CMJ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 793
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CMJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 793
File number(s): MLG 1213 of 2017 Judgment of: JUDGE J YOUNG Date of judgment: 30 August 2023 Catchwords: MIGRATION – judicial review – Protection (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of the first respondent that applicant was not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth) – applicant in part seeks impermissible judicial review of first respondent’s decision – whether Tribunal failed to assess the applicant’s claim for protection – found no jurisdictional error on behalf of the Administrative Appeals Tribunal Legislation: Freedom of Information Act 1982
Migration Act 1958 (Cth) (Act) ss 5(1), 5H, 5J, 36(1A), 36(2)(a), 36(2)(aa), 65, 91R, 414, 424A(3)(a), 430, 474, 476
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 sch 5, pt 2, it 12, sch 5, pt 4, it 28
Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Commencement Proclamation 2015
Migration Regulations 1994 (Cth) sch 2
Cases cited: Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusef [2001] HCA 30; (2001) 206 CLR 323
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Singh v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2022]
SZSRX v Minister for Immigration & Anor [2014] FCCA 2447
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of hearing: 7 August 2023 Place: Melbourne Solicitor for the Applicant: Litigant in person Solicitor for the First Respondent: Mr Lettenmaier of Sparke Helmore ORDERS
MLG 1213 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CMJ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE J YOUNG
DATE OF ORDER:
30 August 2023
THE COURT ORDERS THAT:
1.The Application filed 8 June 2017 be dismissed.
2.The applicant pay the first respondent’s costs in an amount to be fixed if not agreed.
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 J YOUNG:
INTRODUCTION
Before the Court is an Application filed on 8 June 2017, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 12 May 2017. By that decision, the Tribunal affirmed a decision of a delegate (delegate) of the first respondent (Minister) to refuse to grant the applicant a Protection (subclass 866) visa under s 65 of the Migration Act 1958 (Cth) (Act).
CONTEXT
The applicant is a citizen of Malaysia.
On 7 March 2016 the applicant entered into Australia on a UD-601 Visitor visa.
On 4 May 2016 the applicant applied for a Protection (subclass 866) visa (Visa). The applicant’s claims contained in his Visa application can be summarised as follows:
·he left Malaysia because he was a member of the Bersih group and members of this group were imprisoned;
·if he returns to Malaysia, the police will imprison him;
·he cannot relocate to another part of Malaysia as it is a small country, therefore his only option was to depart; and
·the Malaysian authorities cannot protect him.
On 26 July 2016 the applicant was notified that the delegate refused to grant the visa.
On 5 August 2016, the applicant applied to the Tribunal for review of the delegate’s decision. In his application for review, the applicant nominated the email address <[email protected]> (applicant’s email address) for correspondence and provided the mobile number ‘xxxxx xxx28’ (applicant’s mobile).
On 10 April 2017, the Tribunal emailed the applicant inviting him to attend a hearing on 5 May 2017 at 9.30am. The hearing invitation stated that the Tribunal was unable to make a favourable decision on the information provided, and that if the applicant did not attend the hearing, the Tribunal may dismiss the application without any further consideration of the application or information before it.
On 28 April 2017, the applicant lodged a request for access to documents under the Freedom of Information Act 1982 (FOI Request).
On 3 May 2017, the applicant emailed the Tribunal requesting an adjournment. The applicant stated that his reasons for seeking an adjournment were as follows:
…I have been in contact with one of the migration agent from Melbourne to represent me for AAT hearing. As, he doesn’t have any information about my protection visa claims and documents. I was advised to apply for FOI with DIBP and AAT.
I have applied for FOI…on 28th April 2017…I am waiting for the documents to be send by AAT and DIBP both. Once that it is available with me, I will take an assistance from migration agent and he will represent me further for AAT hearing.
I understand I am informing you this at the very last moment, but as I am not aware about the laws and technicalities of AAT hearing, it would be in my best interest that migration agent represents me for AAT hearing.
…
I request you to please postpone my hearing for later date so that my case could be represented in better way and give me every opportunity to put my claims forward…
On 4 May 2017, the Tribunal refused the applicant’s request for adjournment. The Tribunal did not provide reasons for its decision.
On the same day, the Tribunal sent the applicant the documents relevant to his FOI request.
On 5 May 2017, the applicant appeared before the Tribunal. The applicant was self-represented at the hearing and had the assistance of a Malay interpreter.
On 12 May 2017, the Tribunal affirmed the decision not to grant the applicant the Visa.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 12 May 2017 (Tribunal Decision).
