CMK18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 363
•24 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CMK18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 363
File number(s): MLG 1510 of 2018 Judgment of: JUDGE J YOUNG Date of judgment: 24 April 2024 Catchwords: MIGRATION – application for judicial review – Protection (subclass 866) visa – where Administrative Appeals Tribunal affirmed decision of 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 – where grounds raised by applicant entirely unparticularised – where certain grounds raised by applicant seek impermissible merits review – whether Tribunal failed to consider evidence – found no jurisdictional error on behalf of the Tribunal – application dismissed. Legislation: Migration Act 1958 (Cth ss 5H, 5J(1)(a), 36(2)(a), 36(2)(aa), 424A, 425, 425A, 474, 476 Cases cited: BDE16 v Minister for Immigration and Border Protection [2019] FCA 816
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 47 Date of hearing: 10 April 2024 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Solicitor for the First Respondent: Ms Sangha of Mills Oakley Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1510 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CMK18
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:
24 APRIL 2024
THE COURT ORDERS THAT:
1.The Application filed 30 May 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the amount of $5,400.
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 30 May 2018, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 30 April 2018. 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 (Class XA) (subclass 866) visa.
CONTEXT
The applicant is a citizen of Malaysia.
On 31 March 2017 the applicant entered into Australia on a UD-601 Electronic Travel Authority visitor visa.
On 22 June 2017 the applicant applied for a Protection (subclass 866) visa (Visa). The applicant’s claims were set out in his Visa application. Relevantly, the applicant claimed that:
(1)after he graduated, he was unable to find a job so he decided to open a small business;
(2)he did not have enough money so he borrowed money from a “loan shark (Ah Long)”;
(3)he was forced to shut down his business due to an “unstable economy” and the loan shark demanded four times the original amount he owed;
(4)the loan shark threatened him, pressured him with phone calls, beat him and took his valuables as payment;
(5)if he returns to Malaysia he has “doubt” about his and his family’s safety due to the loan shark’s threats;
(6)he did not seek help in Malaysia because the loan shark will “beat” him;
(7)he could not move to another part of Malaysia because the loan shark has a “branch in every state”; and
(8)the loan shark gave him “permission” to come to Australia to “pay the full payment debt” and that “after problem solve” he would go back to Malaysia.
On 4 September 2017 the Delegate refused to grant the applicant the Visa. The refusal notification attached the decision record of the Delegate which stated the reason for the refusal of the Visa was on the basis that the Delegate was not satisfied that the applicant had a real chance of persecution for one or more of the reasons in s 5J(1)(a) of the Migration Act 1958 (Cth) (Act) and therefore is not a refugee as defined in s 5H of the Act. Further, after considering relevant country information, the Delegate found that the applicant could obtain effective protection from the Malaysian authorities such that there would not be a real risk that he would suffer significant harm.
On 15 September 2017, the applicant applied to the Tribunal for review of the Delegate’s decision.
On 21 September 2017, the Tribunal sent the applicant confirmation of receipt of his application. In the correspondence, the applicant was advised that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.
On 8 December 2017, the Tribunal emailed the applicant inviting the applicant to attend an in-person hearing on 8 January 2018 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 8 January 2018 the applicant appeared before the Tribunal and gave evidence with the assistance of an interpreter in the Malay and English languages.
On 30 April 2018 the Tribunal affirmed the decision of the Delegate not to grant the applicant the Visa. On 1 May 2018, the Tribunal sent a copy of its decision and reasons to the applicant’s email address.
TRIBUNAL DECISION
The Tribunal issued its statement of decision and reasons on 30 April 2018 (Tribunal Decision).
At paragraph [7] of the Tribunal Decision, the Tribunal summarised the applicant’s claims.
At paragraph [18] of the Tribunal Decision, the Tribunal assessed the credibility of the applicant’s claims and found the following:
The Tribunal notes that, despite the applicant’s initial statement that he completed the protection visa application form himself, it contained a bare minimum of information, and suggested that he (or a person who assisted him) took a casual approach. It is satisfied that he later gave a generally credible account of his background, his work as a stallholder and his limited economic prospects in Malaysia. However, the Tribunal found the applicant’s claims and evidence about his dealings with a loan shark, that person’s pursuit of him and the applicant’s efforts to resolve the problem in Malaysia to be vague and lacking in detail. These raise broad questions about the truthfulness of his claims, and suggest that he is motivated in this application not by a real need for protection, but rather broader economic concerns.
At paragraphs [20] – [25] the Tribunal summarised the applicant’s written and oral claims to have borrowed money from loan sharks. The Tribunal noted that although the applicant initially stated at the hearing that the loan shark had recorded their agreement in writing, he subsequently denied there was any such document or that he received any paperwork.
