Cyi17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 686
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CYI17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 686
File number(s): MLG 1419 of 2017 Judgment of: JUDGE LUCEV Date of judgment: 24 August 2022 Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal decision – citizen of Malaysia – refusal of protection visa – allegations re loan sharks – whether illogicality – whether to consider whether detention upon return to Malaysia amounted to serious harm – rejection of claim concerning detention – whether findings concerning conduct to strengthen claims – whether failure to perform function by failing to consider evidence – whether weight of evidence ignored – whether denial of natural justice – whether jurisdictional error Legislation: Migration Act 1958 (Cth) ss 5J, 36, 91R(3) (repealed), 424A, 425, 474, 476 Cases cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11; (1990) 21 ALD 1; (1990) 5 BR 137
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; 92016) 70 AAR 413
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
FHX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202
Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215
Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
“VAS” v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 44 Date of last submission/s: 18 November 2021 Date of hearing: 18 November 2021 Place: Perth Applicant: In person via CISCO Webex with the assistance of an interpreter Counsel for the First Respondent: Mr M Daly via CISCO Webex Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1419 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CYI17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
24 AUGUST 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The originating application filed 3 July 2017 be dismissed.
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 LUCEV
INTRODUCTION
Before the Court is an application filed 3 July 2017 in the Melbourne Registry of this Court (then styled the Federal Circuit Court of Australia) by the applicant, CYI17, for judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application seeks review of a decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision“ respectively) of 5 June 2017 to affirm a decision of a delegate (“Delegate” and “Delegate’s Decision” respectively) of the first respondent, the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”) on 28 June 2016 to refuse to grant CYI17 a (subclass 866) Protection visa (“Protection Visa”).
The Judicial Review Application contains four grounds. The grounds of review are set out at [12] below.
The following materials are before the Court:
(a)a Court Book (“CB”) totalling 234 pages, which was marked as Exhibit 1;
(b)the affidavit of CYI17 of 3 July 2017 (“CYI17’s Affidavit”);
(c)the Minister’s Outline of Submissions (“Minister’s Submissions”); and
(d)the transcript of the hearing on 18 November 2021 (“Transcript”).
LITIGATION HISTORY OF THIS MATTER
Delays in Melbourne and transfer to Perth
As the Chief Judge of this Court observed in AFP21 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 1322 at [25] per Chief Judge Alstergren it is “common knowledge that the Melbourne Registry of this Court [where this matter was originally filed and listed] has a large backlog”. The position was seemingly much the same in November 2019 when it was said, on an application to transfer a matter from the Sydney Registry of the Court to the Melbourne Registry of the Court, that “delays in the Melbourne Registry of this Court … would mean that it would be likely that the Application would not be heard for some two to three years if transferred”: GEQ18 v Minister for Home Affairs [2019] FCCA 3338 at [7] per Judge Dowdy.
CYI17 filed his Judicial Review Application in the Melbourne Registry of this Court on 3 July 2017. Exactly eight months after being filed the Judicial Review Application was the subject of a first court date before a Registrar in the Melbourne Registry when orders were made, amongst others, that the Judicial Review Application be listed for final hearing on a date to be advised by the Court before Judge Riethmuller. At no stage was the matter subsequently listed for hearing before any Judge in the Melbourne Registry. The Judicial Review Application was transferred to the Perth Registry of the Court for hearing by a Perth Judge in August 2021, and the matter was listed for hearing in the Perth Registry on 18 November 2021 (originally before another Judge but subsequently before the Court as presently constituted).
CYI17’s request for adjournment
On 16 November 2021 (two days before the listed hearing) CYI17 emailed the Chambers of the presiding Judge on two separate occasions. The first email was sent at 11.45am AWST and attached a Certificate of Capacity (“Certificate”) with a request to adjourn the hearing for Thursday 18 November 2021. The second email was sent at 11.55am AWST also with a request to adjourn the hearing for Thursday 18 November 2021, with the same attachment. The content of the two emails is identical as is the Certificate attached to both the emails.
On 16 November 2021 the Court responded to CYI17’s adjournment request by advising that any request for an adjournment should first be the subject of consultation with the Minister, and if there was no agreement to an adjournment then an Application in a Proceeding, supported by affidavit, should be filed seeking orders for an adjournment.
