CWL18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1224
•19 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CWL18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1224
File number: MLG 1541 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 19 November 2024 Catchwords: MIGRATION LAW – Protection visa application – Review of a Tribunal Decision to refuse a protection visa application – Where the Tribunal was satisfied that there were effective protection measures available in Malaysia – Where the Tribunal was satisfied that Applicant could obtain protection from an authority in Malaysia such that there would not be a real risk of significant harm – Grounds not proved – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 5J, 5LA, 36, 425, 425A, 499 Cases cited: Attorney-General (NSW) v Quin (1990) 170 CLR 1
Craig v South Australia (1994) 184 CLR 163
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 39; [2000] FCA 1759
Minister for Immigration and Border Protection v MZYTSand Another [2013] FCAFC 114
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of last submissions: 16 September 2024 Date of hearing: 4 September 2024 Applicant: In person Solicitor for the First Respondent: Ms K Petrovski of Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1541 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CWL18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
19 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed
2.The Applicant pay the First Respondent’s costs fixed in the amount of $8,371.30.
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 CHAMPION:
INTRODUCTION
The Applicant is a Malaysian citizen. He claimed to be at risk of harm from the Ah Long (loan sharks) should he return to Malaysia, both as a member of an Ah Long gang and because he has borrowed money from an Ah Long gang. He seeks judicial review of a Tribunal decision refusing the grant of a protection visa.
As is expanded upon below, the Tribunal took into account country information set out in a 2016 DFAT report as to Malaysia. Before it published its reasons, DFAT had published an updated 2018 report as to Malaysia.
The principal issue is whether by not taking into account the latest country information the Tribunal made a jurisdictional error. Read beneficially, Ground 7 of the Applicant’s grounds is sufficiently broad to comprehend an allegation of error as to this issue.
Whilst I have found there was error in failing to take into account the latest country information, the error was not jurisdictional, because it was not material. The Applicant has not proved error as to any other ground.
WHAT ARE THE ISSUES?
I have identified the following five issues for decision set out in the narrative of the Applicant’s judicial review application (paras. [1] –[10]) as follows:
(1)Whether grounds 1, 2, 3, 4, 8, and 9 amount to an impermissible merits review application?
(2)Whether the Tribunal complied with its procedural fairness obligations under Part 7 of the Act (Ground 5)?
(3)Whether the Tribunal misinterpreted the definition of a refugee under s. 5H(1)(a) of the Act (Ground 6)?
(4)Whether the Tribunal made a jurisdictional error as to the way in which it considered country information (Ground 7) (referred to as the principal issue above); and
(5)Whether the Applicant has proved jurisdictional error because of new claims arising since the date of the Tribunal decision?
I first set out the relevant background. My reasons then deal with each of these issues in turn.
WHAT IS THE RELEVANT BACKGROUND?
On 19 April 2016 the Applicant arrived in Australia.
On 13 July 2016, the Applicant applied for the visa, the refusal of which is now the subject of the judicial review application.
Before the delegate, the Applicant claimed his friend introduced him to a loan shark because he “desperately” needed to borrow money to settle his business debts. He borrowed from the loan shark and was forced to join their gang to “run illegal business.” The Applicant said that were he to return to Malaysia, the loan sharks “will torture and kill him”.
The delegate found that there were “effective protection measures” available in Malaysia under s. 5LA(1) of the Migration Act 1958 (Cth). The delegate also found that the Applicant could obtain from an authority of Malaysia protection such that there would not be a real risk that he would suffer significant harm under s. 36(2B)(b) of the Act. The delegate refused to grant the visa.
New claims at the Tribunal Hearing
Before the Tribunal, the Applicant claimed that he joined a Multi-Level Marketing scheme and invested money in it (MLM scheme). The woman who introduced him to the MLM scheme took his money and disappeared. Unable to repay his own loans, the Applicant was invited to join an Ah Long gang in order to “collect money from [other] people who owed money.” The Applicant said he used remaining funds “to come to Australia to create a new life” (Reasons, [15]).
