CSY21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 891
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CSY21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 891
File number(s): MLG 2045 of 2021 Judgment of: JUDGE STREET Date of judgment: 3 August 2023 Catchwords: MIGRATION - protection visa – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) Division: Division 2 Family Law Number of paragraphs: 33 Date of hearing: 3 August 2023 Place: Perth Applicant: Appeared in person Solicitors for the Respondent: Sparke Helmore ORDERS
MLG 2045 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CSY21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
3 AUGUST 2023
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent’s costs fixed in the amount of $6,500.
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
EX TEMPORE REASONS FOR JUDGMENT 3 AUGUST 2023
JUDGE STREET
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 an oral decision of the Administrative Appeals Tribunal made on 15 July 2021 and provided in writing on 11 August 2021 within the 14-day period of the request for the written reasons under s 430D of the Act.
The applicant is a citizen of Malaysia and was born on 21 November 2000.
The applicant arrived in Australia on an electronic travel authority visa on 15 April 2016. At that stage the applicant was only about 15. It was not until 7 April 2017 that the applicant applied for a protection visa.
In the protection visa the applicant suggested that his stepfather would find him and that he was scared of his stepfather.
Before the delegate, the applicant identified that the protection visa had been completed by an agent and that his real claims were to fear harm because of his family having financial difficulties and that he fears returning to Malaysia because he will face financial hardship.
The delegate found the applicant failed to meet the criteria for the grant of a protection visa in his decision dated 30 June 2017.
On 10 July 2017 the applicant applied to the Tribunal for review. The Tribunal complied with its statutory obligations and invited the applicant to attend, in fact, three hearings. One of the hearings on 1 July 2021 had to be abandoned.
The applicant attended before the Tribunal on 14 June 2021 and on 15 July 2021 to give evidence and present his claims. The Tribunal raised with the applicant his failure to earlier apply for a protection visa and confirmed the applicant’s claims were as identified by the delegate. The applicant confirmed that the delegate had correctly identified his claims and asserted that he was contributing financially to repay those family debts.
The applicant identified that he feared returning to Malaysia because he would have difficulty surviving because he would not have a source of income.
The Tribunal raised with the applicant that the tourist visa, on which he arrived, was one that had no work rights. The applicant stated he did start working about a month after he arrived in Australia and has worked in Australia ever since.
The Tribunal identified the impact on the applicant’s credibility of having arrived on the tourist visa and not earlier applying for a protection visa as well as working illegally in Australia.
The applicant identified that his father had also arrived in Australia on two occasions and that currently his father is seeking a protection visa. The applicant identified that he also had an older brother who resided in Australia but that he had since returned to Malaysia.
The Tribunal raised with the applicant why he needed to be paying off family debts given the age at which he was when he arrived in Australia and the applicant acknowledged he had no personal obligation for those debts. The applicant did not even know how much was owed or to whom.
The applicant made reference to there being second-hand assertions that his family had been harassed by illegal money lenders. The applicant was not aware whether this involved his parents or whether there had been any report to the police. The applicant acknowledged he is voluntarily helping his family. When asked why it was not safe for him to return the applicant said it was his lack of schooling that made it difficult for him to find employment.
It was raised with the applicant that he had not arrived in Australia on a working visa. The applicant responded that he could not identify any reason under the convention why he faced harm. The applicant confirmed he had no idea what was in his protection visa as it had been filled in by an agent who was not a migration agent.
The Tribunal took into account that the applicant made no mention of family debts in his original application for protection and made no mention of debts to a particular person. The Tribunal found the applicant bears no responsibility for any moneys allegedly owing.
The Tribunal referred to the COVID situation and found that that does not reflect any intentional act or omission engaging the refugee criteria or complementary protection criteria.
The Tribunal identified the father’s voluntary return to Malaysia on at least one occasion and took into account that the applicant’s older brother has returned to Malaysia and that his mother and sister continue to reside in the same part of Malaysia since he arrived in Australia. The Tribunal found that the applicant remains in Australia for purely economic reasons and found that the applicant has no fear of harm from any person or for any convention reason in Malaysia now or in the reasonably foreseeable future.
The Tribunal was not satisfied there is a real chance the applicant would suffer serious harm from any person for any reason in Malaysia now or in the reasonably foreseeable future.
The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
The Tribunal found the applicant did not meet the criteria, under section 36(2)(aa), for complementary protection and affirmed the decision under review.
At the commencement of this hearing the Court explained to the applicant the nature of the hearing. The applicant confirmed that he understood the nature of the explanation given by the Court.
The grounds in the application are as follows:
(1)The Tribunal handled the case with bias and didn’t carefully consider the applicant’s situation in Malaysia;
(2)Unfairness and jurisdictional error exist in the case; and
(3)The Tribunal did not consider the statement given during the hearing. The statement given by the applicant clearly stated that the applicant’s life will be in danger if they were to return to Malaysia.
The applicant orally suggested that the Tribunal had found that there was no reason he had to pay anyone back. The Tribunal, in fact, found that the applicant did not owe anyone any money.
The applicant made reference to the Tribunal finding that he had come to Australia for the lifestyle. The Tribunal, in fact, found the applicant came to Australia for economic reasons and did not accept that the applicant met any of the criteria for a protection visa.
The applicant also asserted he did not understand why he had not been allowed to stay. The applicant came to Australia, as identified by the Tribunal, on a tourist visa which was not a working visa. The applicant subsequently applied for a protection visa and the Tribunal upheld the delegate’s decision that he did not meet the criteria for that visa.
The applicant’s oral submissions identified disagreement with the reasoning of the Tribunal inviting not more than merits review. The applicant’s oral submissions did not identify any jurisdictional error.
In relation to ground 1, there is no conduct that has been identified to suggest the Tribunal did other than approach the matter with an open mind reasonably capable of persuasion as to the merits. Further, no conduct has been identified by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No transcript has been provided or other evidence to support the allegation of bias.
The conduct of the two hearings, as recounted by the Tribunal, are consistent with the Tribunal approaching the hearing with an open mind. No case of actual or apprehended bias is made out. On the face of the Tribunal’s reasons, it had a genuine intellectual engagement with the applicant’s claims and evidence. Accordingly, the assertion that the Tribunal did not carefully consider his situation is not made out. No jurisdictional error is made out under ground 1.
In relation to ground 2, the Tribunal complied with its statutory obligations in relation to the conduct of the hearing and complied with its obligations in relation to the delivery of written reasons after the oral decision. On the face of the material before the Court the applicant had a real and meaningful hearing before the Tribunal. Accordingly, the Court is not satisfied that there has been any procedural unfairness in the conduct of the hearing by the Tribunal. No other basis has been identified to support the assertion of a jurisdictional error in the applicant’s case. Accordingly, no jurisdictional error is made out by ground 2.
In relation to ground 3, it is apparent the Tribunal did consider the applicant’s evidence that he gave on the two occasions before the Tribunal and had a genuine intellectual engagement with that evidence in finding that he did not meet the criteria for the grant of a protection visa. No evidence was identified that the Tribunal failed to consider.
To the extent that the applicant is referring to his life being in danger because of the economic circumstances that was expressly considered and the subject of an adverse determination to the applicant in the Tribunal’s reasons. Accordingly, no jurisdictional error is made out by ground 3.
As the application has failed to make out any jurisdictional error, the application is dismissed.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the published oral reasons for Judgment of Judge Street. Associate:
Dated: 5 October 2023
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