CMW18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 356

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CMW18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 356

File number(s):

MLG 1329 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 – whether the Tribunal’s decision was affected by apprehended bias – 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), 36(2B)(b), 46(2A), 424AA, 474, 476

Federal Circuit Court Rules 2001 r 44.12

Cases cited:

BDE16 v Minister for Immigration and Border Protection [2019] FCA 816

Craig v South Australia (1995) 184 CLR 163

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v MIMIA [2004] FCAFC

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217

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:

42

Date of hearing:

4 April 2024

Place:

Melbourne

Solicitor for the Applicant:

Self-represented litigant

Solicitor for the First Respondent:

Ms Liddy of Sparke Helmore

The Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 1329 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CMW18

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 15 May 2018 be dismissed.

2.The Applicant pay the First Respondent’s costs fixed in the amount of $5,000.

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

1. Before the Court is an Application filed on 15 May 2018, in which the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 29 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 (subclass 866) visa.

   CONTEXT

2. The applicant is a citizen of Malaysia.

3. On 2 March 2016 the applicant entered into Australia on a UD-601 Electronic Travel Authority visitor visa.

4. On 9 May 2016 the applicant applied for a Protection (subclass 866) visa (First Visa Application). On 15 August 2016 the Department of Immigration and Border Protection (Department) notified the applicant that her First Visa Application was invalid because it did not provide personal identifiers as required by s 46(2A) of the Migration Act 1958 (Cth) (Act).

5. On 10 October 2016 the applicant made a further application for a Protection (subclass 866) visa (Visa) (Second Visa Application). The applicant’s claims were set out in her Second Visa Application. Relevantly, the applicant claimed that:

   (1)her husband had an unstable business and borrowed from an unlicensed money lender;

   (2)the loan sharks were searching for the applicant’s husband and when they could not find him, they went after the applicant to settle the debts;

   (3)she is afraid that her safety would be affected and she would suffer significant harm;

   (4)the loan sharks will torture or take inhuman action or punishment against the applicant and her husband if they could not repay the loan;

   (5)the interest of the debt is too high and her husband cannot pay the loan according to the schedule;

   (6)her life would be at danger. She was at risk;

   (7)the loan sharks always went to the place she was running her business and physically harassed her. They threatened her and “used inhuman treatment and degrading way” in front of her customers. They tried to hit her but someone stopped them during the incident and as a result her business dissolved.

   (8)their networking was all around Malaysia and their members were not scared of the authorities;

   (9)she did not feel safe to stay in Malaysia anymore until she managed to pay the loan in full, plus interest;

   (10)the loan sharks threatened her many times and will hit and endanger her until she settles the loan;

   (11)the authorities could not protect her because she did not file any report. She is scared that if she made a report or sought assistance those loan shark members will create more problems for her and her family; and

   (12)the money lenders networked all around Malaysia and she was scared if she moved to another place they would make more trouble for her family and take inhuman action or punishment if they found her.

6. On 29 December 2016 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 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 she would suffer significant harm as outlined in s 36(2B)(b) of the Act.

7. On 17 January 2017, the applicant applied to the Tribunal for review of the Delegate’s decision.

8. On 18 January 2017 the Tribunal sent the applicant confirmation of receipt of her application. The applicant was advised if she wished to provide material or written arguments for the Tribunal to consider, she should do so as soon as possible. The applicant was also advised of the need to keep the Tribunal updated with regard to her contact details.

9. On 27 September 2017, the Tribunal emailed the applicant inviting the applicant to attend an in-person hearing on 9 November 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.

10. On 9 November 2017 the applicant appeared before the Tribunal and gave evidence with the assistance of an interpreter in the Malay and English languages.

11. On 29 April 2018 the Tribunal affirmed the decision of the Delegate not to grant the applicant the Visa. On 30 April 2018, the Tribunal sent a copy of its decision and reasons to the applicant’s email address.

    TRIBUNAL DECISION

12. The Tribunal issued its statement of decision and reasons on 29 April 2018 (Tribunal Decision).

13. At paragraph [10] of the Tribunal Decision, the Tribunal summarised the applicant’s claims as set out in the First Visa Application.

14. At paragraph [11] of the Tribunal Decision, the Tribunal summarised the applicant’s claims as set out in the Second Visa Application.