The Tribunal’s decision
The Tribunal found the Applicant to be a credible witness (Reasons, [49]). It accepted the Applicant’s account that he was motivated to enter into the MLM scheme to assist his family “have a better future.” At [50] of its Reasons, the Tribunal accepted that:
•The applicant joined an MLM scheme in late 2015;
•He needed capital to obtain higher returns from the scheme so he borrowed from loan sharks;
•The loan sharks forced the applicant to join them as a gangster to intimidate people into repaying their debts;
•The applicant never engaged in any violent activities; and
•He has now repaid his debt to the loan sharks.
By these findings the Tribunal accepted important elements of the Applicant’s account. Nonetheless, the Tribunal found that the level of state protection available to the Applicant in Malaysia meant that he was not entitled to a protection visa for a convention reason or under the complementary protection regime. Specifically, as to “effective protection measures”, in its Reasons at [56] the Tribunal set out that it was satisfied that under s. 5LA of the Act, effective protection measures were available to the Applicant in Malaysia. Further, in its Reasons at [61], the Tribunal set out that it was “satisfied that the applicant could obtain, from an authority of Malaysia, protection such that there would not be a real risk that he will suffer significant harm” under s. 36(2B)(b).
As a result, as the delegate had done, the Tribunal concluded that the Applicant was not a person in respect of whom Australia had protection obligations under ss. 36(2)(a) or 36(2)(aa) of the Act (Reasons, [57] and [61]).
The Tribunal affirmed the delegate’s decision not to grant the Applicant a visa.
WAS THERE A JURSIDICTIONAL ERROR?
I turn now to the five identified issues arising on this judicial review application.
(1) Do Grounds 1, 2, 3, 4, 8, and 9 amount to a request for impermissible merits review?
Grounds 1, 2, 3, 4, 8, and 9 are as follows:
1.I come from Malaysia and applied for Protection visa application and application was lodged as I have had genuine fear for my life in Malaysia and upon return I could be subject to physical and verbal abuse and possibly kidnapping or may be tortured as well.
2.DIBP refused my application and then application was review was lodged and reason for refusal that I did not meet s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). I lodged an application for review of this decision with AAT.
3.I have lived all my life in Malaysia and due to poor economic circumstances I became loan Shark victim. I took help from loan Shark People and which I was anticipating that I would pay them and then everything will be good.
4.However, during the course of I was forced by Loan Shark people to return favour and join them helping to run their unlawful operations which included (drugs, gang violence etc). When I refused to join them I was threated and I was told to pay all the money urgently and which was unable to do so and I had to run away from them. I could have been killed or kidnapped or hurt very badly. That's the reason I run away from Malaysia and seek protection in Australia.
…
6.AAT has failed to recognise the extend of danger I would fall into if I was forced to return to Malaysia where loan shark will chase me out and make me pay all dues which I am unable to pay and also refuse the request to join their illegal operations. This is clear indication of a jurisdictional error made by AAT. AAT has further misinterpreted definition of a refugee under Australia’s obligation to refugee convention.
…
8.I would like to request to FCC to set new orders and replace orders made by AAT and remit this decision back to AAT with directions that I meet criteria and definition of genuine refugee.
9.I have complete fair on FCC and certain that FCC will outlines errors made by AAT while deciding on my application
[As written]
I accept the Minister’s submissions that these grounds rise no higher than an invitation to engage in impermissible merits review. As Brennan J said in Attorney-General (NSW) v Quin(1990) 170 CLR 1 at [36] (approving Marshall CJ famous words in Marbury v Madison): “the merits of administrative action … are for the repository of the relevant power and … for the repository alone."
Ground 1 is a factual assertion that the Applicant could be the subject of abuse, kidnapping or torture should he return to Malaysia. This is a merits issue. Even if that assertion were proved, Ground 1 does not grapple with the fact that the Tribunal refused to grant the Applicant the visa because of the availability of effective protection measures.
Ground 2 narrates that the Applicant made an application for merits review to the Tribunal. It does not otherwise establish jurisdictional error.
Grounds 3 and 4 also set out the narrative background. I make the same observation as to Grounds 3 and 4 as I made as to Ground 1: namely, they do not grapple with the fact that the Tribunal refused the Applicant the visa because of the availability of effective protection measures within Malaysia.
