CRP18 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 770

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CRP18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 770

File number:

MLG 1427 of 2018

Judgment of:

JUDGE SYMONS

Date of judgment:

22 August 2024

Catchwords:

MIGRATION – application for review of a decision of the Administrative Appeals Tribunal – where applicant alleged fear of harm from money lenders in home country - where Tribunal accepted applicant had a genuine and credible fear of harm for the purposes of s 5J(1) of the Migration Act 1958 (Cth) but that effective protection measures would be available to the applicant in the receiving country– where applicant alleged that Tribunal misunderstood his evidence – where mistake of fact did not flow into dispositive findings - no jurisdictional error established – application dismissed with costs

Legislation:

Migration Act 1958 (Cth), ss 5J(1), 5J(2), 36(2), 36(2A), 36(2B), 425, 425A, 426A, 499

Cases cited:

Acuna Plaza v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) (2019) 164 ALD 258; [2019] FCA 424

Minister for Immigration and Citizenship v SZNCR [2011] FCA 369

Minister for Immigration & Multicultural and Indigenous Affairs v SCAR (2003) 198 ALR 293; [2003] FCAFC 126

Division:

Division 2 General Federal Law

Number of paragraphs:

56

Date of last submissions:

20 August 2024

Date of hearing:

20 August 2024

Place:

Melbourne

The applicant:

In person

Solicitor for the first respondent:

Ms M Baras-Miller of the Australian Government Solicitor

ORDERS

MLG 1427 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CRP18
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE SYMONS
DATE OF ORDER:	22 AUGUST 2024

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.

2.The application for judicial review filed on 24 May 2018 be dismissed.

3.The applicant pay the first respondent’s costs fixed in the amount of $3,100.

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 SYMONS:

INTRODUCTION

1. By an application filed on 24 May 2018, the applicant seeks judicial review of a decision of the second respondent (Tribunal) dated 30 April 2018, to affirm a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection (subclass 866) visa (visa). The Minister opposes the application.  The Tribunal enters a submitting appearance, save as to costs, and has not participated in the proceeding.

   BACKGROUND

2. The applicant is a citizen of Malaysia who arrived in Australia on 5 September 2016 as the holder of an Electronic Travel Authority visa (CB 23, 52).

3. On 24 November 2016, the applicant made the application for the visa. In part C of his application the applicant identified his reasons for claiming protection as follows (CB 41-43):

   (a)He borrowed money from a money lender who he could not pay back

   (b)The money lender created a story, telling everyone that the applicant took his money and would not pay it back.

   (c)The money lender bullied him badly, beat him and wants to kill him.

   (d)If returned to Malaysia, the money lender will kill him

   (e)His friends and family are scared to help him.

   (f)He cannot relocate elsewhere in Malaysia as the money lender will easily find the applicant because the money lender has political support and police support.

4. On 6 March 2017, a delegate of the Minister made a decision to refuse to grant the applicant the visa (CB 49- 64). The delegate was not satisfied that the harm identified by the applicant was for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Migration Act 1958 (Cth) (the Act) with the result that the applicant was unable to satisfy the criterion in s 36(2)(a). The delegate also found that the applicant would receive effective protection from the Royal Malaysian Police (RMP).

5. On 20 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision (CB 65 -66).

6. On 4 October 2017 the Tribunal sent the applicant an invitation to attend a hearing on 23 November 2017 (CB 71-72).

7. On 23 November 2017 the applicant appeared before the Tribunal to give evidence and present arguments (CB 73-75).   The applicant communicated with the Tribunal using English.

8. On 30 April 2018, the Tribunal affirmed the decision of the delegate and published a written statement of decision and reasons (Reasons) (CB 77-88).

   THE DECISION OF THE TRIBUNAL

9. After setting out the procedural background to the review application, the Tribunal identified the criteria for a protection visa and noted that it was required to have regard to Ministerial Direction No.56 made under s 499 of the Act, which required it to take account of policy guidelines prepared by the Department (PAM3) and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent they were relevant to the decision under consideration (Reasons, [5-][10]).