15. At paragraphs [12] – [20] and [22] – [28] of the Tribunal Decision, the Tribunal summarised the applicant’s oral claims made at the hearing. Relevantly, the Tribunal recorded the applicant’s oral claims to be as follows:

    (1)she had been married three times, her former husband had two wives and she was the second. Her former husband’s child had hit the applicant and the first wife had threatened the applicant (paragraph [12]);

    (2)she left Malaysia because she had a lot of debt arising out of her restaurant business (paragraph [16]);

    (3)she owed 80,000 ringgit to a Chinese loan shark who charged interest at 50% (paragraph [17]);

    (4)she also had to pay the debt of her second husband (paragraph [19]);

    (5)her family had given her 40,000 ringgit to repay half the debt (paragraph [23]); and

    (6)after she fled her home town of Kelantan she met her third husband, but his family threatened and intimidated her, including his daughter who was a police woman, threatened to plant drugs on the applicant and beat the applicant (paragraph [25]).

16. At paragraph [21] of the Tribunal Decision, pursuant to s 424AA of the Migration Act 1958 (Cth) (Act), the Tribunal put to the applicant discrepancies between the claims lodged in writing and those made orally at the hearing. It was put to the applicant that her oral evidence at the hearing that she had personally incurred the debt differed from her written claims which advanced that her husband/ex-husband borrowed the money from the loan sharks. The applicant responded that while her accounts may have been slightly contradictory, she was the one who had to bear the consequences of the debt because her husband was irresponsible (paragraph [22]).

17. Despite expressing doubts regarding the applicant’s credibility and noting that her evidence was “vague”, at paragraph [37] of the Tribunal Decision, the Tribunal was prepared to accept that: the applicant owes money to loans sharks; she was left to repay some of her former husband’s debt; she will not be able to earn enough in Malaysia to repay the loan quickly enough; she was harassed by loan sharks, but did not go to the police; her ex-husband’s former wife and children ganged up on her; and, her ex-husband’s daughter hit the applicant and threatened to plant drugs on her.

18. At paragraphs [38] – [51] of the Tribunal Decision, the Tribunal considered the applicant’s claim about owing money to loan sharks. The Tribunal accepted that the applicant belonged to a particular social group being “victim of loan shark/s” and therefore accepted that the applicant had a genuine and credible fear of harm on return to Malaysia for a reason mentioned in s 5J(1)(a) of the Act. However, at paragraph [40], with reference to country information, the Tribunal did not accept that the applicant would be denied effective protection from the authorities in Malaysia. Accordingly, the Tribunal found the applicant did not have a well-founded fear of persecution on the basis of her loan shark debt 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.

19. At paragraphs [52] – [54], the Tribunal considered the applicant’s claim in respect of her ability to earn a living in Malaysia. Taking into account the applicant’s work history and supportive family ties in Malaysia, the Tribunal was not satisfied that the applicant would face significant economic hardship such that would threaten her capacity to subsist or that she would face serious harm due to being a mature, single woman on her own. Accordingly, the Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm or a real risk that she would suffer significant harm on return to Malaysia due to any alleged lack of support or ability to find work and found she did not meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Act.

20. At paragraphs [55] – [57], despite not articulating the claim herself, the Tribunal considered any claim which may exist in respect of the applicant’s former husband’s family members harming her. Having regard to the applicant’s current circumstances and lack of attachment to her former husband, the Tribunal did not accept that she faced a real chance of serious harm at his hands if she returned to Malaysia.

21. Accordingly, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia has protection obligations under sub-ss 36(2)(a) or (aa) of the Act. Further, the Tribunal found there was no suggestion that the applicant satisfied s 36(2) of the Act 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 held a protection visa.

    APPLICATION FOR JUDICIAL REVIEW

22. The applicant applied for judicial review of the Tribunal Decision on 15 May 2018.

23. The Application contains the following grounds for judicial review (without amendment):

    The Tribunal did not make its decision according in law in that:

    The Tribunal committed jurisdictional error by taking indoor account irrelevant consideration.

    The Tribunal has made the decision without looking at the evidence of applicant

    The Tribunal just made the decision was made purely on the belief of the member.

    The Hearing

24. The hearing took place on 4 April 2024.

25. The applicant is self-represented and was assisted by an interpreter in the Malay and English languages.

    STATUTORY FRAMEWORK

26. 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’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].