On 17 November 2021 the Minister emailed the Chambers of the presiding Judge indicating that any adjournment requested by CYI17 was opposed because:
(a)the Certificate did not indicate that CYI17 was unfit to attend the hearing in this Court; and
(b)the length of the adjournment sought was not indicated, and “where there are significant delays in the [Court] any adjournment was opposed”.
No Application in a Proceeding was filed by CYI17, and CYI17 attended at hearing and did not press the adjournment request: Transcript, p 4. It was therefore unnecessary to deal with the adjournment request. The Court does note however that the Certificate would have been insufficient to warrant an adjournment on medical grounds. The Certificate attached to the email from CYI17 requesting an adjournment was completed on 29 October 2021, approximately three weeks before the hearing, by a Dr Raminder Dhillon, and indicated that CYI17 had sustained a “Right index finger crush injury – Nail bed injury” and that the work environment consideration for this injury was “Keep dressing intact till R/V”. The Certificate included a “Capacity Assessment” that detailed the mental health function of CYI17 as a result of the injury, and which indicated that CYI17’s attention/concentration, memory (short and/or long term) and judgment (ability to make decisions) were “not affected”. The Certificate relied upon did not therefore establish any medical condition indicating that CYI17 could not attend the hearing in this Court.
BACKGROUND TO THE TRIBUNAL DECISION
The relevant background to the Tribunal Decision is as follows:
(a)CYI17 is a male citizen of Malaysia born in 1969: CB 44;
(b)on 12 February 2016 CYI17 arrived in Australia: CB 91;
(c)on 1 April 2016 CYI17 applied for the Protection Visa: CB 1-43;
(d)CYI17 claimed to fear harm from loan sharks to whom he owed money. He claimed to have had a business selling eggs, and to have borrowed money to support the business when customers did not pay him. CYI17 claimed that the loan sharks had threatened him with harm, hit him, tortured him, stopped his car on the road, and threw red paint at his house. CYI17 claimed that the loan sharks would kill him if he returned to Malaysia: CB 91-105;
(e)on 27 June 2016 the Delegate’s Decision to refuse the Protection Visa was made: CB 91-105;
(f)on 5 July 2016 CYI17 applied to the Tribunal for review of the Delegate’s Decision: CB 106-112;
(g)on 23 May 2017 CYI17 attended a hearing before the Tribunal (“Tribunal Hearing”): CB 180-182; and
(h)on 5 June 2017 the Tribunal affirmed the Delegate’s Decision: CB 186-197.
TRIBUNAL DECISION
In the Tribunal Decision (which appears at CB 186-197, and again at CB 216-227) the Tribunal:
(a)considered CYI17’s claims in his application for the Protection Visa, being that:
(i)he had left Malaysia to protect himself and his family from unlicensed loan sharks: CB 188 at [12];
(ii)in 2014 he started a small business supplying eggs in his area, and many people did not pay him. In order to cover his losses he started borrowing money from a loan shark introduced to him by a friend. After about three months he realised he could not afford to pay the loan shark anymore due to the high interest. He paid them as they had agreed however they claimed that the payment was not fulfilled. They hit him, tortured him, stopped his car on the side of the road and threw red paint on his house: CB 188 at [12];
(iii)he is sure the unlicensed loan sharks will harm or kill him if he does not comply with their requirements, that they are dangerous gangsters, and he had read in the press that the police cannot save people who are involved with loan sharks: CB 188 at [12];
(iv)he did not seek help as the loan shark threatened harm to his wife and children. There are many unlicensed loan sharks in his area and he is scared something bad will happen to his family if he makes a report to the police: CB 188 at [12]; and
(v)he moved to his mother-in-law’s house but the loan sharks had their own ways to find out his whereabouts, and that is why he left his family and ran away until he came to Australia. He is not be able to relocate in Malaysia as the loan sharks have many men in their organisation and it would be easy for them to find him regardless of his whereabouts in Malaysia: CB 188 at [12];
(b)noted the material CYI17 provided prior to the Tribunal Hearing, being a submission in support of his claims and including as attachments further copies of the cash sale documents (described as an “egg inventory”), as well as a tenancy agreement and copies of press items relating to loan sharks in Malaysia, a “Snapshot” Malaysian Corruption Report and Transparency International’s “Corruption Barometer” report on Malaysia: CB 189 at [14];
(c)noted the evidence from the Tribunal Hearing on 23 May 2017 including:
(i)information about CYI17’s family and their whereabouts: CB 189 at [15];
(ii)information about when CYI17 set up the small business: CB 189 at [17];
