CPM16 v Minister for Immigration and Border Protection
[2017] FCA 1475
•22 November 2017
FEDERAL COURT OF AUSTRALIA
CPM16 v Minister for Immigration and Border Protection [2017] FCA 1475
Appeal from: CPM16 & Anor v Minister for Immigration & Anor [2017] FCCA 987 File number: NSD 869 of 2017 Judge: O'CALLAGHAN J Date of judgment: 22 November 2017 Date of publication of reasons: 7 December 2017 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia – whether primary judge erred by not holding that the decision of the Administrative Appeals Tribunal was unreasonable – whether primary judge erred by not holding that the Administrative Appeals Tribunal misconstrued or misapplied relevant law – whether primary judge erred by not holding that the Administrative Appeals Tribunal erred by failing to consider s 91R of the Migration Act 1958 (Cth) – whether primary judge erred by otherwise not considering legal and factual errors made by the Administrative Appeals Tribunal – appeal dismissed Legislation: Migration Act 1958 (Cth), ss 36(2)(a) and (aa), 91R Date of hearing: 22 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Counsel for the First Appellant: The first appellant appeared in person Counsel for the First Respondent: Mr M Wiese Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: Second Respondent filed a submitting notice save as to costs ORDERS
NSD 869 of 2017 BETWEEN: CPM16
First AppellantCPO16
Second Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
O'CALLAGHAN J
DATE OF ORDER:
22 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from transcript)O’CALLAGHAN J:
The appellants appeal from an order of a judge of the Federal Circuit Court of Australia (FCCA) made on 15 May 2017, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 18 August 2016. The Tribunal affirmed a decision of the delegate of the Minister refusing to grant the appellants’ Protection (Class XA) visas (the protection visas) under s 65 of the Migration Act 1958 (Cth) (the Act). The first appellant is the father of the second appellant. They last entered Australia on 22 October 2009 and 2 February 2011, respectively. They applied for the protection visas on 4 June 2014. The second appellant applied in his capacity as a member of the family unit of the first appellant.
CLAIMS
The first appellant claimed that, if he returned to Malaysia, he would face intimidation, harassment and physical harm from moneylenders seeking a satisfaction of unpaid debts. He claimed that he was originally in the family limestone business. In mid-2007, that business began to suffer and, in early 2008, the first appellant and his brother opened a Chinese restaurant in Malaysia. The restaurant proved expensive to establish, and it was necessary for the first appellant and his brother to obtain a loan to maintain the business. The brothers decided that the first appellant would obtain the necessary finance because “he had the connections”.
The first appellant approached private moneylenders to obtain a loan. He claimed that an initial loan was obtained for $50,000 at an interest rate of 20 per cent per week. As the interest payments ballooned, the first appellant claimed that he approached other moneylenders, 10 in total, for ever-increasing loans to cover the amounts owed to prior moneylenders. The level of debt became unsustainable and the moneylenders began pursuing the first appellant for payment. The first appellant claimed that he faced repeated harassment and threats from the moneylenders. His claims included that he was forced into a van and told to repay the money or he would be killed, and that he was summoned to the house of someone called “the boss”, who demanded payment of moneys outstanding. Soon after, the first appellant came to Australia believing that he was no longer safe in Malaysia.
The first appellant claimed that the moneylenders continued to harass, follow and threaten his remaining family in Malaysia and to disrupt the business of the restaurant. In particular, he claimed that individuals representing a named trading company went to the restaurant demanding payment of moneys; that red paint was repeatedly thrown at the restaurant; that restaurant customers were threatened and abused; that men went to the house of the first appellant’s mother and demanded payment for the debts; that a man named Mr Chan called the restaurant claiming he had been paid $100,000 to destroy the restaurant and demanded $50,000 to avoid this outcome; that three men approached the first appellant’s then-wife threatening to kill the first appellant and abduct her child; and that, on two or three occasions, the first appellant’s brother observed moneylenders waiting in front of the second appellant’s university and that this stalking motivated the second appellant also to flee to Australia. Before the Tribunal, the first appellant also claimed to fear harm from the Malaysian authorities due to his status as a failed asylum seeker.
TRIBUNAL’S DECISION
The Tribunal found that the first appellant’s claims suffered from what it called “numerous and significant credibility problems”. The Tribunal said that it did not believe any substantive aspect of the first appellant’s claims. In particular, the Tribunal said that it was not satisfied that there were unpaid moneylenders who had threatened the first appellant or his family. The Tribunal found that neither the first appellant nor the second appellant was owed protection obligations under either s 36(2)(a) or (aa) of the Act. The Tribunal also considered the first appellant’s claim to face harm in Malaysia due to his status as a failed asylum seeker. The Tribunal found that neither the first nor the second appellant were likely to face any adverse attention from the Malaysian authorities upon their return.