10. The Tribunal summarised the applicant’s claims as they appeared in his visa application (Reasons, [15]).

11. The Tribunal identified the evidence given by the applicant during the Tribunal hearing, including that (Reasons, [20]-[25]):

    (a)In around March 2016, the applicant borrowed RM $30.000.00 from the money lender known as “C” to help his brother establish a scrap metal business.  As part of the loan, the applicant was required to pay the money lender interest at a rate of RM $1,500.00 per month which was to be funded from the brother’s business. The Tribunal noted that the applicant did not provide any documentary evidence of the loan and neither did he provide any documentary evidence of the brother’s business or of the money being advanced by him to his brother.

    (b)His brother failed to make the interest payments as agreed and closed the business after a short period of time. The applicant made the interest payments from March to May 2016.  The Tribunal noted that the applicant did not provide any evidence of payment of the interest by him.

    (c)From May to September 2016, the applicant was unable to make any further interest payments on the loan because his father had become ill, and he had to provide money for his care as his brothers and sisters could not.

    (d)The money lender began calling the applicant and asking for payment, using bad language toward him and threatening to physically harm or even kill him if he did not pay the money. The applicant confirmed, however, that he was not physically harmed.

    (e)The applicant had applied for jobs in both Malaysia and Singapore but was unsuccessful. He told the Tribunal he could not relocate to another part of Malaysia to work because his salary would not be enough to pay back the lender.

    (f)He told the Tribunal that he came to Australia to get away from the money lender and because he was able to get a job with better pay.

12. The Tribunal referred to country information with respect to illegal money loaning or loan sharking (known as “Ah Long”) in Malaysia, including that:

    (a)In October 2013, it was reported that there had been a rise from the previous year in the number of Malaysian citizens in debt to loan sharks and that police were powerless except in circumstances where loan sharks resorted to violence or extortion to recover their money (Reasons, [26]-[28]).

    (b)Various media reports indicated that illegal money lending was “widespread” in Malaysia (Reasons, [29]).

    (c)There have been numerous police operations targeting Ah Long and the media on the issue indicated (Reasons [30]-[39]):

    (i)“the police are very concerned” about the issue;

    (ii)there has been a “concerted effort to address illegal money lending”;

    (iii)that “they [the police] appear to have targeted money lenders and associated criminal gangs’; and

    (iv)there was ‘no need to fear loan sharks’ as they are ‘not immune from the law”.

13. The Tribunal then had regard to the DFAT Country Information Report in considering law enforcement entities and the legal system in Malaysia. The information stated that the RMP was considered to be “a professional and effective police force” (Reasons, [40]).

14. The Tribunal noted, including by reference to the DFAT Report, that the country information indicated that the Malaysian authorities including the police and the judiciary were “reasonably effective in combatting criminal gangs” (Reasons, [44]).

15. The Tribunal then turned to its assessment of the applicant’s credibility.

16. The Tribunal noted that it had taken into account the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety and stress caused by separation from home and family. The Tribunal observed that the benefit of the doubt should be given to an applicant who was generally credible but unable to substantiate all of his or her claims (Reasons, [45]).

17. The Tribunal also acknowledged that vulnerable asylum seekers will have difficulties in providing documents or expressing their fears. However, the Tribunal observed that in this case, the applicant provided plausible and compelling and persuasive answers to the Tribunal’s questions about the money lender. The Tribunal was prepared to accept, and made a finding that, the applicant borrowed money from a money lender known as “C” who threatened and harassed the applicant (Reasons, [49]).

18. The Tribunal found that the applicant had a subjective fear regarding the money lender including that in the event he was returned to Malaysia he would again be threatened and abused by representatives of the money lender (Reasons, [50]).

