my daughter to school here in Australia, as Australia has a better education level. This country is really clean it can protect me and my family from any disease. If I go back to my country, I would not afford to rent a house and raise my family, as the rent minimum costs is 1200 per month while the lowest basic salary I can get only 1600 per month. My wife pregnant with my second baby now. We hope we can further our stay in here so I can give you a better life for my family.
On 28 July 2023, the applicant was invited to attend a Tribunal hearing scheduled for 1 September 2023 (CB 87-92).
The applicant attended that hearing, which was conducted as a joint hearing for both the applicant and his wife (who had submitted a separate Tribunal review application) (CB 99-104 & 108).
On 8 September 2023, the Tribunal affirmed the decision refusing to grant the applicant the visa (CB 107-120).
The Tribunal had previously (on 6 September 2023) affirmed the delegate’s decision refusing to grant the applicant’s wife’s visa application.
As far as this Court is aware, the applicant’s wife has not made an application for judicial review of the decision to refuse her application.
On 13 February 2023, the applicant lodged an application for judicial review in this Court. That application seeks review of the Tribunal’s decision pursuant to s 476 of the Act.
THE TRIBUNAL’S DECISION
To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error. It is thus useful to outline the Tribunal’s decision in some detail.
The Tribunal’s decision in this matter is 14 pages long and spans 76 paragraphs (CB 107-120). The final three pages include extracts of relevant legislative provisions (CB 118-120).
The Tribunal began by explaining that the applicant had applied for the visa the subject of the review on 14 March 2017 and that the Minister’s delegate had refused to grant the applicant the visa on the basis that the delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under s 36(2(a) or s 36(2)(aa) of the Act. The Tribunal confirmed that a hearing had taken place on 1 September 2023 and that evidence had been received from both the applicant and his wife. The Tribunal confirmed that the applicant and his wife has consented to a joint hearing for both his application and the separate application relating to his wife (at [1]-[4]).
The Tribunal outlined the applicant’s protection claims included in his visa application and detailed the further information the applicant had provided in response to requests for information from the Tribunal (at [12]-[24]).
The Tribunal also set out the oral evidence given by the applicant at the hearing before it (at [25]-[48]).
The Tribunal noted that the applicant gave evidence that:
(a)he had always lived in his family home in Malaysia prior to his departure for Australia;
(b)his father, a retired solder, had passed away;
(c)his mother, a former factory worker, was still alive;
(d)he had eight siblings all of whom were adults; and
(e)he had completed high school although he could not recall when he had finished (at [26]-[27]).
The Tribunal also explained that the applicant had given evidence that he had worked in various jobs in Malaysia (including in hospitality, retail and factory work) but had not been an assistant lorry driver in Malaysia (as claimed in his application). Further, the applicant gave evidence that he had paid his friend $100 to complete “the form” for him and this friend had included the incorrect information (possibly as a result of a misunderstanding) (at [28]-[30]).
When asked by the Tribunal why he chose to come to Australia, the applicant answered that he came to Australia to earn a better living so that he could give his family a better life (at [34]).
The Tribunal noted that the applicant also gave evidence that he chose to remain unlawfully in Australia after his visitor visa had expired because he wanted to work in Australia. He also added that he sometimes worked whilst he was still on his visitor visa, which he acknowledged did not permit him to work (at [36]).
The Tribunal explained that the applicant had claimed that he wanted to raise his children in Australia and send them to school in Australia because the education system was better. The Tribunal also explained to the applicant that this desire might not necessarily entitle him to protection and the applicant responded that he understood this. The applicant stated that he felt he would not be able to support his family in Malaysia as he did not own a house there (at [41]-[42]).
The Tribunal accepted, as a basic premise, that people such as the applicant may not be able to earn as much money from equivalent employment in Malaysia as they may be able to earn in Australia. However, it found that the applicant had provided inconsistent evidence about his past employment in Malaysia. The Tribunal explained that it would expect the applicant to be able to provide consistent evidence about his employment history in Malaysia and did not accept his explanation that his friend had completed the form and had made a mistake (at[52]-[54]).