At paragraphs [26] – [27] the Tribunal had regard to country information which indicated that illegal money lending is “a widespread problem in Malaysia” and that the “undocumented nature of such loans” makes it “difficult to substantiate such claims with reliable evidence”. However, at paragraph [28], the Tribunal identified some concerns about the applicant’s account of having borrowed money from a loan shark. Firstly, the Tribunal had concerns with the applicant’s evidence about his inability to find work commensurate with his education and his modest income, when considered together with his ability to hold a passport and explore work options abroad (even before his problems with the loan shark allegedly began). Secondly, the Tribunal had “some difficulty” in getting a “clear, consistent” account of what sums were borrowed, when they were borrowed and for what purpose.
At paragraphs [29] – [31], the Tribunal summarised the applicant’s written and oral claims in relation to the loan shark’s pursuit of him after he defaulted on payment. The Tribunal had concerns with the applicant’s claim that the loan shark had “trashed” his business, noting that the rational for such action surely would have “dented” the applicant’s capacity to repay the loan. The Tribunal summarised the applicant’s further oral claim’s about other steps the loan shark took to threaten and harass him and his family, including: seizing the applicant’s belongings; bashing the applicant (although noting the applicant could not provide any medical evidence to support this); and trashing the applicant’s home (and again, noting there was no documentary evidence to support this). Although noting that the applicant’s claims were “broadly consistent” with the kinds of actions that loan sharks took in Malaysia, the Tribunal found that the applicant provided “only brief comments” and did not seem to be “genuinely engaged” in trying to give further details or supporting evidence. This added to the Tribunal’s concerns that the applicant was not speaking from personal experience, but rather drawing on general knowledge about these kinds of activities.
At paragraphs [33]–[39] the Tribunal summarised the applicant’s written and oral claims in relation to his relocation to Australia, his current situation and future intentions. The Tribunal identified that the applicant had already obtained his passport in February 2016, well before he claimed the loan shark began to threaten him. The Tribunal also had regard to the applicant’s evidence that he did not know the current balance owing to the loan shark and that he had only made a single repayment of $3,000 AUD through a friend, but that there was no evidence of a transfer nor any evidence of correspondence between him and his friend to confirm that this had occurred. At paragraph [40], the Tribunal identified the concerns about the applicant’s claims, including that:
(1)it was “difficult” to believe the loan shark “brought such pressure to bear on the applicant” that it would then agree for the applicant to go abroad to earn money and that the applicant would only have made one repayment of $3,000 since arriving in Australia. The Tribunal found it to be “telling” that the applicant had not sought to reassure the loan shark in some way or confirm it had received that sum;
(2)the applicant had not provided any “real insight” as to why the loan shark was so impatient in Malaysia but was willing for the applicant to travel to Australia and repay him on his return which “could be years off”;
(3)the applicant’s account of sending the loan shark one lump sum via a friend was “unpersuasive”. The Tribunal found it surprising that the friend would not have given the applicant any advice of the handover of the money or that the applicant did not try to confirm that it had occurred. The fact that the applicant had not turned his mind to this issue reinforced the Tribunal’s doubts that the applicant had transferred any money to Malaysia for this purpose at all; and
(4)there was no suggestion the loan shark has had contact with the applicant or his family to remind them of the debt or intimidate them.
At paragraph [41], the Tribunal found that the applicant’s claims lacked “any sense of urgency or impending danger” which reinforced its concerns that he did not depart Malaysia to escape imminent harm from a loan shark, nor is he genuinely worried about his family’s welfare and that rather, his real focus is on economic issues as opposed to any fear of serious or significant harm.
At paragraph [42], the Tribunal accepted that the applicant has some financial concerns in Malaysia however, at paragraph [43], it did not accept that the applicant took out a loan from a loan shark during 2016 and rejected any of the claims associated with such loan.
Accordingly, the Tribunal found the applicant did not have a well-founded fear of persecution for one of the reasons outlined in s 5J(1) and thus did not meet the refugee criterion in s 36(2)(a) of the Act. For the same reasons, the applicant did not meet the complementary protection criterion in s 36(2)(aa) of the Act.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Tribunal Decision on 30 May 2018.
The Application contains the following grounds for judicial review (without amendment):
1.The Tribunal failed to consider many vital integers of my case;
2.The Tribunal failed to consider many vital evidence that are relevant to my case;
3.The Tribunal deprived me of procedural fairness;
4.The Tribunal Member relied on incorrect information and decided my case using facts from some other tribunal case;
The Member has failed to do his duty
The applicant also filed an affidavit on 30 May 2018 which annexed the Tribunal Decision.
At the hearing the applicant confirmed that he no longer pressed Ground 4.