Ground 6 is a complaint about the Tribunal’s fact finding. It is somewhat unexpected that the Applicant makes this complaint that if “forced to return to Malaysia” the “loan shark[s] will chase me … and make me pay all dues” in circumstances in which at [18] of its Reasons the Tribunal noted that: “The applicant stated that the truth was that he had settled his loan” which underpinned the Tribunal’s consequential finding at [50] of its Reasons that “he has now repaid his debt to the loan sharks”. Ground 6 would only be sustainable as a ground of judicial review if the Tribunal’s finding that the Applicant had settled his loan disclosed jurisdictional error. The Applicant has not proved that there was any jurisdictional error in the factual finding of the Tribunal that he had repaid his debts to the Ah Long.
In Grounds 8 and 9 the Applicant narrates the reasons he has brought this judicial review application. Those grounds do not otherwise advance any case that the Tribunal made a jurisdictional error.
Subject to one separate issue as to Ground 6 below, I repeat that I accept the Minister’s submissions that each of grounds 1, 2, 3, 4, 6, 8, and 9 invite impermissible merits review. Suffice to say, the Applicant has not established jurisdictional error as to any of these grounds.
(2) Did the Tribunal comply with its procedural fairness obligations under Part 7, Division 4 of the Act (Ground 5)?
As to Ground 5, the Applicant submitted:
5.Review applicant was already harmed by Loan Shark People and have advised AAT however, AAT refused to accept the claim. This is an error in law as far as I am concerned and AAT has made unfair assessment on my matter
[As written]
It is usually insufficient to establish jurisdictional error to assert that the decision maker’s finding was “unfair” or “unjust” (see Quin, [36], above). The Applicant did not particularise how the Tribunal’s assessment of his matter was unfair.
The Minister submitted that as far as the Applicant alleged a denial of procedural fairness, the Tribunal complied with its procedural fairness obligations as codified in Part 7, Division 4 of the Act.
The Applicant was invited to attend a hearing scheduled in accordance with ss. 425 and 425A of the Act. The Applicant attended the hearing. He had the assistance of a Malay-English interpreter.
Under s. 425 of the Act, as a matter of procedural fairness, an invitation and opportunity to appear before the Tribunal to give evidence and present argument must be meaningful and cannot be a “hollow shell or an empty gesture” (Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 39; [2000] FCA 1759, [31]). The Tribunal’s obligation is two-fold. It must invite an applicant to a hearing and also raise with the applicant the issues relating to the decision under review by giving them “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” (Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, [10]).
I accept the Minister’s submissions that the Applicant was on notice that the determinative issues on the review from the delegate’s decision and the Tribunal’s questioning at the hearing would be:
(a)whether effective protection was available to the Applicant in Malaysia; and
(b)whether the Applicant faced a real chance of serious or significant harm on account of economic issues.
Ground 5 has not been made out.
(3) Did the Tribunal misinterpret the definition of a “refugee” (Ground 6)?
There is a further aspect to Ground 6. The Applicant submits that the Tribunal erred by misinterpreting the definition of a refugee in the Act. Ground 6 is as follows:
6.AAT has failed to recognise the extent of danger I would fall into if I was forced to return to Malaysia where loan shark will chase me out and make me pay all dues which I am unable to pay and also refuse their request to join their illegal operations. This is clear indication of a Jurisdictional error made by AAT. AAT has further misinterpret definition of a refuge under Australia’s obligation to Refugee convention.
[Emphasis added]
If the Tribunal misinterpreted the law or misconstrued the statute it may make a jurisdictional error (Craig v South Australia (1994) 184 CLR 163, 177; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, [3]).
The Applicant did not provide any further particulars of Ground 6.
At [51] of its Reasons, the Tribunal found that the Applicant was a member of a particular social group, namely “a person who has borrowed money from the Ah Long and associated gangs”. It also accepted that he had a genuine and credible fear of harm for a reason mentioned in s. 5J(1)(a), namely that “in the event he returned to Malaysia and is expected to join the Ah Long as a gang member”. The Tribunal accepted that there was a real chance of serious harm including physical ill-treatment. As I have noted, however, the Tribunal did not grant the visa because it accepted that effective protection measures were available under s. 5LA and the Applicant could obtain from an authority of the country protection such that there would not be a real risk that he would suffer significant harm under s. 36(2B)(b).
Economic claims
The Tribunal also considered whether the Applicant would face serious harm for a Convention reason on return to Malaysia because he would suffer “significant economic hardship that threatens his capacity to subsist,” “denial of access to basic services…”, or “denial of capacity to earn a livelihood” under ss. 5J(5)(d), (e), and (f) of the Act respectively.