(iii)why CYI17 decided to establish his business: CB 189 at [18], how the business was faring: CB 189 at [19], and when the loan sharks began to chase him and what happened when they did: CB 189 at [20];
(iv)that he had told his family to move to his mother-in-law’s house and where he moved: CB 190 at [21];
(v)his response when the Tribunal queried how he managed to avoid the loan sharks for 10 months from April or May 2015 until he came to Australia in February 2016, being that he kept moving, only staying in places for short periods, that he only went to his mother-in-law’s house once to see his family once they were settled, and that the loan sharks had never been to his mother-in-law’s house: CB 190 at [22]; and
(vi)that CYI17’s representative indicated that she may provide further evidence in support of the application and that the Tribunal agreed to allow until 31 May 2017 for any further material to be submitted but that at the time of the Tribunal Decision (5 June 2017) no further information had been received: CB 190 at [23];
(d)set out its finding and reasons on each ground, being that the Tribunal:
(i)did not find CYI17 to be a credible witness, with key elements of his evidence being vague, inconsistent and unconvincing: CB 191 at [32]; and
(ii)accepted that CYI17 went into business supplying eggs to local businesses and that this proved not to be profitable, but did not accept that CYI17 borrowed money from a loan shark, could not meet his repayments, and fled to Australia because loan sharks beat and harassed him: CB 191 at [33];
(e)reached the above findings because:
(i)the Tribunal did not accept that someone with a qualification in accounting, who has worked as an account executive in a merchant bank, would take a loan from an unlicensed loan shark in the circumstances outlined by CYI17 (at what amounted to an effective compound interest rate of approximately 100 per cent), in circumstances where his business was suffering due to a proportion of his customers failing to pay their bills. When CYI17 was queried by the Tribunal that it seemed very surprising that a trained accountant who had worked in the banking industry would go to a loan shark, CYI17 said that it was not as easy to go to bank where there would be a lot of paperwork and where he might not meet all the requirements. While the Tribunal accepted that this might be the case the Tribunal considered that CYI17, given his background, would have a sound understanding of his capacity to repay the claimed loan and did not accept that he would have entered into such arrangements given his comment that he was only able to meet his payments for two to three months before his funds were exhausted, and he was no longer able to meet his repayments, indicating that his financial situation was very poor: CB 191 at [34];
(ii)CYI17 was inconsistent in his statements at the Tribunal Hearing regarding the health of his business, indicating that initially the business was going very well, but then indicating that some customers were failing to pay him and that after eight months to one year he had to borrow money to maintain his cash flow. When the Tribunal queried him that he appeared to have a very simple business model with low overheads and asked why he continued to pay cash to his supplier for eggs and then provide the eggs to customers who did not pay him, CYI17 replied that they were regulars and he was afraid he would lose their business to others. The Tribunal found it difficult to conceive that someone with a background in banking would run down his finances, then borrow from a loan shark, and then continue to make large cash purchases of bulk eggs because he wanted to continue providing eggs to customers who were not paying for their deliveries out of a sense of loyalty to them as “regulars”. When CYI17 was later queried as to whether he had fully exhausted his finances, he said he had, and then said that he had stopped delivery to some customers, but kept supplying to others but they were in a bind and not able to pay him either, and eventually most could not pay him. The Tribunal did not accept this account as credible: CB 192 at [35];
(iii)CYI17 indicated in his written Protection Visa application that after about three months he realised he would not be able to pay the loan shark anymore due to the high increase in the interest but indicated that he did pay them as agreed. At the Tribunal Hearing however, he made no mention of the interest rate being increased or the amount of the weekly payment increasing beyond the initially agreed amount. When questioned at the Tribunal Hearing as to whether he had sought to renegotiate the repayments when he realised he could not meet the weekly repayments, CYI17 replied that the loan sharks would not accept less than RM1,000 per week. The Tribunal found these two accounts to be inconsistent: CB 192 at [36];
