Cur18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 963

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CUR18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 963  

File number:

MLG 1503 of 2018

Judgment of:

HER HONOUR JUDGE C.E. KIRTON KC

Date of judgment:

26 October 2023

Catchwords:

MIGRATION LAW – review of Administrative Appeals Tribunal decision – protection visa applicant – application seeking impermissible merits review – no jurisdictional error identified – application dismissed

Legislation:

Migration Act 1958 (Cth) s 476

Federal Circuit and Family Court of Australia (General Federal Law) Rules 2021 (Cth) sch 2, pt 2, div 1, item 3

Division:

Division 2 Family Law

Number of paragraphs:

35

Date of last submissions:

19 October 2023

Date of hearing:

19 October 2023

Place:

Melbourne

The Applicant:

Appeared in person

Solicitor for the First Respondent:

Australian Government Solicitor

The Second Respondent:

Submitted an appearance, save as to costs

ORDERS

MLG 1503 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CUR18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:	26 OCTOBER 2023

THE COURT ORDERS THAT:

1.The Application filed 30 May 2018 is dismissed.

2.The Applicant pay the First Respondent’s costs fixed in the sum of $3,000.

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

HER HONOUR JUDGE C.E. KIRTON KC:

INTRODUCTION

1. By an Application filed on 30 May 2018 (Application), the Applicant seeks judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) dated 9 May 2018 (Tribunal’s Decision). The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a protection visa (Visa).

2. The Application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act). The grounds upon which the Application is brought will be discussed in detail below.

3. This matter was heard on 19 October 2023 in the Melbourne Registry of the Court (Hearing). The Applicant appeared in person, with the assistance of an interpreter in the Malay and English languages and a Solicitor appeared for the Minister. The Court is satisfied that the Hearing provided a meaningful opportunity for the Applicant to engage with the Court.

   ISSUES IN DISPUTE

4. The issues in dispute in this matter are whether the Tribunal committed jurisdictional error in the Tribunal’s Decision.

   SYNOPSIS

5. I have determined that the Tribunal’s Decision is not affected by jurisdictional error and therefore the Application must be dismissed.

   BACKGROUND

6. The Court has before it a Court Book filed by the Minister on 22 August 2019, numbering 108 paginated pages (Court Book). The Court has reviewed the material in the Court Book in detail.

7. Together with the Application, the Applicant filed an Affidavit sworn and filed by him on 30 May 2018 (Applicant’s Affidavit), which annexed a copy of the Tribunal’s Decision. The Applicant’s Affidavit did not introduce or raise any other issues or matters of relevance to the Court’s consideration of the Application.

8. The Applicant is a citizen of Malaysia and arrived in Australia on 6 September 2016.[1] He is married and has 3 children, who continue to reside in Malaysia.[2]

   [1] Court Book (CB) 30, 55.

   [2] CB 17-18, 25.

9. On 18 November 2016, the Applicant lodged an application for the Visa. In his application for the Visa, the Applicant stated that he left Malaysia as he had been told legal action would be taken against him for failure to repay a loan, and that he had been ‘blacklisted from the financial institutions’.[3]

   [3] CB 41.

10. On 7 March 2017, the Applicant was a sent a letter from the Department of Immigration and Border Protection (Department), refusing his application for the Visa (Delegate’s Decision).[4]

    [4] CB 52-67.

11. On 17 March 2017, the Applicant lodged an application for review of the Delegate’s Decision with the Tribunal. The hearing before the Tribunal was held on 21 March 2018, having been rescheduled and changed to a video hearing upon advice from the Applicant that he had relocated from Melbourne (Tribunal Hearing).[5] The Applicant was assisted by a Malay interpreter at the Tribunal Hearing, in accordance with his request in the ‘Response to hearing invitation – MR Division’ form.[6]

    [5] CB 74-83.

    [6] CB 84, 87.

12. At the Tribunal Hearing, the Tribunal Member requested the Applicant submit evidence of his repayment of the loan that he owed in Malaysia, consistent with his claims that he had been doing so since arriving in Australia. The Applicant wrote to the Tribunal on 4 April 2018 requesting an extension of time by which to provide this information, which was granted to 18 April 2018.[7] The Applicant again wrote to the Tribunal on 18 April 2018, advising that he was unable to provide the requested information. In particular, the Applicant stated:

    […] I am very disappointed that because the bank cannot give the cooperations regarding the statement. It was because have a new actions. Named personal data protections act. From this actions.the bank need my self to go the bank and need the scan my thumbprint for verifications purpose..before they give any info […][8]

    (Without alteration)

    [7] CB 90-91.

    [8] CB 93.

13. On 9 May 2018, the Tribunal affirmed the Delegate’s Decision. A copy of the Tribunal’s Decision was sent to the Applicant on 11 May 2018.[9]

    [9] CB 100.

    THE TRIBUNAL’S DECISION

14. The Tribunal’s Decision appears at pages 101 to 105 of the Court Book.

15. Firstly, the Tribunal acknowledged that the criteria for the grant of the Visa are set out in s 36 of the Migration Act and Schedule 2 to the Migration Regulations 1994 (Cth), and that an applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c) of the Migration Act.[10] Based upon these criteria, the Tribunal accurately identified the issue on review which it was required to determine.[11]

    [10] CB 102, [4].

    [11] CB 103, [12].

16. The Tribunal noted that in making its decision, it had mandatorily taken into account the following, where relevant, in accordance with Ministerial Direction No. 56 Consideration of Protection visa applications (as was in force at the time):[12]

    (a)Policy guidelines prepared by the Department, including:

    (i)PAM3 Refugee and humanitarian – Complementary Protection Guidelines; and

    (ii)PAM3 Refugee and humanitarian – Refugee Law Guidelines.