Given the inconsistent evidence provided by the applicant, the Tribunal found that he had not been a witness of truth in relation to his employment history in Malaysia and that his evidence lacked credibility. Based on this finding, the Tribunal did not accept that the applicant was ever employed in a job in the past in Malaysia that was so low paying that he was not able to support himself and his family. Accordingly, the Tribunal also did not accept that this caused the applicant any depression or mental suffering (at [55]).
The Tribunal then referred to country information from the Department of Foreign Affairs and Trade (“DFAT”) (in particular, the DFAT Country Information Report Malaysia, 29 June 2021 (the “DFAT Report”)). The Tribunal accepted that if he returned to Malaysia, the applicant may not be able to earn as much income from employment as he was currently earning in Australia. However, the very strong labour market in Malaysia indicated that the applicant would be able to obtain some form of employment that would provide him with sufficient income to sustain himself and his family (at [58]-[62]).
The Tribunal found that if the applicant returned to Malaysia now or in the reasonably foreseeable future, he would be able to obtain employment and that the income from his employment would enable him to provide for himself and his family. In that context, the Tribunal determined that the applicant’s economic circumstances resulting from a lower income generated from his employment in Malaysia would not threaten the applicant’s capacity or that of his family to subsist or otherwise amount to any form of harm. Furthermore, the Tribunal was not satisfied that if the applicant returned to Malaysia now or in the reasonably foreseeable future there was a real chance he would suffer any depression or mental health problems because of any claimed inability to sustain himself and his family (at [63]-[65]).
Overall, the Tribunal found that the applicant was not a person in respect of whom Australia had protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act (at [68]-[69]).
On the basis of the above, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (at [76]).
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 13 September 2023 contains two grounds of review as follows (without alteration):
1.The decision maker’s decision has a jurisdictional error.
2.The decision maker’s statement about the applicant not facing harm when returned to Malaysia is purely based on his/her personal opinion and not on any facts.
The applicant filed an affidavit with that judicial review application (on 13 September 2023). The affidavit annexed a copy of the Tribunal’s decision and repeated his grounds of review (as outlined above).
On 24 November 2023, procedural orders were made by Registrar Downing of this Court giving the applicant an opportunity to file any amended application, written submissions and any further evidence. Unfortunately, no further information was provided by or on behalf of the applicant.
The applicant appeared before this Court (on 13 June 2024) without legal representation but with the assistance of a Malay interpreter. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 13 September 2023 (the affidavit being taken as read and in evidence at the hearing on 13 June 2024), a Court Book numbering 125 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 28 May 2024.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court also explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, it was stressed that they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”) at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”). Importantly, the Court cannot grant the applicant the visa that he now seeks even if the Court disagrees with the Tribunal’s ultimate findings. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Against this background, the applicant asked the Court if he could “hand up documents” explaining what he thought the Court “did wrong”. The Court reviewed the materials (containing written submissions, a media article relating to Malaysia and a copy of the delegate’s decision (dated 6 September 2017)). The materials provided by the applicant to the Court were tendered (together) and referenced as Exhibit 2.
The applicant was asked if there was anything further he wanted to bring to the attention of the Court. The applicant told the Court that there was nothing further that he wished to say and indicated that he wished to rely on the materials contained in Exhibit 2.
The materials contained in Exhibit 2, to the extent that they raise any issue of jurisdictional error, will be addressed by the Court below.
CONSIDERATION
Grounds of review
Ground one
As outlined above, ground one states:
1.The decision maker’s decision has a jurisdictional error.
Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant’s ground as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392). Subject to what is set out below, a bare assertion that there is jurisdictional error without any additional particularisation or clarification is inherently difficult to establish. Nevertheless, the Court has reviewed the Tribunal’s decision to ascertain whether any of the common species of jurisdictional error set out above at [37] arise.
