CNZ18 v Minister for Home Affairs

[2018] FCCA 3028

FEDERAL CIRCUIT COURT OF AUSTRALIA

CNZ18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3028

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection (Class XA) visa – whether the Tribunal identified logical and rational reasons in support of the adverse credibility findings – whether the adverse findings were open to the Tribunal – whether the Tribunal complied with its statutory obligations – whether the Tribunal complied with the requirements of procedural fairness – invitation to this Court to engage in impermissible merits review – no arguable case of jurisdictional error is made out – amended application dismissed under r 44.12 of the Federal Circuit Court Rules.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12

Migration Act 1958 (Cth), ss.5J, 36, 476

Applicant: CNZ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1378 of 2018

Judgment of: Judge Street

Hearing date: 25 October 2018

Date of Last Submission: 25 October 2018

Delivered at: Sydney

Delivered on: 25 October 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Ms A Davyskib
MinterEllison

ORDERS

1. The amended application is dismissed under r 44.12 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

DATE OF ORDER: 25 October 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1378 of 2018

CNZ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 30 April 2018 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Malaysia and his claims were assessed against that country. The applicant arrived in Australia on 11 February 2017 as the holder of an Electronic Travel Authority visa and applied for protection on 28 April 2017.

3. The applicant claimed to fear harm by reason of having borrowed money from a loan shark and to have been unable to repay it within the prescribed period. The applicant fears the loan shark will maim or kill him if he returns to Malaysia before paying off the debt. On 10 August 2017, the delegate found the applicant had failed to meet the criteria for the grant of a Protection (Class XA) visa.

4. The applicant applied to the Tribunal for a review on 10 August 2017. The applicant was invited to, and attended, a hearing on 17 January 2018, which invitation was sent by letter dated 24 November 2017. The applicant appeared on that date to give evidence and present arguments.

5. The Tribunal identified the background to the application of the visa and summarised the applicant’s claims and evidence. The Tribunal found there was a marked difference between the applicant’s written claims in relation to his general living costs in Malaysia and his borrowings to meet his daily expenses, and his claims at the hearing, which concerned a car importation scheme and a speculative loan. The Tribunal referred to the application completed by the applicant and found it to contain incomplete and incorrect information.

6. The Tribunal found at hearing that the applicant gave starkly different accounts of the circumstances that led to his indebtedness. The Tribunal raised with the applicant its concerns in relation to the difference in his evidence in relation to his borrowing from the loan shark and was not satisfied that the applicant adequately explained those differences.

7. The Tribunal found the applicant’s claims to be lacking in the kind of detail that would indicate he was drawing on personal lived experience. The Tribunal did not accept the applicant borrowed money from a loan shark, whether to repay a bank loan, as originally claimed, or to import a cloned car into Malaysia. The Tribunal did not accept the applicant fell behind in his repayments, that the loan shark or his agents harassed, threatened or otherwise harmed the applicant, or that he lives in fear in Malaysia.

8. The Tribunal did not accept that the applicant fled Malaysia fearing persecution or significant harm from a loan shark, taking into account the adverse credibility findings, and the applicant’s unhurried departure from that country. The Tribunal did not accept that the applicant fears that he is at risk throughout Malaysia because he has dealings with a loan shark who has spies throughout the country.

9. The Tribunal found that there was no real chance of a loan shark, or any other creditor, targeting the applicant and trying to seriously harm or significantly harm him if he returns to Malaysia. The Tribunal did not accept that the applicant is a person who is under pressure from a loan shark, and fears that he might become suicidal.

10. The Tribunal was not satisfied the applicant faces a real chance of persecution for a s 5J(1) of the Act for any reason. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

11. The Tribunal was not satisfied that there are substantial grounds of believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk the applicant will suffer significant harm. The Tribunal found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

12. These proceedings were commenced on 16 May 2018. On 7 June 2018, the Registrar made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions.

The grounds

1. The applicant did file an amended application which identifies the following grounds:

   1. The decision were made with jurisdictional errors.

   2. The decisions were made without concrete proves.

   3. I was requested to send an appeal to Administrative Appeals Tribunal for consideration on my application.

   4. I am under a house rental agreement for 1 year term that is going to end by February 2019.

   5. I am the breadwinner of my family and my wife is currently pregnant.

   6. I need to save some money before I go back to Malaysia because I have to settle all the debts.

   7. I am begging for your consideration to allow me to stay for another several years so that I can earn and save some money for my family. Your consideration is much appreciated and thank you for your kind attention.

2. At the time, the Registrar fixed the matter for hearing it was a hearing under r 44.12 of the Federal Circuit Court Rules2001 (Cth). At the commencement of the hearing the Court explained to the applicant the nature of the show cause hearing and the applicant confirmed he understood the explanation given by the Court. From the bar table, the applicant put no submissions.

Ground 1

1. Ground 1 is a bare assertion of jurisdictional error and, unparticularised, is incapable of identifying any arguable case of relevant legal error. No arguable case of jurisdictional error is made out by ground 1.

Ground 2

1. Ground 2 is an assertion of disagreement with the adverse findings by reference to concrete proofs. It was a matter for the applicant to satisfy the Tribunal that the applicant met the criteria.

2. The Tribunal identified logical and rational reasons in support of the adverse credibility findings as summarised above, which included the inconsistencies in the applicant’s evidence and the casual approach by the applicant to the application for protection. The adverse credibility findings by the Tribunal cannot be said to lack an evident and intelligible justification. No arguable case of jurisdictional error is made out by ground 2.

Ground 3

1. Ground 3 merely asserts what occurred in relation to the review application and discloses no arguable case of jurisdictional error. No arguable case of jurisdictional error is disclosed by ground 3.

Ground 4

1. Ground 4 identifies the applicant’s rental position, but does not identify any basis upon which there could be said to be any jurisdictional error, or any argument of jurisdictional error. Ground 4 fails to identify any arguable case of jurisdictional error.

Ground 5

1. Ground 5 refers to the applicant’s wife being pregnant, but again, fails to identify any argument in support of the Tribunal’s decision being affected by relevant legal error.

2. To the extent that the applicant is referring to his current circumstances, this Court does not have power to review the decision on its merits. This Court is confined to considering whether the Tribunal’s decision was affected by relevant legal error. Ground 5 fails to identify any arguable case of jurisdictional error.

Ground 6

1. Ground 6 refers to the applicant’s desire to save money before returning to Malaysia and does not identify any arguable case of jurisdictional error.

2. The Tribunal considered the applicant’s claims and made adverse findings in respect of the applicant’s claim to fear harm from a loan shark. That adverse finding was open to the Tribunal for the reasons given by the Tribunal as summarised above. No arguable case of jurisdictional error was made out by ground 6.

Ground 7

1. In relation to ground 7, this Court does not have power to decide the matter on compassionate or discretionary grounds. There is no power in the Court to reconsider the applicant’s application, or make fresh findings in relation to the applicant’s case because of his family position. The Court simply does not have power to do so. No arguable case of jurisdictional error is disclosed by ground 7.

Conclusion

1. The Court finds the amended application fails to disclose any arguable case of jurisdictional error. The Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Federal Circuit Court Rules2001.

2. Accordingly, the amended application is dismissed under r 44.12 of the Federal Circuit Court Rules2001.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 7 December 2018