CLP24 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 1241

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CLP24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1241

File number:

PEG 149 of 2024

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

19 November 2024

Catchwords:

MIGRATION – Administrative Appeals Tribunal – protection visa (class XA) (subclass 866) – whether the Tribunal misconstrued the risk and fear of significant harm – whether the Tribunal’s obligations under s 424A and s 424AA were enlivened – jurisdictional error not made out - application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 5AAA, 5J, 5J(1)(a), 5J(2), 5LA, 36, 36(2), 36(2)(a), (aa), (b), (c), 36(2A), 65, 65(1)(b), 423A, 424A, 424A(3)(a), (b), (ba), 424AA, 499.

Migration Regulations 1994 (Cth) sch 2.

Cases cited:

 Abebe v Commonwealth of Australia (1999) 197 CLR 510

ABT17 v Minister for Immigration and Border Protection [2020] HCA 34

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Fox v Percy [2003] HCA 22

Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Division:

Division 2 General Federal Law

Number of paragraphs:

51

Date of hearing:

1 November 2024

Place:

Perth

Solicitor for the Applicant:

In person

Solicitor for the First Respondent:

Ms Ismailjee (Sparke Helmore)

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

PEG 149 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CLP24

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	19 NOVEMBER 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to ‘Minister for Immigration and Multicultural Affairs’.

2.The application is dismissed.

3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $6,500.00.

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 D HUMPHREYS

INTRODUCTION

1. This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (“the Tribunal) dated 16 April 2024. It affirmed the decision of a delegate of the then Minister for Immigration and Border Protection (“delegate”) to refuse to grant the applicant a Protection (class XA) (subclass 866) visa (“visa”). The applicant claimed she feared harm from gangsters as her father was unable to repay money he had borrowed from them.

   BACKGROUND

2. The applicant is a female citizen of Malaysia who first arrived in Australia on 24 August 2017 on an Electronic Travel Authority (class UD) (subclass 601) visa.

3. The applicant has worked in Australia packing meat, packing strawberries and in a carrot factory. She lives in Australia with her husband whom she married in February 2022. He has also applied for protection. The applicant has previously claimed before the Tribunal that she had no knowledge of his claims and was relying solely on her claims.

4. By consent, this matter was heard concurrently with the application for judicial review by her husband. Each application has a separate judgement.

5. The applicant applied for the visa on 04 October 2017. On 21 November 2017, the applicant was informed that her visa application had been refused under s 65 of the Migration Act 1958 (Cth) (“the Act”). The delegate did not accept that the applicant faced a real chance of serious harm for one or more of the reasons in subsection 5J(1)(a) of the Act. The delegate also did not accept that there was a real risk the applicant would face significant harm for any reason on her return to Malaysia.

6. The applicant applied to the Tribunal for review of the refusal decision on 29 November 2017.

7. The applicant appeared before the Tribunal in February 2024. She was self-represented. She was assisted by an interpreter who spoke the Malay and English languages.

8. On 16 April 2024, the Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa.

9. For the reasons set out below the application must be dismissed.

   ADMINISTRATIVE APPEALS TRIBUNAL DECISION

10. The Tribunal set out the criteria for a protection visa in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (“Regulations”) wherein an applicant must meet one of the alternative criteria in ss 36(2)(a), (aa), (b) or (c). The Tribunal stated the applicant must be either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such as person, and that person holds a protection visa of the same class.

11. The Tribunal made reference at [10] to s 5AAA of the Act, and stated that it makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.

12. It also outlined at [11] that s 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence.

13. At [12] it listed the mandatory considerations required under Ministerial Direction No. 84 made under s 499 of the Act. These included the requirement for the Tribunal to consider the ‘Refugee Law Guidelines’ and ‘Complementary Protection’ assessments prepared by the Department of Home Affairs. It was also required to consider country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

14. The Tribunal summarised at [13] the applicant’s claims in her protection visa application as follows (errors in original):  

    •The applicant claims she left Malaysia because her dad borrowed money from big gangsters to help him start a business with a friend.

    •Her Dad’s friend cheated her father and ran away with the money.