19. The Tribunal found that the applicant was a member of a particular social group, namely a person who has borrowed money from a money lender, and was satisfied that he had a genuine and credible fear of harm for the purposes of s 5J(1)(a) if returned to Malaysia. Having accepted there was a real chance of serious harm for the claimed reasons, the Tribunal went on to consider whether the applicant had access to effective protection measures as a victim of a money lender by operation of s 5J(2) of the Act. The Tribunal said at [52]-[53]:

    The applicant said that he had not reported the matter to the police because he thought it would make matters worse for him. However, the applicant did not identify any reason why he would be denied the protection by the police by reason of his race, religion, nationality, membership of a particular social group or political opinion. The country information, in particular the DFAT report, notes that ‘credible local and international sources consider the Royal Malaysian Police to be a professional and effective police force.’ Therefore in this case, the Tribunal does not accept that the applicant will be denied effective protection measures. While the Tribunal accepts that money lenders are widespread in Malaysia, based on the available country information, the Tribunal does not accept that the activities of loan sharks are so extensive that the applicant will be denied effective protection measures.

    When considering the operation of s.5J(2) alongside the available country information, the Tribunal is satisfied that effective protection measures are available to the applicant in the receiving country. The Tribunal finds that that the effective protection measures are able to be provided to the applicant by the State and that the State is able and willing to provide such protection. The applicant is able to access the available protection and the protection provided is durable. From the available country information the Tribunal finds that Malaysia has an appropriate system of criminal law, that the police force is effective and that it has an impartial judicial system. Therefore, by operation of s.5J(2) and s.5LA, the applicant does not have a well-founded fear of persecution as victim of a loan shark or any related claim or any other reasons mentioned in s.5J(1)(a).

20. Accordingly, the Tribunal found that the applicant did not meet s 36(2)(a).

21. The Tribunal also considered whether the applicant’s claims engaged s 36(2)(aa) of the Act. The Tribunal accepted that as a result of being a victim of a loan shark, the applicant did have a risk of harm that included severe physical violence and ill-treatment and that this harm would amount to significant harm for the purposes of ss 36(2A)(c) and (d). However, based on its earlier findings that effective protection measures would be available to the applicant, the Tribunal found that there was not a real risk of the applicant suffering significant harm on return to Malaysia. The Tribunal found the applicant did not satisfy s 36(2)(aa) on this basis.

    APPLICATION FOR JUDICIAL REVIEW

22. On 24 May 2018, the applicant filed his application seeking judicial review of the Tribunal decision. The application identified the following grounds of review reproduced without alteration:

    1.The tribunal member was confused me.

    2.And repeat a same questions so many times.

    3.I was stress and unable to answer all questians

    4.The tribunal member was failed to consider whether it would be reasonable for me to relocate in my country.

    5.If I return to Malaysia I would be in constant fear of suffering harm as a my former money lender.

    6.The member was not given a time to me to provide a supporting documents.

    7.I was not enough time to arrange the prove as well.

    8.The member was not believe the story that I was tell them.

23. On 23 May 2024, a Registrar made procedural orders including that the applicant file and serve at least 28 days before the final hearing, any amended application with proper particulars of the grounds of application, any supplementary court book and written submissions, on which he seeks to rely.  The following notations to the orders were made:

    A.       The applicant confirmed that he had retained his copy of the court book;

    B. The first respondent’s solicitor will email the applicant a copy of the audio recording of the Tribunal hearing; and

    C. The Court explained that if the applicant wished to prove the contentions in his application for judicial review that the Tribunal “confused” him and “repeat a question so many times” then applicant would need to adduce evidence in the form of a transcript of the Tribunal hearing.

24. The applicant did not file any material pursuant to these orders.  In particular, he did not produce any evidence in the form of a transcript.

25. On 5 August 2024, the Minister filed written submissions.

26. At the hearing on 20 August 2024, the applicant appeared in person, with the assistance of an interpreter in the Tamil and English languages. The Minister was represented by solicitor advocate, Ms Baras-Miller.