(iv)CYI17 commented that in or around April or May 2015 when he had not been able to make repayments he was beaten and threatened by the loan sharks and went into hiding until he came to Australia in February 2016. He provided cash receipts of the large quantities of eggs he was purchasing. When it was put to him that the receipts were from July 2015 while he had indicated that he was attacked or in hiding from April or May 2015, he was not able to provide an explanation and the Tribunal found he was not able to explain these inconsistencies in his account: CB 192 at [37];
(v)the Tribunal did not accept that CYI17 would have fled to Australia leaving his wife and son living in Malaysia at his mother in law’s residence located approximately 10 kilometres from where they had been residing previously given his claims about being beaten, that loan sharks are dangerous gangsters who could kill him, that there are many loan sharks in his area, and that they have their own ways to find his whereabouts and that it would be easy for them to find him wherever he was in Malaysia. When queried about this, including in the context of the press reports (including one which CYI17 provided to the Tribunal), CYI17 said that perhaps the loan sharks are not bothered to find his family. The Tribunal found this remark to be inconsistent with CYI17’s own claims regarding how powerful and dangerous loan sharks are and with the country information provided by CYI17 which indicated that loan sharks harass family members to get debts paid. CYI17 had claimed that the loan shark took a copy of his national identity card which included his address as well as a photograph of his then rental house and car and claimed they were able to find the house and splash red paint on it. The Tribunal considered that loan sharks could use the information in the documents to identify CYI17’s wife and locate his family who had only relocated a short distance away. The Tribunal considered that if CYI17 had fled owing RM50,000 to a loan shark plus expected interest payments of RM100,000 and if loan sharks operated in the manner indicated by CYI17, the loan sharks or their agents would have located his wife at his mother in law’s residence and harassed her in relation to the repayment of the claimed debt: CB 192-193 at [38];
(vi)in his Protection Visa application CYI17 said he had moved from his house to his mother-in-law’s house but “they [the loan sharks] had their own ways to find out my whereabouts” so he left his family and “ran everywhere” until he came to Australia. The Tribunal put to him that this was different to his account at the Tribunal Hearing where he indicated that he told his family to move to his mother-in-law’s house and he started moving around and went to Kuala Lumpur, Malacca and Johor. CYI17 replied that he had friends he stayed with or he slept in his van. When the Tribunal queried whether he had ever stayed at his mother-in-law’s residence, he said he did once when he went to see his family once they were settled. When queried why he felt he had to leave there he said the loan sharks would still be in the area and would find him. The Tribunal did not consider that he satisfactorily explained the inconsistencies in his evidence in relation to this matter and found that his evidence (that he needed to move away and “ran everywhere” as loan sharks might locate him at his mother in law’s residence) further highlighted the risk that loan sharks, if looking for him, would have been able to locate, harass and potentially seriously harm his family: CB 193 at [39]; and
(vii)based on a cumulative consideration of the matters considered above the Tribunal did not accept that CYI17 borrowed money from a loan shark between December 2014 and February 2015, was unable to meet repayments, and around April-May 2015 was beaten and threatened by loan sharks or their agents and had to go into hiding until he came to Australia in February 2016. Accordingly the Tribunal did not accept that CYI17 faced a real chance of serious harm a or a real risk of significant harm from a loan shark or their agents or associates or hired gang members acting on their behalf or anyone else should he return to Malaysia, and was therefore not satisfied that CYI17 was a person in respect of whom Australia had protection obligations under s 36(2)(a) of the Migration Act: CB 193 at [40]-[42]; and
(f)considered the complementary protection criteria under s 36(2)(aa) of the Migration Act, and having regard to its previous findings of fact (as set out above) was not satisfied that CYI17 was a person in respect of whom Australia had complementary protection obligations; and
(g)affirmed the Delegate’s Decision: CB 194 at [46].
JUDICIAL REVIEW APPLICATION
Grounds
CYI17’s grounds of review in the Judicial Review Application are as follows:
1. The decision of the Tribunal is affected by illogicality.
2.The Tribunal failed to evaluate whether detention upon return to MALAYSIA, “even if … for a few days”, amounted to serious or significant harm.