    •The applicant claims her father is unable to pay back the debt. The gangsters suggested he gives her to them to settle the debt. Her father did not agree and asked her to run to safety.

    •The applicant claims if she returned to Malaysia the gangsters will catch her and kill her.

    •The applicant claims the gangsters have threatened her and her family. They put a knife to the throats of her parents. She ran away to save herself and does not know what happened to her parents.

    •The applicant claims the authorities could not protect her because the gangsters threatened, they will kill her whole family if she made a police report.

    •The applicant claims she was unable to relocate because they will easily find her within Malaysia.

    •She does not think she will be mistreated if she returns.

    •The authorities cannot do anything as they belong to the government.

15. The applicant provided a copy of her Certificate of Marriage, her Islamic Certificate of Marriage and a copy of her Certification of Nikah, indicating she was married in Australia in February 2022. These documents were provided in response to a pre-hearing request from the Tribunal.

16. The applicant expanded on her claims at the hearing. She told the Tribunal she was aware her husband had also applied for protection, but she had no knowledge of his claims and was relying on her claims only. Both matters were heard separately [70].

17. Having travelled to Australia on a genuine Malaysian passport and maintained at all times that she is a citizen of Malaysia, the Tribunal found the applicant to be a Malaysian citizen at [17]. Her claims were assessed against Malaysia as the country of nationality and the receiving country.

18. She confirmed her religion as Muslim and ethnic group as Malay. She stated that she has never been involved in politics.

19. The Tribunal raised concerns at [48] about the credibility of the applicant’s claims about the harm she fears from loan sharks, who seek vengeance upon her for her father’s outstanding loan, if she returned to Malaysia. It was not satisfied at [53] on the evidence that the loan sharks tried to harm the applicant’s father by ramming his car. The Tribunal did not at [56] accept that the loan sharks have a continued interest in the applicant as collateral for her father’s loan.

20. The Tribunal was prepared at [57] to accept the applicant’s father had, at times, taken loans from a loan shark, resulting in him being threatened following non-payment of instalments. However, it did not accept the applicant’s claim that the harassment from the loan sharks led to her mother’s death.

21. The Tribunal referenced country information from [58] to [65] and made several observations. These included reasonably effective responses from the police force and judiciary who afford a degree of protection from the illegal practice of loan sharks at [60]. The Tribunal noted that country information reflects that loan shark activity in Malaysia can be associated with threats and violent crime at [63]. The Tribunal also observed that the Malaysian police and government authorities have taken, and continue to take, prosecutorial action against loan sharks and that there are organisations that may be able to assist the applicant’s father and herself if she was required to return to Malaysia.

22. The Tribunal found at [64], based on country information, that effective protection measures are available to the applicant in Malaysia in the event she or her family members are subjected to violence or threats of violence from loan sharks for the reasons claimed.

23. Based on the available country information, the Tribunal found that Malaysia has an appropriate system of criminal law, that the police force is effective and that it has an impartial judicial system. At [65], they stated by operation of s 5J(2) and s 5LA, the applicant did not have a well-founded fear of persecution as a victim of loan sharks as claimed or for any related claim or any other reason.

24. The Tribunal found at [66] that there was no real chance the applicant would suffer serious harm should she return to Malaysia at the time or in the reasonably foreseeable future on the basis of her claim and that she did not meet the criteria for protection under s 36(2)(a).

25. The Tribunal considered the alternative criterion in s 36(aa) at [73] and was not satisfied that the applicant is a person in respect of whom Australia has protection obligations.

26. The Tribunal also concluded at [74] there was no suggestion that the applicant satisfied s 36(2) on the basis of being a member of the same family unit as a person who satisfied s 36(2)(a) or (aa) and who holds a protection visa. The applicant therefore did not satisfy the criterion in s 36(2).

27. At [75], the Tribunal affirmed the decision not to grant the applicant a protection visa.

    GROUNDS OF JUDICIAL REVIEW

28. The grounds of judicial are contained in the Originating Application filed on 10 May 2024. They are reproduced as follows:

    1.The Tribunal misconstrued the risk and fear of significant harm as set out in section 36(2A) of the Migration Act 1958.