At the hearing, the Tribunal read the applicant’s written claims and invited him to vary, amend or add to them. The Applicant expanded on his written claims and stated that he:
·was not that active of a Bersih member, but attended all the rallies;
·met people at the rallies and saw a lot of negative things;
·borrowed money from a friend he met at the rallies in the amount of MR10K; and
·had difficulty repaying this loan while in Malaysia.
The Tribunal accepted that the applicant was unable to repay his debt to his friend and that he had participated at a Bersih demonstration in 2015.
The Tribunal, however, otherwise found that the applicant’s evidence was not credible.
Firstly, the Tribunal did not accept that the applicant feared harm because he attended the Bersih demonstration or because of the unpaid debt he owed to his friend, who was said to be “influential” in the Bersih movement and would betray him to authorities. The Tribunal found that those claims were not credible as he had been in Malaysia for a period of three months after incurring the debt without being detained or prevented from leaving the country on account of either the debt or his political activism.
Secondly, the Tribunal found that the applicant had provided no evidence of being a member of the Bersih group, yet claimed he was a person of interest to the authorities because of his involvement in the 2015 rally. The Tribunal found that claim not to be credible as, based on the Department of Foreign Affairs & Trade Country Information Report on Malaysia, dated 19 July 2016 (country information), even if the applicant were to participate in future similar rallies, there was only a remote chance of him being arrested or otherwise persecuted for reasons of his real or imputed political opinion.
Thirdly, the Tribunal did not find the applicant’s explanations in relation to the debt credible. The Tribunal reiterated that, despite incurring the debt in November 2015, the applicant was able to remain in Malaysia without triggering the interest of authorities for a period of three months before departing to Australia in March 2016. The Tribunal further noted the applicant’s own evidence that he had been putting aside around $300 per week since March 2017 to repay the debt.
At paragraph [40] of the Tribunal Decision, the Tribunal said:
…the Tribunal does not accept that the applicant was forced to flee Malaysia for his political opinions, as he has claimed, nor that there is a real chance that he will face persecution involving serious harm because he chose not to settle his debt he owed to his friend Hamadan, or for his involvement in the demonstrations against the Malaysian government organised by the Bersih 4.0 in 2015 if he returns to Malaysia now. Having considered the totality of the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution as defined in s.5J of the Migration Act (as amended). For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect to whom Australia has protection obligations under s.36 (2)(a) of the Act.
Accordingly, the Tribunal found that the applicant did not meet the refugee criterion in s 36(2)(a).
As to the complimentary protection grounds in s 36(2)(aa) of the Act, for the reasons set out above the Tribunal did not accept that the applicant was forced to flee Malaysia for his political opinions, nor that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Malaysia, it was a real risk that he will suffer significant harm because he has an outstanding debt or for his involvement in the demonstrations against the Malaysian government organised by the Bersih 4.0 in 2015.
For completeness, the Tribunal noted that 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 satisfies s 36(2)(a) or (aa) and who holds a protection visa.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal’s decision on 8 June 2017.
The Application contains the following grounds for judicial review (without amendment):
1.The decision of the Tribunal is affected by jurisdictional error as it failed to comply with section 414 of the Migration Act 1958 (the Act).
Particulars
a.The Tribunal failed to assess the applicant’s claim for protection on the basis of membership of Bersih (a civil society organisation promoting clean and fair elections in Malaysia) in Malaysia.
b.The delegate (reviewer) was under a duty to accord the applicants procedural fairness when determining whether the recommend the applicant are or are not entitled to protection.
c.The duty to accord procedural fairness required the delegate to notify the applicant that one of the issues the delegate intended to consider was whether the applicants met the criterion specified in s 36(2)(aa) of the Act.
d.The delegate proceeded to assess the applicants’ application and refused the Protection visa on 21 July 2016 without inviting the applicants to respond.
e.The delegate failed to properly notify the applicants whether the application considered as a refugee under the 1951 Refugees Convention or under the complementary protection
f.The delegate failed to invite the applicants to comment and present evidence before refusing the protection visa. See SZSRX v Minister for Immigration & Anor [2014] FCCA 2447
g.The Tribunal failed to assess the applicant’s claims under the complementary protection criteria s 36(2)(aa) of the Act.
h.Although accepting the applicant did participate at a Berish demonstration in Malaysia protesting against the Malaysia government in 2015 the Tribunal refused to grant the applicants Protection visa. (Ground 1).
2.In the alternative to ground 1 above, the Tribunal misconstrued and misapplied s 91(r) of the Act.