The Minister submitted that this ground, at its highest, does no more than express disagreement and dissatisfaction with, and seeks impermissible merits review of, the Tribunal’s decision (relying upon Wu Shan Liang and NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [10]).
It is, of course, entirely understandable that unrepresented applicants will often express their disagreement with the Tribunal decision in relatively simple terms. Furthermore, the fact that the applicant here has only asserted jurisdictional error on the part of the Tribunal does not lead inexorably to a conclusion that they are chasing impermissible merits review. An unrepresented applicant may very well believe there is something wrong with a decision even if they are not able to properly articulate what that error might be. Where “jurisdictional error” is asserted in a matter involving a protection visa, even absent further clarification, it is consistent with the authorities and the administration of justice for this Court to review the Tribunal decision for obvious jurisdictional error.
In this respect, the Court is grateful for the helpful submissions of the Minister which addressed ground one consistently with the approach set out above.
The Minister correctly submitted that the Tribunal was not required to accept the applicant’s claims uncritically or look for rebutting evidence before holding that an assertion was not made out: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70. It was a matter for the Tribunal to determine what weight to give the applicant’s evidence: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48.
The Minister also submitted that the Tribunal’s findings that the applicant did not meet s 36(2)(a) or s 36(2)(aa) of the Act were based on rational reasons that were arrived at after careful consideration of matters that were logically probative: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (“CQG15”); Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (“Kopalapillai”) and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC l (“DAO16”). The Minister further submitted that it could not be said that no other rational or logical decision maker could have drawn the same conclusion: SZMDS.
Additionally, the Minister submitted that the Tribunal complied with its procedural fairness obligations set out in Division 4 of Part 7 of the Act. In this sense, the Tribunal properly invited the applicant to attend a hearing in accordance with s 425 and s 425A of the Act, (which he attended on 1 September 2023) (CB 87-92 & 99-104). The applicant was given a sufficient opportunity to provide evidence to support his claims in circumstances where the Tribunal had exercised its discretion under s 424(2) of the Act and invited him in writing to give information, relevantly to add to or update his protection claims (CB 65-67). While the applicant responded to this request on 7 December 2022, he did not provide any information or documents about his claims, nor did he provide any documents at the Tribunal hearing (CB 69-73). The applicant was given a further opportunity to provide evidence and claims and did so by way of a hand-written response in the pre-hearing information form returned to the Tribunal on 2 July 2023 (CB 81-85). That response was considered by the Tribunal (CB 110 at [23]).
Finally, the Minister submitted that there was no information that the Tribunal was required to put to the applicant under s 424A of the Act. The Tribunal’s decision was based on the applicant’s written claims to the Department, his oral evidence at the hearing and the country information before it. These fell within the exceptions set out in ss 424A(b), (ba) and (a) of the Act respectively.
The Court accepts the Minister’s submissions in respect of this ground.
The Tribunal’s decision reveals that it understood the relevant task before it. It considered all of the claims made by the applicant and all of the evidence given by the applicant in support of those claims. Where it had concerns, those concerns were put to the applicant and the applicant’s responses were considered. All of the matters considered by the Tribunal, including the country information it relied upon, were clearly relevant and there is no evidence that it failed to consider relevant material.
The Court is satisfied that the Tribunal’s findings in this matter were based on rational reasons that were arrived at on consideration of matters that were logically probative: CQG15; Kopalapillai and DAO16. Further, it cannot be said that no other rational or logical decision maker could have drawn the same conclusion or arrived at the same decision: SZMDS.
No jurisdictional error arises in relation to ground one.
Ground two
Ground two provides as follows:
2.The decision maker’s statement about the applicant not facing harm when returned to Malaysia is purely based on his/her personal opinion and not on any facts.
The Minister submitted that, insofar as this ground is an allegation of bias, it is well-established that an allegation of bias is a serious allegation which must be firmly and distinctly made and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 (“Jia Legeng”) at [127].