    2.The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon her returns to Malaysia from the loan sharks.

    3.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the provisions of the Migration Act

    4.The Tribunal has failed to investigate applicant’s claim, especially the grounds of persecution in Malaysia.

    5.The second respondent failed to comply with the mandatory requirement The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon her returns to Malaysia from a Malaysian man who previously assaulted the applicant in Australia and resultant health issues.

    6.under section 424A(read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

    THE APPLICANT’S SUBMISSIONS

29. The applicant appeared before the Court unrepresented. She was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been served on her. The Court also ensured the applicant had access to a pen and paper so she could take notes during the course of the hearing should she so wish to.

30. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.

31. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of her case. The applicant told the Court that she was not told during the Tribunal hearing she needed to have all documents translated. The applicant was taken to CB79, a copy of an invitation to attend the Tribunal hearing which clearly stated, “Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator".

32. The applicant told the Court she did not want to go back to Malaysia because it was a very dangerous place for her. She was also concerned for the safety of her children as “they” maybe will look for her. She stated she had already paid what she owed to the money lenders but they still look for her father. She stated she wants a chance to stay in Australia and raise her and her husband’s son.

33. The applicant was asked if she wished to make any submissions in relation to the grounds of judicial review which were translated to her. Notwithstanding, at face value, the grounds appear to have been drafted by someone with at least some legal knowledge, the applicant maintained she had drafted the grounds of judicial review with some assistance from a friend who has now gone back to Malaysia.

34. At the conclusion of the respondent’s oral submissions, the applicant was asked if she wished to state anything in reply. She claimed a police report she provided was not in the Court Book.

    THE FIRST RESPONDENT’S SUBMISSIONS

35. The first respondent submitted that the application for judicial review does not provide any particulars or any legal ground of review. The application invites the Court to undertake a review of the merits of the Tribunal’s decision. To engage in fact finding about the merits of the applicant’s case is no part of the function of the Court citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. The first respondent submitted that the application for judicial review does not establish any jurisdictional error in the decision of the Tribunal and ought to be dismissed.

36. The first respondent submitted that insofar as grounds one, two and four contend that the Tribunal misapplied the refugee criteria, the Tribunal correctly identified and set out the relevant criteria and considerations for the grant of the visa (CB 117-118, [5]-[12]). The Tribunal consistently referred to the correct tests of “well-founded fear of persecution” for the refugee criterion and “real risk of significant harm” for the complementary protection criterion in its decision. There is nothing on the material to suggest that the Tribunal misconstrued any relevant provision of the Act or otherwise failed to investigate the applicant’s claims, particularly noting there was no obligation for the Tribunal to make the applicant’s case for her, citing (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (“SGLB”); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 (“VSAF”) at [20] per Black CJ, Sundberg and Bennett JJ ). The first respondent argued the grounds should therefore fail.

37. The first respondent contended in relation to ground three that, ss 65 and 36(2) of the Act require the Tribunal to reach a requisite level of satisfaction in respect of the relevant criteria before a visa can be granted. Further, s 65(1)(b) of the Act requires that if the Tribunal is not so satisfied, it must refuse to grant the visa. Clearly here, the Tribunal had concerns about the credibility of the applicant’s claims (CB 124, [48]), the lack of detail of her claims (CB 124, [49]) and recorded that the country information outlined effective protection measures are available to the applicant (CB 126-127, [63]-[65]). The first respondent submitted the ground should fail on that basis.

38. The first respondent further stated, in relation to ground five, contrary to the applicant’s claims, there was no information that the Tribunal was required to put to the first applicant pursuant to s 424A of the Act. No breach of s 424A of the Act is apparent, and therefore this ground cannot succeed.

39. The first respondent outlined, in relation to ground six, the Tribunal’s obligations under ss 424A and 424AA of the Act were not enlivened because there was no relevant “information” that was required to be put to the applicant. In making its findings, the Tribunal relied on inconsistencies, as well as the country information and the applicant’s oral and written evidence to the Department and Tribunal, all of which are exempted by ss 424A(3)(a), (b) and (ba) of the Act.