3.The Tribunal applied the wrong test, in that s 91R(3) of the Migration Act 1958 (Cth) (the Act) was not in force at the time of the decision of the Tribunal.
4.The Tribunal, constructively, failed to perform its function of conducting a review as required by the Act, in that it failed to consider the evidence.
CYI17’s Affidavit
In CYI17’s Affidavit he submitted as follows:
…
3. My evidence was not given adequate weight. The member formed an opinion and discredited my claims on the basis of his opinion.
4.The member chose his own opinion which was formed after a three hour interview rather than the evidence and statement I gave.
5.I believe I was not provided with natural justice and my claims were not considered properly.
…
Because CYI17 was self-represented, the Court will consider the above material from CYI17’s Affidavit as submissions asserting jurisdictional error in the Tribunal Decision on the bases there set out. The Court is otherwise cognisant that it should remain independently alert to the possibility of a jurisdictional error existing in the Tribunal Decision: MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; (2015) 238 FCR 158 at [100] and [112] per Mortimer J; Ludgero v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1060; (2021) 358 FLR 215 at [26] per Judge Lucev, however, it suffices to observe that on its review of the materials before it the Court has concluded that there is no possible jurisdictional error arising out of the Tribunal Decision beyond the possible jurisdictional errors alleged in the Judicial Review Application and arising from CYI17’s Affidavit.
CYI17’s submissions
Pursuant to the Registrar’s orders of 7 March 2018 referred to at [5] above, CYI17 was required to file written submissions 28 days before the hearing in this Court. CYI17 did not do so. At hearing, the Court explained the nature of jurisdictional error to CYI17, and that it was for him to establish that the Tribunal had made a jurisdictional error in the Tribunal Decision: Transcript, pp 2-3. The Court invited CYI17 to make submissions in support of the Judicial Review Application, and in response he said that:
(a)he had commitments and had to pay off debts, and still had to pay those debts off;
(b)he was 52 years old and it would be very difficult if he were to go back to Malaysia to secure any sort of employment;
(c)with the current pandemic situation it was very difficult to obtain work;
(d)his son was still in school, and CYI17 was the only person in the home who was a bread-winner, and the only person that was employed;
(e)he had contributed to the workforce in Australia and had sustained injuries, including injuries to his left thumb, and to his index finger that needed treatment (the latter being the subject of the Certificate referred to at [9] above); and
(f)he appealed to the Court to give him due consideration to enable him to stay in Australia for a further three years and he promised to leave Australia in 2025: Transcript, p 3.
When CYI17 was expressly asked by the Court as to whether he wished to say anything with respect to “any alleged error” in the Tribunal Decision he said that he had nothing to say about that because he had given the Tribunal “an actual account of facts that occurred, and they did not accept it”: Transcript p 4. When CYI17 was asked whether he had anything that he wished to say by way of reply to the submissions made on behalf of the Minister CYI17 indicated that he did not have anything that he wished to say: Transcript, p 7.
Jurisdictional error required
This Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. An instance where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in such a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act, may constitute a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300, as may legal unreasonableness: as to which see the summary in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J.
To constitute jurisdictional error, the error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ, as follows:
Materiality was subsequently explained in Minister for Immigration & Border Protection v SZMTA [2019] HCA 3, (2019) 264 CLR 421; (2019) ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon CYI17 to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424.
It is not within the jurisdiction of this Court to review the merits of the Tribunal Decision, or determine CYI17’s claim for protection: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”).
Consideration - ground 1
The allegation of illogicality made in ground 1 is not particularised.
The failure to particularise a ground of review can be a sufficient basis for a ground of review to be dismissed: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35] per Gilmour J (and cases there cited); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 (“DKN20”) at [60] per Perry J, citing WZAVW.
Even where there is an unparticularised ground of review it is necessary for self-represented applicants to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a ground of review: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] per Colvin J, and then to have regard to any oral submissions so made: DKN20 at [60] per Perry J; FHX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202 at [17] and [20] per Judge Ladhams. The Court heard oral submissions from CYI17 but those submissions did not address, identify or particularise any jurisdictional error in ground 1, or any other ground or possible ground: see [16] above.