    (b)Country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes.

    [12] CB 103, [9].

17. The Tribunal went on to give consideration to those claims made by the Applicant in his application for the Visa and as confirmed at the Tribunal Hearing, which included that he feared legal action, bankruptcy, and ‘trouble’ from loan sharks in Malaysia.[13] The Tribunal set out the background as to the Applicant’s loan and his treatment by those that he loaned the money from.

    [13] CB 103, [11].

18. The Tribunal made a number of adverse credibility findings with respect to the Applicant and his evidence, commenting that certain claims were ‘difficult to believe’[14] and ‘vague and unrealistic’.[15]

    [14] CB 104, [19].

    [15] CB 105, [21].

19. Based on the evidence before it, the Tribunal was not satisfied that the Applicant met any of the criteria as set out in s 36(2) of the Migration Act,[16] and therefore affirmed the Delegate’s Decision.[17]

    [16] CB 105, [22]-[24].

    [17] CB 105, [25].

    PROCEEDINGS BEFORE THE COURT

20. On 30 May 2018, the Applicant filed the Application in the Federal Circuit Court of Australia (as the Court then was). 

21. The Applicant was given leave to file an amended application on two (2) occasions, pursuant to Orders of Registrars Bird and Downing on 7 August 2019 and 24 August 2023 respectively. The Applicant did not avail himself of these opportunities and therefore these Reasons for Judgment refer to the grounds as set out in the Application.

22. The Application contained the following grounds of review (Grounds of Review):

    AAT member does not care about threats I’m facing which is exposure to get fatal hurt and killed.

    Being exposed around and got from they eye and hunting from the group is very disturbing and torture my life everyday.

    AAT member does not seem to understand better about the situation I’m facing, get separated from my family because of the matter is not what i wanted, just because safety for my self and my family is important.

    (Without alteration)

23. At the Hearing the Applicant relied on the Application and the Applicant’s Affidavit.

24. At the Hearing the Minister relied on: the Court Book; the Response, filed on 5 July 2018; the Written Submissions, filed on 14 September 2023 (Minister’s Submissions); and a List of Authorities, filed on 19 October 2023. The Court has also considered the transcript of the Hearing, where the Applicant appeared in person and made oral submissions, and the Minister’s Solicitor also made oral submissions.

25. The oral submissions made by the Applicant were relatively brief and were effectively a re-statement of the Grounds of Review, including that he was blackmailed and felt threatened and unsafe in Malaysia, causing him to leave, while his wife and children remained in Malaysia.[18]

    [18] Transcript P4:L11-46.

26. The Court will now consider the Grounds of Review.

    CONSIDERATION

27. Due to the way in which the Grounds of Review have been framed in the Application, the Court considers that it is appropriate that they be considered together.

28. With respect to the assertion by the Applicant that the Tribunal did not care about the threats he was facing or his exposure to danger in Malaysia, the Court notes that it is not permitted to engage in merits review, nor make any determinations about the Applicant’s protection claims.

29. The Minister’s Submissions, with which the Court agrees, state that the Tribunal gave ‘clear and cogent reasons for its findings’ after consideration, and rejection, of the Applicant’s claims.[19] The findings made by the Tribunal were open to it on the evidence before it, particularly in circumstances where the Tribunal provided the Applicant with an opportunity after the hearing to provide supporting documentation and he failed to do so.

    [19] Written Submissions, filed by the Minister on 14 September 2023 (Minister’s Submissions), [19].

30. To the extent that the Applicant contends that the Tribunal failed to understand the gravity of the Applicant’s circumstances should he return to Malaysia, it cannot be accepted. The Tribunal clearly gave consideration to the Applicant’s claims about what he is likely to face if returned to Malaysia, including legal action, a bankruptcy declaration and ‘trouble for his family’. The Tribunal comprehensively addressed the claims made by the Applicant and did not accept them, as it was entitled to do in the absence of any persuasive evidence or documentation. The Tribunal’s Decision cannot be said to be unreasonable or illogical in these circumstances.

31. The Applicant also took issue with the Tribunal’s findings as to his family, who remain residing in Malaysia. To suggest that the Tribunal erred in any material way with respect to its findings about the Applicant’s family is plainly incorrect. The Tribunal questioned the Applicant as to why he would leave his family in Malaysia if he was so frightened, and the Applicant responded that he had reached an agreement with those targeting him not to harass his family.[20] It was open to the Tribunal to find this claim to be ‘unbelievable and far-fetched’.

    [20] CB 104, [18]

32. The Court notes with agreement those submissions made by the Minister that provide that the Applicant seeks ‘impermissible merits review’ by the Court of the Tribunal’s Decision, in taking issue with the conclusions made by the Tribunal from the evidence that was before it.[21]

    [21] Minister’s Submissions, [20].

33. The Application does not raise any jurisdictional error within the Tribunal’s Decision, and nor can any such error be identified by the Court. As such, the Application must be dismissed.

    CONCLUSION

34. The Application has not identified any jurisdictional error within the Tribunal’s Decision and therefore must be dismissed.

35. At the Hearing, the Minister sought costs fixed in the sum of $3,000,[22] which is well below the scale amount in item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Despite the Applicant’s submissions that this amount would be burdensome to him,[23] I am satisfied that the amount of $3,000 is reasonable in the circumstances. Accordingly, an Order will be made that the Applicant pay the Minister’s costs fixed in the sum of $3,000.

    [22] Transcript P9:L44-46.

    [23] Transcript P10:L42-43; P11:L16-22.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Her Honour Judge C.E. Kirton KC.

Associate:

Dated:       26 October 2023