Particulars
a.The Tribunal failed to refer and put the applicant the contents of the report entitled Report of the People’s Tribunal on Malaysia’s 13th general Elections, The Coalition for Clean and Fair Elections (BERSIH) 26 March 2014 page 34 which referred to by the delegate and which said report had examples of violence and death. Applying Minister for Immigration and Multicultural Affairs v Yusef [2001] HCA 30; (2001) 206 CLR 323, the Tribunal is required in a written statement to set out (inter alia) the reasons for the decision, the findings on any material questions of fact, and to refer to the evidence or any other material on which the findings of fact are based. (Ground 2).
3.The decision of the Tribunal if affected by jurisdictional error on the basis that the Tribunal misconstrued and misapplied ss 5 and 36(2) of the Act.
Particulars
a.The Tribunal although accepts there are some grounds which meets the criteria in s36(2)(aa) as necessary and foreseeable consequence of being removed from Australia to Malaysia failed to consider there is a real risk that the applicants will suffer significant harm. (Ground 3)
The applicant filed the following further relevant material:
(1)affidavit of the applicant filed 8 June 2017, annexing the Tribunal’s decision; and
(2)written submissions filed 1 August 2023. Those submissions simply repeated the grounds set out in the Application.
The Minister filed a Response on 3 July 2017. The Response contained the following ground:
1.The application for judicial review does not establish any jurisdictional error in the decision of the Administrative Appeals Tribunal dated 12 May 2017.
The Minister also filed written submissions on 8 November 2021 and 24 July 2023.
THE HEARING
The hearing took place on 7 August 2023. The applicant was self- represented and assisted by a Malay interpreter.
Submissions
At the hearing the Applicant was invited to elaborate on the grounds contained in the Application but provided no further submissions or matters for the consideration of the Court.
The Minister relied upon its written submissions of 24 July 2023.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task of judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
CONSIDERATION
Relevant statutory framework
The criteria for a protection visa are set out in s 36 of the Act and schedule 2 of the Migration Regulations 1994 (Cth). In summary, and as presently relevant, the applicant must be a person in respect of whom Australia has protection obligations as a refugee or on other “complementary protection” grounds.
The presently relevant provisions of the Act are set out below.
Section 36(1A) of the Act provides as follows:
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2)
Section 36(2), relevantly, provides as follows:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mention in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
Torture, cruel or inhumane treatment or punishment, and degrading treatment or punishment are defined in s 5(1) of the Act.
The meaning of refugee is set out in s 5H of the Act. Relevantly, s 5H(1)(a) provides that a person is a refugee if:
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality--is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;
The meaning of well-founded fear of prosecution is set out in s 5J of the Act, relevantly, as follows:
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person's capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
Ground 1
By ground 1, the applicant contends that the Tribunal failed to comply with s 414 of the Act. The applicant relies on a number of particulars as to this contention, which I address in turn.
Particular (a)
By particular (a), the applicant contends that the Tribunal failed to consider his claim to fear harm because of his Bersih membership. Contrary to the applicant’s contention, it is clear from the Tribunals’ decision that the Tribunal did consider this claim.
At paragraph [37] of the Tribunal’s decision, the Tribunal said:
Firstly, the applicant told the Tribunal that he has participated in a Besih demonstration in 2015 organised by the Bersih 4.0 and he also claimed to be a member of this group. The applicant feared that his participation at this demonstration against the Malaysians government made him a person of interest to the authorities. He then told the Tribunal that he would be a person of interest to the authorities because he had borrowed money from a friend who was involved in the organisation and was “influential” and he has not repaid the money and that he (his friend) would betray him to the authorities. The Tribunal does not accept this explanation is credible.
At paragraph [38] of the Tribunal’s decision, the Tribunal said:
Secondly, the applicant told the Tribunal that he had been a member of the Bersih 4.0 movement and had participated in the political rally which had been organised by that organisation in 2015 the applicant provided the tribunals with no evidence that he was a member of this political group. Yet he claimed that because of his involvement in this rally in 2015, he was a person of interest to the government and to the Malaysians police the Tribunal does not find this explanation of events credible. … Therefore, the Tribunal finds that based on the country information provided by the Australian Department of Foreign Affairs and Trade (see paragraph 33) even if the applicant were to participate in future in similar rallies, there is only a remote chance of his being arrested or otherwise persecuted for reasons of this real or imputed political opinion.
Accordingly, the Tribunal clearly considered the applicant’s claim to fear harm because of his Bersih membership but, as set out in paragraph [40] of its reasons (set out in full at paragraph [21] above) did not accept that the applicant was forced to flee Malaysia for his political opinions, as he claimed, or that there was a real chance that he will face persecution involving serious harm because he chose not to settle the debt or for his involvement in the demonstrations against the Malaysian government organised by the Bersih 4.0 in 2015. Considering the totality of the evidence, the Tribunal found that the applicant did not have a well-founded fear of persecution as defined in section 5J of the Act.