PRIMARY JUDGE’S DECISION
Before the FCCA, the appellants raised three grounds of review. In summary, the grounds were as follows.
(1)Ground 1: the Tribunal erred by not engaging in an active intellectual process when considering the appellants’ documentary evidence.
(2)Ground 2: the Tribunal erred by misconstruing the statutory test for significant harm as set out in s 36(2A) of the Act, and the Tribunal erroneously and narrowly construed the existence of the risk of harm to the appellants and their fear of that harm.
(3)Ground 3: the Tribunal did not comply with s 424A of the Act.
The primary judge dismissed each of the three grounds of review. In respect of ground 1 the primary judge found that the Tribunal’s findings, including its adverse credibility findings, were reasonably open to it. The judge also found that the weight placed upon the evidence was a matter for the Tribunal and that the reasons of the Tribunal did not reveal any relevant error. In respect of ground 2 the primary judge found that the Tribunal had correctly identified the relevant law and that its findings were consistent with the application of that interpretation. As to ground 3, the primary judge found that none of the information considered by the Tribunal enlivened s 424A of the Act. The primary judge accordingly dismissed the appellants’ application for judicial review.
THE APPEAL
In this Court, the appellants have raised two different grounds of appeal in their notice of appeal. The grounds are as follows (errors in original):
1.The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicant claim and ignoring the aspect of persecution and harm in terms of Sec.91 R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.
2.The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.
I should say that I take the reference to the “FM” in the first ground of appeal to be a reference to the primary judge.
The appellants have chosen not to file written submissions. When I asked the first appellant, who appeared unrepresented this morning in this matter assisted by an interpreter, if he wished to say anything in support of his appeal, he said that all of the details he had provided to the first respondent’s department were true, that he did not lie at all and that he hoped that the first respondent’s department could reconsider his application for a protection visa. The first appellant also said that his brother had told him that he was not given the opportunity to give evidence about the moneylenders to the Tribunal. He also said that he would face harm if he went back to Malaysia and that it was because of the possibility of that harm that he brought his two sons to this country.
The Minister submits that ground 1 in the notice of appeal is misconceived and must fail for five reasons.
First, the Minister submits that this ground of appeal was not raised before the primary judge and that the appellants should not be permitted to raise a new ground on the hearing of this appeal, because the ground is without merit. In that regard the Minister refers to the decision in Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22]-[24]. The Minister also submits that, because the appellants have given no explanation for not raising the claim before, for that reason alone they should not be permitted to raise it now.
Secondly, the Minister submits that the first ground of appeal is not particularised and does not identify any basis for establishing jurisdictional error.
Thirdly, the Minister contends that the primary judge did, in fact, consider the reasonableness of the Tribunal’s findings in respect of s 36(2)(a) of the Act. The Minister in particular relied on [17] and [21], respectively, of the primary judge’s reasons. At [17], the primary judge said:
From the bar table the first applicant asserted that everything he had told the Tribunal was true and complained about the adverse credibility findings. The adverse credibility findings by the Tribunal were open on the material before the Tribunal for the reasons given. The reasons were rational and logical. No jurisdictional error is identified by reason of those adverse credibility findings.
At [21], the primary judge said:
It was not unreasonable for the Tribunal to use the inconsistencies in assessing the first applicant’s credit. On the face of the material before the Court, there was no denial of procedural fairness to the applicants in that regard. Nothing said by the applicants from the bar table identified any jurisdictional error.
Fourthly, the Minister contends that, insofar as ground 1 may be taken to allege that the Tribunal misconstrued or misapplied the relevant law, that assertion was addressed and properly dismissed by the primary judge.
Finally, the Minister submits that the then applicable version of s 91R of the Act, which provided a non-exhaustive definition of the term “serious harm”, was wholly irrelevant to any consideration of the appellants’ case before the Tribunal, because the Tribunal wholly rejected the first appellant’s case that he would suffer harm, should he return to Malaysia. It follows, that no occasion arose for it to consider that provision.
I accept each of those submissions.
In my view, ground 2 is also entirely without merit. The appellants have made no attempt to explain what legal and factual errors are said to be contained in the Tribunal’s decision and which the primary judge ought to have considered. Absent any attempt to do so, the second ground of appeal must fail. In any event, as the Minister submitted, on any reading of the primary judge’s reasons, the primary judge dealt with the grounds raised at first instance by the appellants and considered their oral submissions.
For the foregoing reasons the Court orders that:
(1)the appeal be dismissed;
(2)the appellants pay the first respondent’s costs, as agreed or assessed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Callaghan. Associate:
Dated: 7 December 2017
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