In this respect, the Minister submitted that the applicant had not provided any evidence suggesting 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: Jia Legeng at [35] & [72]. Furthermore, the Minister contended that the Tribunal did consider “facts” by way of its detailed consideration of country information, which were discussed with the applicant at the hearing (CB 113-114 [44]-[45] & [58]-[60]).
The Court agrees that this ground on its face could be construed as alleging the Tribunal member was biased in the sense of bringing a closed mind to the applicant’s matter.
As correctly noted by the Minister, it is well established that any allegation of bias is one that must be distinctly made and clearly proven.
To prove bias, it is for the applicant to establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Jia Legeng at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person might reasonably believe that the Tribunal might not have brought an impartial mind to deciding the applicant’s case: SZRUI at [2] and Singh v Minister for Immigration, Citizenship and Multicultural Affairs[2023] FCA 424 at [32].
There is nothing in the Court Book or the materials before this Court to suggest that the Tribunal was not open to persuasion in this case. Equally, there is nothing in the Court Book or the materials before this Court to suggest that the Tribunal did not bring an impartial mind to deciding the applicant’s case.
The Tribunal invited the applicant to attend a hearing, gave the applicant an opportunity to provide additional documents or information before the hearing and considered that evidence. The Tribunal asked questions of the applicant and assessed his responses when considering his protection claims and credibility.
The Tribunal assessed the information before it including the information provided by the applicant in his visa application, the additional information provided by the applicant prior to the hearing and the applicant’s oral evidence at the Tribunal hearing. As correctly submitted by the Minister, the Tribunal relied heavily on recent and credible country information principally sourced from DFAT.
To the extent that ground two can be construed as an allegation of either actual or apprehended bias, the Court finds that this is not made out.
Having regard to the written submissions and media article handed up by the applicant at the hearing (and marked as Exhibit 2), this ground may also be construed as suggesting that the country information relied upon by the Tribunal was incorrect.
This issue is addressed by the Court below.
Materials provided at hearing (Exhibit 2)
As explained above, the documents contained in Exhibit 2 comprised of “written submissions”, a media article in relation to Malaysia and a copy of the delegate’s decision.
The Court will address each of those documents in turn below.
After setting out some brief biographical and historical information the written submissions relied upon by the applicant provide as follows:
4.0 Gist of my reason for applying for a Protection Visa
4.1I was mentally stressed because of the hard life that I was facing in Malaysia.
4.2 The economy was very bad and the politician are corrupt.
4.3 On the 19th of November 2016 I took a flight to Melbourne.
5.0 Protection Visa Decision Record
5.1The Protection Visa Decision Record is attached to this Written Submissions.
5.2 Economic Hardship in Malaysia
Below is an extract from the Protection Visa Decision about Malaysia's economy.
“Malaysia is an upper-middle income country in which absolute poverty has been largely eradicated. Malaysia recorded average annual economic growth of more than 7 per cent between 1967 and 1997, while growth in recent years has continued to exceed 5 per cent.25 Economic growth has been inclusive, with less than p1e r cent of the population living in extreme poverty.26 Rates of poverty are low among Malays (0.8 per cent), Chinese (0.p1e r cent), and Indians (0.6 per cent), although the poverty rate is higher in rural areas than in cities.27 Malaysian authorities have turned their attention to reducing income inequality - which remains high in comparison to other East Asian countries, but is gradually declining - and addressing the well-being of the poorest 40 per cent of the population, who remain vulnerable to increases in the cost of living or economic shocks.28 The UNDP's Human Development Index ranked Malaysia 57 out of 189 countries in 2017, placing it in the 'high human development' category.”
5.3 Immi’s Assessment
This an extract of the assessment -
“I find that the claimed harm is not significant harm within thmee aning of s36(2A) of the Act. Accordingly, I am not satisfied there is a real risk the applicant will suffer significant harm on their return to Malaysia.”
6.0 Application - Migration Act
6.1I filed for a judicial review for the refusal of my Protection Visa application in the Federal Circuit Court and my documents were accepted for filing.