The failure to particularise ground 1 therefore provides no basis for a finding of jurisdictional error in relation to ground 1 of the Judicial Review Application.
An instance where a Tribunal has made findings that are legally illogical, irrational or unreasonable may amount to jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [130]-[131] per Crennan and Bell JJ. In order to establish jurisdictional error, “extreme” illogicality must be demonstrated, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 672; (2013) 136 ALD 41 at [148] per Robertson J; SZMDS at [131] and [135] per Crennan and Bell JJ; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [60] per McKerracher, Griffiths and Rangiah JJ (“CQG15”).
Save for mere disagreement, no basis for alleged illogicality in the Tribunal’s findings is put forward by CYI17, and mere disagreement is not a basis for establishing jurisdictional error: CQG15 at [61] per McKerracher, Griffiths and Rangiah JJ. On its face the Tribunal Decision evinces an orthodox treatment of the subject matter, setting out the legislative criteria and relevant Ministerial direction concerning consideration of a Protection Visa: CB 217 at [5]-[10], CYI17’s claims: CB 218-219 at [12], the evidence: CB 219-220 at [15]-[23], and the Tribunal’s findings and reasons, which included findings on credibility and an assessment of CYI 17’s claims: CB 220-223 at [24]-[41].
Credibility was crucial to the Tribunal’s ultimate conclusions that CYI17 claims were not to be believed and that he did not therefore meet the criteria for a Protection Visa. Save for the expression of disagreement there was no specific challenge to the Tribunal’s findings on credibility. In any event, it is fair to observe that the Tribunal’s adverse findings in relation to credibility were findings that were open to it, including, for example, that:
(a)CYI17, a former accountant with a merchant bank, would not enter into an agreement to borrow money at an effective interest rate of approximately 100%;
(b)CYI17 would not continue to supply eggs to persons who were not paying him;
(c)CYI17 would not be purchasing eggs for sale at a time when he had, as he claimed, gone into hiding because of the threat from the loan sharks;
(d)the loan sharks had not bothered to find his family in circumstances where CYI17 claimed he could not return to Malaysia, or relocate within Malaysia, because the loan sharks had the means to find him and his family, yet he had moved his family (wife and son), who remained behind in Malaysia, to his mother-in-law’s house, a distance of only 10 kilometres from where CYI17 and his family had previously lived; and
(e)there were inconsistencies in relation to CYI17’s account of where he had moved to within Malaysia whilst allegedly seeking to evade the loan sharks.
The Tribunal’s findings, including, and in particular its credibility findings, were not only reasonably open to it but are findings which are logical, reasonable, and founded upon a rational basis, and were findings which a reasonable decision-maker could have made: SZMDS at [131]-[135] per Crennan and Bell JJ. Ground 1 is therefore not made out and does not establish jurisdictional error in the Tribunal Decision.
Consideration - ground 2
With respect to the assertion in ground 2 that the Tribunal failed to evaluate whether detention upon return to Malaysia amounted to serious or significant harm it suffices to observe that the Tribunal:
(a)did not find that CYI17 would be detained for any period of time in Malaysia; and
(b)rejected the entirety of CYI17’s claims,
and was therefore not required to consider whether a period of detention would amount to serious or significant harm.
Ground 2 is therefore not made out and does not establish jurisdictional error in the Tribunal Decision.
Consideration – ground 3
In the Tribunal Decision no reference was made to the now-repealed s 91R(3) of the Migration Act, but which is now reflected in s 5J(6) of the Migration Act, relating to conduct in Australia engaged in for the purpose of strengthening a person’s claims. Nor were any findings made with respect to CYI17’s conduct in Australia, and there were therefore no findings to which the now-repealed s 91R(3) of the Migration Act, or the current s 5J(6) of the Migration Act, would be relevant.
It follows that Ground 3 is entirely misconceived, and is therefore not made out and does not establish jurisdictional error in the Tribunal Decision.
Consideration - ground 4
Ground 4 provides no particulars as to the evidence which it is said was not considered by the Tribunal. The want of particularisation means that this ground is not made out: see the authorities cited at [23] above in relation to ground 1. Nothing in the very limited submissions made by CYI17 at hearing could be prayed in aid of this “no evidence” ground.
