CFX18 v Minister for Immigration

[2019] FCCA 2230

FEDERAL CIRCUIT COURT OF AUSTRALIA

CFX18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2230

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal made a legal error – whether the Tribunal made a decision without solid proof – whether the Tribunal made a jurisdictional error – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s,36.

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR

611

Applicant: CFX18

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1238 of 2018

Judgment of: Judge Humphreys

Hearing date: 14 August 2019

Date of Last Submission: 14 August 2019

Delivered at: Parramatta

Delivered on: 14 August 2019

REPRESENTATION

Applicant appeared in person.

Solicitors for the Respondents: Ms Noakesmith, DLA Piper

ORDERS

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

2. The application is dismissed.

3. The Applicant to pay the First Respondent’s costs fixed in the amount of $3,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1238 of 2018

CFX18

Applicant

And

MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from Transcript)

Introduction

1. The applicant is a citizen of Malaysia. The applicant arrived in Australia as the holder of an Electronic Travel Authority visa on 11 February 2017. The applicant applied for a Protection (Class XA) visa on 28 April 2017. On 8 August 2017, a delegate of the Minister for Immigration and Border Protection (“the Minister”) refused the visa. The applicant then sought merits review with the Administrative Appeals Tribunal (“the Tribunal”). On 6 April 2018, the Tribunal affirmed the decision of the Minister to refuse the applicant a Protection (Class XA) visa. The applicant now seeks judicial review of the Tribunal’s decision in this Court.

Administrative Appeals Tribunal Decision

1. The applicant’s claims are set out in paragraph 7 of the Tribunal’s decision. The applicant claims to have had a relationship with the daughter of a former employer. The applicant fears that the father of his ex-girlfriend, her brother or hired agents will harm him because his relationship with the ex-employer’s daughter broke down and he is unable to pay a large sum of money that he borrowed from the father to spend on his ex-girlfriend. At paragraphs 8 to 14 of the decision, the Tribunal deals with the general background of the applicant.

2. At paragraph 12 of the decision, the Tribunal notes that after the applicant split with his ex-girlfriend, he lived in Kuala Lumpur for 12 months prior to coming to Australia. At paragraph 19 of the decision, the Tribunal notes that the need for the applicant to work in Australia to earn money to repay his alleged debt, was a key feature of his case. The applicant told the Tribunal he was fearful that if returned to Malaysia, he would be forced to marry his ex-girlfriend or that he would be seriously injured by her brother. At paragraph 20 of the decision, the Tribunal concluded that much of the evidence of the applicant was vague and unsupported by corroborative evidence.

3. The Tribunal doubted the truthfulness of the applicant’s account. At paragraphs 22 to 30 of the decision, the Tribunal deals with the claimed relationship with the applicant’s ex-employer’s daughter. At paragraph 30 of the decision, the Tribunal accepts that the applicant had a close relationship with a woman in Tanah Merah, his home village, but the relationship had petered out by the time he moved to Kuala Lumpur. The Tribunal notes the applicant’s evidence that his ex-girlfriend has since married another man. At paragraphs 31 to 34 of the decision, the Tribunal deals with the purported loans made to the applicant by the ex-employer’s daughter.

4. At paragraph 34 of the decision, the Tribunal accepted the applicant had some debts, but did not accept that the applicant was indebted to his ex-girlfriend’s father for money to spend on his ex-girlfriend. At paragraphs 35 to 52 of the decision, the Tribunal deals with the applicant’s claimed pursuit of him by the ex-girlfriend’s family. It notes that the applicant did not seek police protection. The Tribunal rejected the applicant’s claims of an ambush in Kuala Lumpur in 2016 or that there was any linkage to his ex-girlfriend’s family. At paragraph 52 of the decision, the Tribunal rejects the claims that the applicant has to remain in Australia to repay money owing to his ex-girlfriend’s family.

5. The Tribunal rejects that the applicant needs to remain in Australia to avoid serious and significant harm from his ex-girlfriend’s family. At paragraph 53 of the decision is a summary of the Tribunal’s findings. It rejects all associated claims in regards to the ex-girlfriend and her family and finds that the applicant departed Malaysia for unrelated reasons, probably to come to Australia to earn money and pay off other debts.

6. At paragraphs 54 to 64 of the decision, the Tribunal summarises the applicant’s claims with reference to the requirements under s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth) (“ the Act”).

7. The Tribunal concludes that the applicant is not entitled to a Protection (Class XA) visa based on the criteria outlined in the legislation in relation to either a protection visa or a protection visa under the complimentary protection provisions.

Grounds of Appeal

1. Three grounds of appeal are set out in the application to the Court. They are set out as follows:

   1.   The decision is effected by error of law.

   2.   The decision was made without solid proof.

   3.   It is requested to sent my application to Administrative Appeals Tribunal for consideration.

   (As written in originating application)

The Applicant’s Submissions

1. No written submissions were filed by the applicant. The applicant appeared before the hearing unrepresented but with the assistance of an interpreter. The applicant was invited if he had anything he wished to say to the Court on a number of occasions and finally told the Court that he conceded he was in difficulty because he did not have sufficient proof.

The First Respondent’s Submissions

1. Ms Noakesmith, appeared on behalf of the first respondent. Written submissions were filed and in the light of the applicant’s lack of any submissions, Ms Noakesmith was content to rely on written submissions.

Consideration

1. Ground 1 is a broad assertion with no particulars provided. In the absence of particulars of the alleged error of law, no jurisdictional error can be made out. However, bearing in mind the applicant is unrepresented, I have perused the decision of the Tribunal for errors of law, which although not articulated by him, are not apparent on the face of the record.

2. Ground 2 asserts that the findings of the Tribunal were made without proof. First, it is for the applicant to prove that they meet the criteria for being a refugee. The onus of proof lies upon the applicant (see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 paragraph [195] per Callinan J). In the case of Abebe v Commonwealth (1999) 197 CLR 510 at paragraph [187] (“Abebe”) per Gummow and Hayne JJ, it was said:

   ...The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever argument or evidence she wishes to advance in support of her contention that she has a well-founded fear of persecution...

3. I accept the first respondent’s submission that Ground 2 does not identify any jurisdictional error on the part of the Tribunal and appears to be more a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaint, such as it is, invites merits review which the Court cannot undertake (see Abebe paragraphs [53] - [54] per Gleeson CJ and McHugh J).

4. Ground 3, such as it is, is not a proper ground of appeal and is merely a request for the Court to find in the applicant’s favour and to remit the matter back to the Tribunal for further reconsideration. Neither Ground 2 nor Ground 3 raise any jurisdictional error.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Date: 19 September 2019