27. 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

    Ground 1

28. By Ground 1 the applicant asserts that the Tribunal erred by taking into account an irrelevant consideration. This ground is entirely unparticularised. This alone is a sufficient basis to dismiss this ground: 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).

29. At the hearing in relation to Ground 1 the applicant submitted that the Tribunal incorrectly concluded that she could return to Malaysia with no difficulty and that the authorities would protect her.

30. These submissions do no more than express disagreement with the Tribunal’s decision and invite the Court to engage in impermissible merits review. Merits review is beyond the jurisdiction of this Court: 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.

31. Ground 1 discloses no jurisdictional error on the Tribunal’s behalf.

    Ground 2

32. By Ground 2 the applicant asserts that the Tribunal made its decision without considering the evidence. This ground is entirely unparticularised. This alone is a sufficient basis to dismiss this ground: WZAVW; BDE16.

33. At the hearing the applicant made submissions in relation to two bridging visa applications, saying that the second bridging visa was filled out with the help of a friend. The applicant submitted that in the first bridging visa she set out her “problems” but the Tribunal only looked at the second bridging visa. As I understand it, following efforts to clarify this submission with the applicant, these submissions are a reference to the First Visa Application and the Second Visa Application. As to the assertion that the Tribunal did not consider the First Visa Application, that must be rejected. It is clear from the Tribunal Decision that it did. At paragraph [10] of the Tribunal Decision, the Tribunal sets out the applicant’s claims as contained in the First Visa Application. At paragraph [21] of the Tribunal Decision, the Tribunal records that it put to the applicant the claims in the First Visa Application and the Second Visa Application, relative to her claims before the Tribunal. At paragraph [23] the Tribunal says:

    The Tribunal noted that in the very first application there had been no mention of loan sharks and she had written that her ex-husband had borrowed from unknown persons. In the second application it was the loan sharks who were chasing her ex-husband through the visa applicant. At hearing she had stated that the loan sharks were pursuing her in relation to her own debts, albeit she had stated that her ex-husband had raised some debt also. The applicant responded that when the debt was incurred they were still married and then the loan was taken out and she used her business as guarantee. All the debt then fell onto her to repay. After she was unable to pay she borrowed from members of her family and right now she was working to pay it all off. Her family gave her 40,000 Ringgit and that is how she paid half of the debt. In Australia she could work and feel safe.

34. Further, if it be asserted that the Second Visa Application was inaccurate or wrong due to it being filled out with the assistance of a friend, this was not before the Tribunal. Additionally, it is not consistent with the explanation provided by the applicant to the Tribunal for the inconsistencies between her written and oral evidence.

35. Ground 2 discloses no jurisdictional error on the Tribunal’s behalf.

    Ground 3

36. Despite being invited to do so, the applicant was unable to further articulate Ground 3. By this ground the applicant appears to simply express disagreement with the Tribunal’s decision and invite the Court to embark on impermissible merits review: Liang.

37. The task of the Tribunal was to consider the application for a protection visa afresh and to determine for itself whether or not it was satisfied that the criteria for the grant of the Visa were met: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [17]. The Tribunal’s decision demonstrates that the Tribunal considered the applicant’s written and oral evidence about her fear of harm from loan sharks in Malaysia and despite her inconsistent and vague evidence accepted these claims. However, having regard to extensive country information the Tribunal was satisfied that the applicant could access effective state protection and therefore did not face any real risk of significant harm. The Tribunal also considered, but did not accept, whether the applicant faced a real chance or risk of serious or significant harm on account of her capacity to support herself and subsist in Malaysia, or at the hands of her former husband’s family. Those findings were open to the Tribunal on the evidence before it.

38. For completeness, if it be contended by Ground 3 that the “belief of the member” amounts to apprehended bias, such an allegation must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J. Further, I do not consider there is anything before the Court which would lead a fair-minded and appropriately informed lay observer to reasonably apprehend that the Tribunal might not bring a fair, impartial and independent mind to the determination of the applicant’s case on its merits: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6].

1. Ground 3 discloses no jurisdictional error on behalf of the Tribunal.

2. Accordingly, none of the grounds advanced by the applicant disclose jurisdictional error on the Tribunal’s behalf.

   DISPOSITION

3. For the above reasons, the Application must be dismissed.

4. The Minister seeks that the applicant pay costs in the fixed amount of $5,000. I note that this is considerably below scale and shall order accordingly.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young.

Associate:

Dated:       24 April 2024