Particulars (b)-(f)
By paragraphs (b)-(f) the applicant takes issue with the “delegate’s” decision. The delegate’s decision cannot be judicially reviewed by this Court as it was a ‘primary decision’ within the meaning of s 476(4)(a) of the Act, in that it is a privative clause decision reviewable under Part 5 of the Act: Singh v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2022].
Particular (g)
By particular (g), the applicant contends that the Tribunal failed to assess the applicant’s claim under s 36(2)(aa) of the Act.
At paragraph [41] of the Tribunal’s decision the Tribunal said:
The Tribunal having concluded that that the applicant does not meet the refugee criterion in s.36 (2)(a), the Tribunal has considered the alternative criterion – complimentary protection in s.36(2)(aa). For the reasons given in paragraphs 36 to 38 above, the Tribunal does not accept that the applicant was forced to flee Malaysia for his political opinions, as he had claimed, nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm because he has an outstanding debt owing to his friend, Hamadan or for his involvement in the demonstrations against the Malaysian government organised by the Bersih 4.0 in 2015. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
Accordingly, contrary to the applicant’s contentions, the Tribunal expressly considered the complementary criterion in s 36(2)(aa) but concluded that the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.
Particular (h)
By particular (h) the applicant does not identify any jurisdictional error in the Tribunal’s decision but, rather, indicates disagreement with the Tribunal’s decision to refuse to grant the applicant the Visa. Accordingly, by this particular the applicant seeks this Court undertake impermissible merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at [272] (Liang).
It follows that Ground 1 discloses no jurisdictional error on behalf of the Tribunal.
Ground 2 and ground 3
It is convenient to address grounds 2 and 3 together.
By ground 2 the applicant contends that the Tribunal misconstrued and misapplied s 91R of the Act, failed to put country information to the applicant and failed to provide proper reasons for its decision. By ground 3 the applicant contends that the Tribunal misconstrued and misapplied s 5 and s 36(2)(aa) of the Act and failed to consider whether the applicant faced a real risk of significant harm.
For the following reasons, neither ground 2 nor 3 disclose any jurisdictional error on behalf of the Tribunal.
Firstly, at paragraphs [4]-[7] of the Tribunal’s decision, the Tribunal correctly set out the relevant law with respect to the refugee criterion under s 36(2)(a), the meaning of persecution under s 5J of the Act and the complimentary protection criterion under s 36(2)(aa). The Tribunal, correctly, did not make any finding under s 91R. Section 91R was repealed on 18 April 2015 and s 5J applied to any application for protection visa made on or after 18 April 2015: Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, pt 2, it 12 of sch 5 and pt 4, it 28 of sch 5; and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Commencement Proclamation 2015).
Secondly, the Tribunal assessed the applicant’s claims with reference to the relevant statutory criteria and applied them in an orthodox manner. The Tribunal did not accept that the applicant was forced to flee Malaysia for his political opinion or that there was a real chance that he will face serious harm because he had not settled the debt owed or because of his involvement in the Bersih rallies. At paragraphs [40]-[41] of the Tribunal’s decision the Tribunal found that the applicant did not have a well-founded fear of persecution as defined in s 5J and was not satisfied that the applicant was a person to whom Australia had protection obligations under s 36(2)(a) or s 36(2)(aa).
Thirdly, under s 424A(3)(a) of the Act, the Tribunal was under no obligation to put country information contained in the delegate’s decision to the applicant for comment. Further, it is well settled that the choice and assessment of country information is a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]-[13].
Fourthly, the Tribunal’s written statement of reasons complied with s 430 of the Act. The Tribunal’s decision sets out the applicant’s claims raised in his visa application (at paragraph [13]), his claims advanced at hearing (at paragraph [14]), assessed those claims and evidence and provided reasons for its decision (at paragraphs [35]-[41]).
Finally, in so far as the particulars to ground 3 might be understood to impugn the conclusion reached by the Tribunal that the applicant did not face a real risk of significant harm, this ground seeks impermissible merits review: Liang at [272].
Accordingly, ground 2 and 3 do not disclose any jurisdictional error of behalf of the Tribunal.
It follows that none of the grounds advanced by the applicant raise any jurisdictional error of behalf of the Tribunal.
The Application before this Court therefore cannot succeed.
CONCLUSION
For the above reasons, the Application must be dismissed.
Costs are sought by the Minister; however the Minister did not address the Court as to this. Accordingly, I order costs to be paid by the applicant in an amount to be fixed if not agreed.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 30 August 2023
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