Given the Applicant’s experience in the automotive industry, as well as the farming sector in Australia, the Tribunal found at [64] of its Reasons that there was not a real chance that he would face serious harm on return to Malaysia “now or in the reasonably foreseeable future” for economic reasons as outlined in s. 5J(5)(d), (e) or (f) or in any other way.
At [65] of its Reasons, the Tribunal accepted that the Applicant would face some challenges arising from finding work if he were to return to Malaysia. It did not accept, however, that the Applicant would “not be able to access paid employment in the future, given his overall motivation and work experience.” The Tribunal placed “considerable weight” upon country information that indicated “the Malaysian economy is developing in size and sophistication and there are relatively low rates of those living in extreme poverty in Malaysia”.
I detect no error in the way the Tribunal interpreted the definition of refugee in the statute.
Ground 6 has not been made out.
(4) Did the Tribunal make a jurisdictional error by not taking into account the up-to-date country information (Ground 7)?
Ground 7 was as follows:
7.DIBP and AAT has acted on information available to them from Royal Malaysian police and which is not specific to individuals. AAT has no idea what is happening in Malaysia and entire system is corrupt and our primes minster has been caught for corruption. That means I would have no support from the authorities.
(As written)
Under s. 499(1) of the Act, the Minister gave a written direction, namely Direction No. 56 titled “Consideration of Protection Visa Applications”. Under s. 499(2A), the Tribunal had to comply with Direction No 56.
Clause 3 of Direction 56 was as follows:
3. Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
(Emphasis added)
The Tribunal said at [8] of its Reasons that it had:
taken account of…. relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes
It is apparent from the Tribunal’s reasons that it took into account a DFAT report as to country information for Malaysia dated 19 July 2016 (Reasons [37] fn 15; [40] fn 19, [42]; [55]) (2016 DFAT Report).
Under its model litigant obligations, the Minister alerted me to the fact that although the Tribunal relied on the 2016 DFAT report, by the date of the Tribunal’s decision, DFAT had published a new 2018 report. An affidavit of Ms Kristina Petrovksi, made on 16 September 2024, annexed the 2018 DFAT Report. I have already described the issue as to whether the Tribunal made a jurisdictional error in failing to consider the latest country information in the 2018 DFAT Report as the principal issue for decision on this judicial review application.
DFAT made a new “DFAT country information report Malaysia” dated 19 April 2018 (2018 DFAT Report). The Tribunal had held its hearing on 5 December 2017. The Tribunal published its decision on 16 May 2018. The 2018 DFAT Report had become available to the Tribunal between the hearing date and the Tribunal’s publication of its reasons.
Because of the Tribunal’s repeated references to the 2016 DFAT Report and the absence of any reference to the 2018 DFAT Report, I infer the Tribunal’s statement at [8] of its Reasons – that it had taken account of relevant country information – was a statement referring to the fact that it had taken into account the 2016 DFAT Report, not the 2018 DFAT report.
Clause 1.1 of the 2018 DFAT Report is as follows:
1.1 This Country Information Report has been prepared by the Department of Foreign Affairs and Trade (DFAT) for protection status determination purposes only. It provides DFAT’s best judgement and assessment at time of writing and is distinct from Australian government policy with respect to Malaysia.
The Tribunal was required to consider the country information as it stood at the date of its decision (Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, [45]). A failure to do so may constitute jurisdictional error because it did not fulfil its statutory merits review function. Specifically, in MZYTS, the Full Court said at [45]-[46]:
45…. Where the Tribunal’s reasons disclose no evaluation at all of the latest information or evidence available to it, we do not consider it can be inferred that it formed the state of satisfaction required of it.
46Although in one sense this might be described as a “failure to consider” most recent country information, or a failure to consider a claim about increased risk of persecution on return to Zimbabwe, in our opinion the error is, fundamentally, a failure to form the state of satisfaction (one way or the other) required for the purposes of the review in respect of the criterion in s 36(2)(a). Judicial review of the formation, by an inferior tribunal, of the state of satisfaction required by the empowering provision may be, as the High Court pointed out in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 (Kirk) (at [64]) best described as a “functional exercise” (citing Jaffe, 1957). Affixing a pre-existing label or meta-description to what a decision-maker did in purported exercise of a statutory power, for example “a failure to consider,” may assist the analysis, although it may also provide a distraction. To the extent Robertson J made similar observations in SZRKT at [98] and [111], we respectfully agree.
