CWP17 v Minister for Home Affairs

[2019] FCCA 273

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWP17 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 273

Catchwords:
MIGRATION – Protection visa application – claims to fear harm from unnamed persons from whom applicant claimed to have borrowed money – delay in making application – ground of review unparticularised and devoid of merit.

Legislation:

Migration Act 1958 (Cth), ss.65, 36(2), 425, 425A, 424A

Cases cited:

NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152

Applicant: CWP17

First Respondent: MINISTER FOR HOME AFFAIRS & ANOR

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1379 of 2017

Judgment of: Judge A Kelly

Hearing date: 7 February 2019

Date of Last Submission: 7 February 2019

Delivered at: Melbourne

Delivered on: 8 February 2019

REPRESENTATION

The Applicant: In person

Solicitor for the Respondents: Ms Nicholson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.

2. The application filed on 29 June 2017 be dismissed.

3. The applicant pay the costs of the first respondent fixed at $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1379 of 2017

CWP17

Applicant

And

MINISTER FOR HOME AFFAIRS & ANOR

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed on 29 June 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on  8  June 2017 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa pursuant to s 65(1)(a) of the Migration Act 1958 (Cth) (Act).

Background

1. The applicant, a Malaysian national aged 36 years, first arrived in Australia on 28 February 2011 on a visitor visa which visa expired in May 2011.  The applicant has remained in Australia from that time.

2. On 12 October 2015, the applicant applied for a Protection (subclass 866) visa.  By his application, the applicant claimed he had become involved with loan sharks and received constant threats.  He also claimed to fear being harmed or killed.  He also claimed that if he returns to Malaysia that his life would be in danger.  His claims were otherwise not articulated in any detail.

3. On 12 August 2015, a delegate of the Minister refused to grant the applicant a Protection visa.  The delegate was not satisfied that the applicant met the relevant criteria for the grant of the visa.  The delegate found that the applicant’s claims were fabricated due to the lack of detail and noted that the applicant had not taken an opportunity to attend an invitation to provide further detail in relation to his claim.  The delegate also took into account the applicant’s delay in applying for the visa.

4. On 24 August 2015, the applicant lodged an application to the Tribunal for a review of the delegate’s decision.

5. On 10 April 2017, the applicant was invited to attend a hearing before the Tribunal on 8 May 2017 to give evidence and present arguments relating to the decision under review.  The applicant attended the hearing before the Tribunal with the assistance of his authorised representative and a Mandarin interpreter.

6. At the hearing, the applicant’s claims[1] were as follows:

   a)he had come to Australia because he owed a lot of people money (approximately 30-40,000 Malaysian ringgit).  The applicant did not know the names of those people as he only had their phone number and had rung them to borrow money.  Over a period of three to four years he borrowed the money to fuel his gambling addiction;[2]

   b)the first time that the applicant had borrowed money was from a person whose name he did not know (being for a loan of 5,000 Malaysian ringgit).  The applicant claimed that he had rung the person who had come to his house and given him the money.  The applicant also claimed that he had to pay 500 ringgit interest but said there was no date for repayment or date on which interest accrued and he borrowed money from someone else to pay the first creditor;[3]

   c)he had been assaulted seven to eight years prior as a result of borrowing money.  He reported it to the police, to no avail; [4]

   d)he was illiterate and could not answer the Tribunal’s questions in Chinese or English; [5]

   e)he did not fear harm in Malaysia for any other reason, knew he was not a refugee and just did not want to go back. [6]

   [1]             The following matters are drawn from the Tribunal’s statement of reasons (Reasons).

   [2]             Reasons, [18].

   [3]             Reasons, [19].

   [4]             Reasons, [21].

   [5]             Reasons, [21].

   [6]             Reasons, [22].

7. On 8 June 2017, the Tribunal made a decision affirming the delegate’s decision to refuse the visa application.  It provided a statement of reasons for that decision which, although brief, addressed the issues that arose in relation to the delegate’s decision that was under review.

8. While the Tribunal accepted that the applicant was a citizen of Malaysia, it expressed concerns, about his identity and the genuineness of his passport due to inconsistencies in his evidence (both oral and written) as to where he was born and had lived in Malaysia.[7]  At the hearing, the applicant had been unable to tell the Tribunal where he was born, stating that he had forgotten the name of the place.  Further, he had initially been unable to tell the Tribunal which state in Malaysia he grew up in or his last address in Malaysia, telling the Tribunal (despite the provision of an interpreter) that language was a barrier.  The Tribunal expressed concern that he had been unable to give evidence upon these matters. 

   [7] Reasons, [11]-[16].

9. The applicant later told the Tribunal he attended school in Balakong until year 7.  The Tribunal noted, and the applicant agreed, that he had stated in his visa application that he lived in the same place for 12 years.  When asked the address he had lived at for twelve years, the applicant gave his address as 21 Tamney Yng Bia, but had not been able to give further details.  The Tribunal noted he had recorded a different address in his protection visa application, being 21 Taman Setia, 2 Jalan Setia 3, Seri Kembangan Selangor.  The applicant stated this was because he had two ‘places’ – one being his mother’s place and one being his grandmother’s place.  The Tribunal considered the inconsistencies in his evidence as to the address he claimed to have lived for 12 years indicated that he had not been truthful in his evidence.