27. At the outset of the hearing, I established that the applicant and the interpreter understood one another, that the applicant had a copy of his application, and that he received ahead of the hearing a copy of the Minister’s written submissions filed on 5 August 2024.

    GROUNDS ONE, TWO AND THREE

28. As to grounds one, two and three, the applicant alleges that he was stressed and confused during the hearing and unable to answer all of the Tribunal’s questions.   

29. When invited to elaborate on these grounds at hearing, the applicant repeated the contention that he was anxious and confused and said that the Tribunal had asked a series of questions but did not listen properly to his responses.   The applicant told the Court that whereas the Tribunal had recorded a finding that he had not suffered any physical harm from a money lender, in fact the applicant had told the Member that he had been the victim of serious physical assault.

30. The applicant told the Court that he had listened to the audio of the Tribunal hearing and at the approximately 40-minute mark he had given evidence about the physical assault at the hands of a money lender.   The Tribunal had misunderstood this evidence according to the applicant.

31. Although the applicant had not produced a transcript of the Tribunal hearing, in circumstances where he appeared without representation, I stood the matter down briefly to make arrangements for the audio of the Tribunal hearing, at the point identified by the applicant, to be played in open court. 

32. This occurred however while it was possible to hear the Tribunal member clearly, the audio of the applicant speaking was very poor and as I indicated to the applicant at the time, I was not able to make out what he had said by way of response to the Tribunal member’s questions. 

33. The applicant maintained that he had told the Tribunal that he had sustained injuries as a result of an assault by a money lender.

34. The Minister submitted that in the absence of a transcript or audible record of the applicant’s evidence at hearing, the Court should prefer the Tribunal’s account of the applicant’s evidence as documented in the Reasons at [24]. In this passage, the Tribunal recorded that “despite the money lenders threats, the applicant confirmed that he was not physically harmed”.

35. The Minister submitted that even if the Court was to accept the applicant’s account, any error by the Tribunal as to its understanding of the applicant’s evidence did not go to jurisdiction because the finding had not been “carried into the decision, flowed into the decision or affected the decision in a not immaterial way” (referring to Acuna Plaza v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2019] FCA 424 at [17]). This was because the Tribunal’s dispositive finding was that the harm feared by the applicant would likely not eventuate given that there were effective protection measures available to him in Malaysia.

36. The Minister submitted that there was nothing before the Court to indicate that any stress or confusion the applicant experienced during the hearing reached a level where he was so unfit to attend that he was deprived of a meaningful opportunity to present his case (citing Minister for Immigration & Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; Minister for Immigration and Citizenship v SZNCR [2011] FCA 369). To the contrary, the Minister submitted that the Tribunal’s reasons disclosed that at the Tribunal hearing the applicant was able to meaningfully expand on his protection claims and provided “plausible and compelling and persuasive answers” to its questions (see [17] above).

37. I am prepared to accept that the applicant did give evidence at the Tribunal hearing to the effect that he had been physically assaulted by a money lender.  It is entirely plausible that this evidence was misunderstood by the Tribunal member, given the difficulty the Court experienced in making sense of what the applicant said when listening to the audio recording.  It is also the case that evidence of physical assault is consistent with the early articulation of the applicant’s claims in his protection visa application (refer [3(c)] above).

38. However, I accept the Minister’s submission that factual error in this case does not translate to jurisdictional error. Although the Tribunal did not find evidence of past physical mistreatment, it did accept that the applicant had a subjective fear of harm at the hands of money lenders (or their representatives) and that the apprehended harm had a Convention nexus. The claim failed, not because of any factual error, but because the Tribunal found that the applicant would have available to him effective protection measures in Malaysia. The finding meant that the applicant was unable to satisfy both ss 36(2)(a) and 36(2)(aa) of the Act.

1. I am otherwise not satisfied that the applicant was deprived of a meaningful hearing, despite any nervousness he might have experienced. The Tribunal indicated that it was cognisant of difficulties experienced by persons in the position of the applicant and in fact gave the applicant the “benefit of the doubt” when it found that he had borrowed money from a money lender and had been threatened and harassed by this individual (Reasons, [49]).