40. The first respondent further submitted the Tribunal is not required to provide its “subjective appraisals, thought processes or determinations” in relation to the evidence, citing SGLB and VSAF, or a “running commentary upon what it thinks about the evidence that is given”, citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) at [47]-[48] per Gleesson CJ, Kriby, Hayne, Callinan and Heydon JJ; Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285 at [88]-[89] per Emmett, Weinberg and Lander JJ.

    CONSIDERATION

41. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:

    … an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister.  The Court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.

    Ground One, Two and Four

1. Ground one is a claim that the Tribunal misconstrued the risk and fear of significant harm in s 36(2A) of the Act. This claim is repeated, although slightly differently, also in grounds two and four. No further material was put to the Court in support of this contention. A perusal of the Tribunal decision record reveals the Tribunal properly instructed itself at [5] – [12] as to the relevant tests it was required to consider.

2. Nothing in the subsequent paragraphs of the decision record indicates that the Tribunal did not correctly apply the relevant tests. The Tribunal set out the relevant background information together with the applicant’s claims. The Tribunal put relevant information and concerns it had to the applicant to enable her to respond. The Tribunal’s findings and reasons at [45] – [69] flow logically from the evidence it had before it and there is more than sufficient reasoning set out for the conclusions the Tribunal arrived at.

3. Further, in relation to the complaint in ground four, that the Tribunal failed to investigate the applicant’s claims, there is no general obligation on a Tribunal to investigate an applicant’s claims: SGLB at [43]. The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. The exception is where there is an obvious failure by the Tribunal to make an enquiry about a critical fact, the existence of which is easily ascertained: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]. There was no critical fact that required investigation in this case. Grounds one, two and four have no merit.

   Ground Three

4. Ground three is a bare claim that the Tribunal had no jurisdiction to make its decision because its “reasonable satisfaction” was not arrived at in accordance with the provisions of the Act. Again, no particulars are provided nor was this ground addressed by the applicant during the course of her oral submissions. Unsurprisingly, the Tribunal had considerable concerns about the credibility of the applicant. In these circumstances, the Tribunal had no option, other than to affirm the decision under review as it was not satisfied to the relevant degree required for it to grant the applicant a protection visa. It is well established that the Tribunal enjoys an advantage of fact to test the veracity of evidence given orally by observing the witness: Fox v Percy [2003] HCA 22 at [41]; ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [62].

5. It is well established the Tribunal is not required to accept uncritically any and all claims made by an applicant: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348].

6. It is for the applicant to satisfy the Tribunal or Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]. The Court is satisfied there was a logical and probative basis for the Tribunal to arrive at the conclusions it did on the evidence before it and for the reasons it gave. The Court is satisfied that the Tribunal correctly arrived at the requisite standard of proof. Ground three has no merit.

   Ground Five

7. Ground five is a claim that the Tribunal erroneously construed the existence of risk to life and fear to the applicant in relation to a man who previously assaulted the applicant in Australia. No particulars are provided in relation to how the Tribunal misapplied this purported claim nor, was the ground addressed in submissions either in writing or orally by the applicant. The Court is satisfied that the Tribunal correctly set out all of the applicant’s claims and they were properly addressed in the consideration portion of the Tribunal decision. Ground five has no merit.

   Ground Six

8. Ground six is a claim that the applicant should have been given clear particulars of information it considered would be part of the reason for affirming the decision under review. The Court accepts the submission of the respondent that the Tribunal’s obligations under s 424A and s 424AA of the Act were not enlivened as there was no relevant “information” that was required to be put to the applicant. In making its findings, the Tribunal relied on information that was before it, as well as country information and the applicant’s oral and written evidence to the Department and the Tribunal. None of this was required to be put to the applicant. Further, the Court accepts the submission that the Tribunal was not required to provide “subjective appraisals thought processes or determinations in relation to the evidence” or at “a running commentary upon what he thinks about the evidence that is given”: SZBEL at [47] – [48]. Ground six has no merit.

   DETERMINATION

9. As the applicant is unrepresented, the Court has considered the material contained within the Court book as well as other supporting material but is unable to ascertain any articulated jurisdictional error.

10. In these circumstances, the application must be dismissed.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       15 November 2024