[Emphasis added]
Because I find that the Tribunal failed to consider the latest country information in the 2018 DFAT report, the Tribunal did not comply with s. 499(2A) of the Act in failing to comply with Direction 56 in the manner prescribed. The particular of its error was the failure to take into account the 2018 DFAT Report, being the “latest information available to it” (see MZYTS, [45], above).
The issue devolves to whether that error in failing to consider the 2018 DFAT Report amounted to jurisdictional error.
In LPDT the High Court said at [9]:
there are two questions: has an error occurred; and, if so, was that error material.
At [16] of LPDT the High Court said:
In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
Further I note that in LPDT, at [15], the High Court said that on judicial review the court “must be careful not to assume the function the decision-maker” or, at [36], engage in “improper speculation” as to how the Tribunal would have reasoned if it had not departed from the required process of reasoning.
Nonetheless, the Minister submitted (and I accept) that any error was not material because the Country Information in the 2018 DFAT Report for Malaysia did not differ in any meaningful or substantive way from the material in the 2016 DFAT Report.
First, the information about the size and effectiveness of the Royal Malaysian Police the Tribunal referenced in its reasons at [37] and [55] from the 2016 DFAT report is substantively reproduced at [5.1] and [5.5] of the 2018 DFAT Report.
Second, the Tribunal at [40] said the following with reference to the 2016 DFAT Report as t the Malaysia judicial system:
The Tribunal notes that the country information indicates that the Malaysian authorities including the police and judiciary are reasonably effective in combating Ah Long and. Other criminal gangs
It included a significant extract as to the effectiveness of the Malaysian judiciary drawn from the 2016 DFAT report. “A reasonably effective police force” and “an impartial judicial system” are relevant matters under s. 5LA(2)(c) of the Act.
There was no substantive difference between the context of the 2016 DFAT report and the 2018 DFAT report as to the Malaysian judicial system. Paragraph [5.13] of the 2018 DFAT Report noted that “…the majority of cases in Malaysian civil courts are processed in accordance with the rule of law and legal procedure” (paragraph [5.13]).
Third, the information the Tribunal cited at [42] of its Decision from the 2016 DFAT Report regarding Malaysia being “classified by the World Bank as an upper middle-income, export-oriented economy” the 2018 DFAT Report replicated at paragraphs [2.7]-[2.8]. Paragraphs [2.9]-[2.11] of the 2018 DFAT Report contain similar material to the remainder of the information cited in [42] of the Tribunal’s Decision relating to Malaysia’s economic situation drawn from the country information and the 2016 DFAT Report.
In the absence of any difference of substance between the 2016 DFAT report and the 2018 DFAT Report, I can affirmatively conclude that there was not a realistic possibility that the outcome of the decision could have been different had the error of failing to consider the 2018 DFAT Report not been made (see: LPDT, [16]).
Ground 7 has not been made out.
(5) Has the Applicant proved jurisdictional error by reference to events since the date of the Tribunal’s decision?
Although not the subject of a written ground of review, during the Applicant’s oral submissions before me he said that there were new claims that had only arisen since the date that the Tribunal refused his visa. He did not identify the substance of the new claims.
Whether there was jurisdictional error is answered by reference to the circumstances as they existed at the time the decision was made. As the Full Court explained in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28] the question of whether the decision-maker made its decision in accordance with the conferral of statutory decision-making authority:
is answered by reference to the circumstances as they existed at the time the decision-making authority was exercised. The question is not answered by reference to circumstances which did not exist at the time of the decision.
As a result, circumstances arising after the Tribunal’s decision are not usually relevant to establishing jurisdictional error. In this case, in circumstances in which he did not identify the substance of any new claims, the Applicant did not put anything before me which would detract from the applicability of that proposition.
CONCLUSION
I will dismiss the application.
At trial the Minister sought costs. The quantum of its claimed costs was then something less than scale costs. In circumstances in which the Minister filed additional submissions after the hearing, I will order that the Applicant pay the Minister’s costs fixed in the amount of $8,371.30 in accordance with the scale.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 19 November 2024
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