2. I am not satisfied that there was any error or unfairness in the manner that the Tribunal communicated with the applicant.   Grounds one, two and three are dismissed.

   GROUND FOUR

3. By ground four, the applicant challenges the Tribunal’s consideration (or lack thereof) of the reasonableness of relocation elsewhere in Malaysia.   At hearing, the applicant told the Court that the Tribunal should have asked him whether he could relocate to somewhere else in Malaysia (apart from Kuala Lumpur) or to another country, such as Singapore.

4. The Minister submitted, and I accept, that in circumstances where the Tribunal found that the RMP could effectively protect the applicant from physical harm, it was unnecessary for the Tribunal to consider whether it would be reasonable for the applicant to relocate elsewhere in Malaysia.

5. Section 36(2B) of the Act provides that there is taken not to be a real risk that a non-citizen will suffer significant harm if the Minister is satisfied that:

   (a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

   (b)the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

   (c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

6. The Tribunal found that the applicant could obtain protection from the RMP of a kind that engaged s 36(2B)(b) of the Act. There was no necessity in these circumstances for the Tribunal to consider the question of relocation because this finding had the effect (without more) that the applicant was unable to satisfy the criterion for a protection visa set out in s 36(2)(aa) of the Act.

7. For this reason, ground four is without merit.

   GROUND FIVE

8. By ground five the applicant repeats his claims to fear harm in Malaysia from the money lender.

9. The Minister submitted that this ground invited the Court to engage in impermissible merits review of the Tribunal’s decision and I accept this characterisation.

10. Ground five is dismissed.

    GROUND SIX AND SEVEN

11. As to grounds six and seven, the applicant alleges that he was not afforded sufficient time to present his case to the Tribunal.  However, at hearing the applicant acknowledged that he did have sufficient time and opportunity to present his case.

12. The Minister submitted that the Tribunal complied with its obligation under s 425 of the Act to invite the applicant to a hearing of his application. The hearing invitation complied with the relevant procedural and content requirements under s 425A of the Act by: a) putting the applicant on notice of the date, time and place of the hearing; b) being given to the applicant via the correct method, namely, the email address he had provided; c) giving notice in excess of seven weeks of the hearing date, which was more than what was required under the Migration Regulations 1994 (Cth); and d) by describing the consequences of a failure to appear under s 426A of the Act.

13. The Minister submitted that the hearing invitation also informed the applicant that he could provide any additional information he wanted the Tribunal to consider. The applicant did not avail himself of that opportunity, request an extension of time in which to do so, or otherwise seek any adjournment.

14. I consider, having regard to the Minister’s submissions which I accept, and the concession made by the applicant at hearing in relation to this ground, that it does not establish jurisdictional error.

    GROUND 8

15. By this ground the applicant alleges that the Tribunal did not believe the applicant’s evidence.

16. The Minister submitted that this ground involved impermissible merits review and for this reason it could not succeed. Taken at its highest, if this ground was understood to be an attack on the Tribunal’s assessment of the applicant’s credibility, the Minister submitted it was without merit because the Tribunal accepted the factual basis for the applicant’s claims to fear harm and it did not make any adverse findings about the applicant’s credibility.

17. I accept the Minister’s analysis of this ground.  The Tribunal, despite an absence of documentary evidence, accepted as credible and plausible the applicant’s account of being pursued by a money lender in Malaysia.  The Tribunal’s dispositive finding instead reflected the view taken that country information, to which extensive reference was made, suggested that effective protection measures would be available to the applicant in Malaysia.

    ORDERS

18. The applicant has not established jurisdictional error in the decision of the Tribunal.  It follows that his application seeking judicial review should be dismissed and an order made that the applicant pay the Minister’s costs in a fixed amount.

I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons .

Associate:

Dated:       22 August 2024