The Minister filed a Response on 30 July 2018. The Response contained the following grounds:
1.The grounds pleaded by the applicant cannot succeed in the absence of any particulars to make them meaningful.
2.The application for judicial review fails to establish any jurisdictional error in the decision the second respondent dated 30 April 2018.
3.The first respondent seeks an order that the applicant pay the first respondent’s costs in a fixed amount.
The Minister also filed written submissions on 25 March 2024.
On 20 December 2023, Orders were made in Chambers listing the matter for hearing. Procedural orders were also made for the filing of a court book, written submissions and any additional evidence upon which the parties sought to rely. Relevantly, Order 2(a) of the Orders permitted the applicant to file any Amended Application with proper particulars of the grounds of the Application. The applicant did not file any Amended Application, nor did he file any written submissions.
The hearing
The hearing took place on 10 April 2024.
The applicant is self-represented and was assisted by an interpreter in the Malay and English languages.
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 Tribunal Decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on 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
Grounds 1 and 2
It is convenient to address Grounds 1 and 2 together.
By Grounds 1 and 2 the applicant submits that the Tribunal failed to consider “many vital integers” and “many vital evidence” of the applicant’s case. These grounds are entirely unparticularised. This alone is a sufficient basis to dismiss these grounds: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] (WZAVW); BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20], [24] (BDE16).
At the hearing the applicant submitted that the Tribunal did not consider that he had a debt from loan sharks and needs money to repay the loan sharks. He also submitted that the evidence of the threats made to him by the loan sharks was on his phone and he had deleted them.
The Tribunal Decision demonstrates that the Tribunal considered the applicant’s written and oral evidence and there is nothing to suggest that the Tribunal overlooked any of the applicant’s claims or evidence. In particular, as set out above, at paragraphs [20] – [25] of its decision the Tribunal considered the applicant’s claims in relation to indebtedness to loan sharks and at paragraphs [26] – [28] set out its consideration those claims. As to the threats made by the loan sharks being on the applicant’s phone, the Tribunal expressly addresses this absence of evidence at paragraph [22] of its decision. Further, the applicant conceded at the hearing that he had no probative evidence of the loan. As such, there can be no failure by the Tribunal to consider any such evidence.
The applicant’s oral submissions at the hearing simply express disagreement with the Tribunal’s findings and invites the Court to undertake impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 (Liang) at [272] per Brennan CJ, Toohey, McHugh and Gummow JJ.
Grounds 1 and 2 disclose no jurisdictional error on the Tribunal’s behalf.
Ground 3
By Ground 3 the applicant asserts a denial of procedural fairness. This contention is completely unparticularised and no further elaboration or particularisation was provided by the applicant at the hearing. This alone is a sufficient basis to dismiss these grounds: WZAVW; BDE16.
The Tribunal proceedings were conducted under Part 7 of the Act. Division 4 of Part 7 exhaustively codifies or confines the Tribunal’s procedural fairness obligations in this regard. The Applicant was validly invited to attend a hearing before the Tribunal in accordance with ss 425 and 425A of the Act. As stated above, the applicant attended the hearing on 8 January 2018 and gave evidence with the assistance of an interpreter in the Malay and English languages.
In making its decision, the Tribunal considered and relied on the applicant’s protection claims contained within his Visa application, his oral evidence provided at the Tribunal hearing and country information. Accordingly, there was no information the Tribunal was required to put to the applicant pursuant to s 424A of the Act.
Accordingly, the Tribunal complied with the requirements of Division 4 of Part 7 of the Act. There was no failure to accord procedural fairness to the applicant.
At the hearing the applicant submitted that he had been unable to obtain a Medicare card and that the Tribunal Decision took “a short time”. I am unable to see how the applicant’s inability to obtain a Medicare card is at all relevant to the Application before the Court and the applicant could not further articulate the relevance of this. If it be contended that the Tribunal failed to properly consider the applicant’s case because of the short time it took to provide its reasons, that submission must be rejected. Firstly, the Tribunal hearing was held on 8 January 2018 and its decision was made on 30 April 2018. I find nothing unusually short in this time frame. Secondly, for the reasons set out in relation to Ground 1 above, I consider that the Tribunal did consider the applicant’s claims and evidence and identify no claim or evidence which was not so considered.
Ground 3 therefore also discloses no jurisdictional error on the Tribunal’s behalf.
Finally, for completeness, I identify no error in the Tribunal’s reasoning.
DISPOSITION
For the above reasons, the Application discloses no jurisdictional error on the Tribunal’s behalf.
The Application must therefore be dismissed.
The Minister seeks the applicant pay its costs in the fixed amount to $5,400. I note that this is below scale. I shall order accordingly.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 24 April 2024
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