6.2 Grounds Of Application
6.2.1The decision maker's statement about the applicant not facing; harm when returned to Malaysia is purely based on his/her personal opinion and not on any facts.
7.0 Additional Matters For Grounds Of Application
7.1Immi has used a fact about the economy and level of poverty in Malaysia that has been proved to be false.
7.2A report about the false data on the economy and level of poverty by a United Nations expert is attached to this Written Submissions. The report proves that Malaysia has supplied false data.
8.0 My Grounds Of Application
8.1The Immi’s officer who made the decision commented that I will not face harm when returned to Malaysia. I quote, “Accordingly, I am not satisfied there is a real risk the applicant will suffer significant harm on their return to Malaysia.”
The office made the decision based on hois personal opinion and not based on any facts.
8.2 False Data On The Economy And Level Of Poverty In Malaysia.
Attached to this Written Submissions is a copy of the news release of the above report by a UN expert on Human Rights.
9.0 Conclusion
9.1I urged the court to expulse the Immi’s Protection Visa Decision Record based on it using false data provided by the government of Malaysia and grant a favourable decision on my judicial review.
The Minister did not object to these documents being before the Court. However, the Minister submitted that the written submissions did not go any further than to seek impermissible merits review of the Tribunal’s decision and otherwise repeat the grounds set out in the application for judicial review.
The Court considers that the sole issue raised by the applicant through Exhibit 2 is an allegation that the Tribunal relied upon country information which included incorrect or false information in respect of the Malaysian economy and level of poverty. The media article handed up by the applicant was relied upon in support of this argument.
In terms of the media article, the Minister submitted that no weight should be afforded to it as it was not before the Tribunal. Accordingly, the Minister submitted, nothing in this article could establish jurisdictional error in the Tribunal’s decision.
The Court observes that there is no indication of the author of the media article or from where it has been sourced. Nevertheless, the Court does not dispute that the article is genuine. The difficulty for the applicant here is that, as correctly submitted by the Minister, there is no evidence before the Court to suggest that the media article, or the information contained within the media article, was before the Tribunal. Furthermore, the Tribunal squarely raised the information from the DFAT Report with the applicant at the hearing (at [44]) and there is no evidence that the applicant either disagreed with that country information or sought an opportunity to place contrary country information before the Tribunal. It is generally not open to the Court, on a judicial review application, to consider material which was not before the relevant administrative decision-maker: WZATI v Minister for Immigration and Border Protection[2015] FCA 923 at [70] per Barker J. That principle applies here.
To the extent that the applicant is suggesting that the country information relied on was “incorrect” or that “other country information” should have been referenced, the Court again disagrees. As previously explained by this Court, it is well established that the choice of country information, the weight afforded to country information and any consideration regarding the accuracy of country information is a matter for the decision-maker: NAHI at [11]-[13]; DAK16 v Minister for Immigration and Border Protection[2019] FCA 68 at [27] and CRG16 v Minister for Home Affairs[2019] FCA 374 at [56]. Further, this Court would be engaging in an impermissible merits review if it made its own assessment of country information: NAHI. The choice and interpretation of country information is also a factual matter for the Tribunal alone: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2005] HCA 29 and NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419.
The Court observes that the DFAT report relied upon by the Tribunal is more recent than the media article handed up by the applicant. There is no error in the Tribunal relying upon information in the DFAT report. To the extent that there may have been competing, albeit less recent, country information, that information was simply not before the Tribunal. No jurisdictional error arises.
In respect of the delegate’s decision, as this is already before the Court in the Court Book (at CB 51-59) there is no need for this to be accepted into evidence. In any event, while the Court has had regard to the delegate’s decision as part of the contextual background, the salient issue before the Court is whether the decision of the Tribunal contains jurisdictional error.
The Court finds that there is nothing raised in Exhibit 2 which is indicative of jurisdictional error.
CONCLUSION
The application for judicial review, supporting affidavit and additional evidence provided by the applicant in Exhibit 2 have failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error on the part of the Tribunal.
The application is, accordingly, dismissed.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 5 September 2024
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