10. The Tribunal noted that for substantial parts of the hearing the applicant had appeared to be able to understand and communicate through the interpreter.  The applicant’s difficulties in answering the Tribunal’s questions about where he was born and lived in Malaysia, together with his inability to repeat information he had previously provided in writing, caused the Tribunal to have concerns about his identity and the genuineness of his passport.[8]

    [8]             Reasons, [16].

11. The Tribunal found that the applicant’s claims to fear harm from gangs or money lenders in Malaysia were vague, inconsistent and without meaningful detail and concluded that they were fabricated in their entirety.[9]  The Tribunal found that the applicant had no subjective fear of harm in Malaysia from gangs or money lenders and accordingly that:

    a)there was not a real chance that the applicant would suffer serious harm on return and concluded that he did not satisfy s 36(2)(a) of the Act.[10]

    b)the applicant would not face a real risk of significant harm on return to Malaysia and concluded that he did not satisfy s 36(2)(aa) of the Act.[11] 

    [9]             Reasons, [23].

    [10] Reasons, [24], [28].

    [11] Reasons, [25]-[27]; [29].

Procedural history

1. On 29 June 2017, the applicant filed an application for judicial review of the Tribunal’s decision.  Accompanying that application was an affidavit to which the applicant annexed a copy of the Reasons but which did not contain any further evidence which might have illuminated the basis on which judicial review was being sought.

2. On 21 February 2018, orders were made, by consent, listing the application for final hearing.  By this order, the applicant was afforded an opportunity to file an amended application with proper particulars, a supplementary court book and written submissions in support of the application.  The applicant did not take those opportunities.

3. By a Response filed on 17 January 2019, the Minister sought that the application be dismissed on the basis that no jurisdictional error was established and the applicant was not a person in respect of whom Australia owned protection obligations.

Consideration

1. The application contains one ground of review which reads:

   Tribunal failed to taking consideration of my relevant material and consideration about the fear of harm from Malaysia.

2. The ground of review lacks any particularity and does not identify any basis upon which a conclusion of error on the part of the Tribunal might be demonstrated.  When asked to articulate the basis on which he contended that the Tribunal had failed to consider any relevant material, the applicant was equally non-responsive.

3. I accept the Minister’s submission that there was no relevant material which the Tribunal failed to consider.  The applicant’s Protection visa application was unaccompanied by supporting material and the written claims in his Protection visa application were bereft of substantive content.[12]  The Tribunal had regard to the applicant’s claims as advanced in the Protection visa application and elaborated on in his oral evidence at the hearing.[13]  It found that the applicant had fabricated those claims and held no subjective fear of harm, the latter finding of which was fatal to the applicant’s claims under the Refugee criteria.[14] The Tribunal gave genuine and meaningful consideration to the applicant’s claims to fear harm in Malaysia (as vague and undetailed as they were) and notwithstanding that he conceded that he did not hold any fears, knew he wasn’t a refugee and just did not want to go back to Malaysia.[15]  The Tribunal’s findings were reasonably open to it for the reasons it gave.

   [12]           See answers to Ques 43-50 of Protection visa application.

   [13] Reasons, [17]-[22].

   [14] Reasons, [23]-[24].

   [15]           Reasons, [22].

4. The Tribunal complied with its procedural fairness obligations under Part 7, Division 4 of the Act. By invitation emailed to the applicant’s nominated representative on 10 April 2017, the applicant was invited to attend a hearing before the Tribunal in accordance with s 425 and s 425A of the Act. The applicant attended the hearing and was assisted by a Mandarin interpreter. The Tribunal noted that although the applicant claimed that he had difficulty understanding the interpreter at the hearing, it recorded in its decision that the applicant appeared to be able to communicate effectively.[16]  No evidence of any errors in interpretation was placed before the court.  By extension, no evidence was presented that any such errors had effectively prevented the applicant from giving evidence to the Tribunal or that had been material to a conclusion of the Tribunal which were adverse to the applicant.[17]  From the delegate’s decisional record, the applicant was otherwise on notice of the determinative issue on the review; namely, the credibility of his claims and evidence.[18] No failure to observe s 425 was suggested or apparent.

   [16]           Reasons, [16].

   [17]NAOA v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241; SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142.

   [18]SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152.

5. Nor was there any information that was required to be put to the applicant in accordance with s 424A of the Act. The Tribunal’s decision was based on the applicant’s written evidence to the Department and his oral evidence to the Tribunal, both of which fell within the exceptions to information in s 424A(3)(ba) and s 424A(3)(b) of the Act respectively.

Conclusion

1. As no jurisdictional error is established and no jurisdictional error is otherwise apparent from the Tribunal’s decision, the application should be dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of  Judge A Kelly

Associate: 

Date:  8 February 2019