In order to succeed on a no evidence ground, CYI17 must establish that there was no evidence at all upon which the relevant findings could have been based: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11; (1990) 21 ALD 1; (1990) 5 BR 137, CLR at 356 per Mason CJ. Even “a skerrick of evidence” will mean that an allegation of jurisdictional error premised on this basis will fail: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59] per Murphy J, and that if the Court holds that the evidence in support of a relevant finding was “slight”, that will be sufficient to defeat a “no evidence” challenge to the finding: “VAS” v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]-[19] per Gray, Moore and Weinberg JJ. It is not required that evidence to support a finding be direct, and it may be found in material that permitted the Tribunal to reasonably infer a particular matter: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [39]-[41] per Gummow and Hayne JJ.
As is evident from the detailed summary of the Tribunal Decision set out at [11] above the Tribunal gave detailed consideration to the evidence given to it by CYI17, but rejected it because it was not credible, and a “no evidence” ground cannot therefore succeed as a basis for alleged jurisdictional error. Assessing the credibility of witnesses and evidence is a task for the Tribunal, and where, as here, the Tribunal has set out the relevant claims, set out the evidence in relation to those claims, and considered that evidence in detail in in arriving at a conclusion that CYI17 was a not credible witness, nothing in those findings, amply supported by the evidence of inconsistencies in CYI17’s evidence: see [27] above, supports a finding of jurisdictional error: CQG15 at [40]-[42] per McKerracher, Griffiths and Rangiah JJ, and nor does it enable CYI17 to hurdle the high bar necessary to enable this Court to make findings of illogicality, irrationality or unreasonableness in relation to the consideration of that evidence: SZMDS; CQG 15.
Ground 4 is therefore not made out and does not establish jurisdictional error in the Tribunal Decision.
Consideration – matters arising from CYI17’s Affidavit
Evidence and opinion
CYI17 submits that the Tribunal did not give his evidence adequate weight and that it preferred its own “opinion” to the evidence given to the Tribunal by CYI17: CYI17’s Affidavit at [3]-[4].
Mere disagreement, and even emphatic disagreement, with the Tribunal findings does not constitute jurisdictional error; fact finding and the weight to be given to evidence being a matter for the Tribunal, and the disagreement constituting, as here, no more than a request for impermissible merits review of the Tribunal Decision, contrary to long-standing and established principle: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; CQG15 at [61] per McKerracher, Griffiths and Rangiah JJ.
As set out at [11] and [35] above the Tribunal had regard to CYI17’s claims, and the evidence he provided to the Tribunal. In circumstances where the Tribunal found that CYI17’s evidence was not credible it was therefore open to the Tribunal to reject CYI17’s claims for the reasons which it gave. It follows that CYI17’s assertions with respect to the weight that the Tribunal gave to the evidence and the Tribunal acting upon its opinion are not made out, and do not establish jurisdictional error in the Tribunal Decision.
Natural justice/procedural fairness
CYI17’s asserted that he was not afforded natural justice (or procedural fairness) by the Tribunal: CYI17’s Affidavit at [5].
CYI17’s assertion is not particularised, and was not expanded upon at hearing, and must therefore fail for similar reasons to those set out at [23] and [33] above. Further, and in any event:
(a)CYI17 was invited to, and attended the Tribunal Hearing, with the assistance of a Malay interpreter, a hearing held in compliance with s 425 of the Migration Act; and
(b)the Tribunal Decision records and discusses that a number of concerns were raised with CYI17 at the Tribunal Hearing, such that he would have been on notice that his credibility and the truth of his claims were in issue before the Tribunal on the basis of the information that was noted by the Delegate in the Delegate’s Decision. The information that was before the Tribunal at the Tribunal Hearing was not information of a type which enlivened the Tribunal’s obligations under s 424A of the Migration Act.
CYI17’s claim of a denial of natural justice or procedural fairness is therefore not made out, and does not establish jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDERS
For the reasons set out above, the Court has concluded that none of the grounds set out in the Judicial Review Application or CYI17’s Affidavit have been made out. It follows that there will be an order dismissing the Judicial Review Application. There will also be an order amending the name of the Minister to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 24 August 2022
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