DAK18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 882

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DAK18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 882

File number:

MLG 1635 of 2018

Judgment of:

JUDGE CHAMPION

Date of judgment:

16 September 2024

Catchwords:

MIGRATION – Protection Visa – Where there was no material which support a finding that the Applicant was wholly or substantially reliant on another family member for financial, psychological or physical support – Where the Tribunal made no error in its conclusion that the Applicant should not be granted a visa on the basis that he met the same family unit criterion – Where the Tribunal did not act unreasonably in its assessment of the material because there was an evident and intelligible justification for its finding – Where the Tribunal only had to consider the country information where relevant – Application dismissed.

Legislation:

Migration Act 1958 (Cth) ss. 5, 5AAA, 5LA, 36, 430, 476, 499

Migration Regulations 1994 (Cth) regs. 1.05, 1.12

Cases cited:

Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] 231 FCR 437

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

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:

59

Date of last submissions:

9 September 2024

Date of hearing:

9 September 2024

Place:

Melbourne

Counsel for the Applicant:

Mr Overend

Solicitor for the Applicant:

WLW Migration Lawyers

Counsel for the First Respondent:

Mr Barrington

Solicitor for the First Respondent:

Sparke Helmore

Second Respondent:

Submitting appearance, save as to costs

ORDERS

MLG 1635 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DAK18

Applicant

AND:

MINSITER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CHAMPION
DATE OF ORDER:	16 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum 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:

WHAT ARE THE ISSUES?

1. The Applicant is a citizen of Malaysia. He seeks a protection visa. He last arrived in Australia on 29 November 2016 on an Electronic Travel Authority visa. He brings an application for judicial review under s. 476 of the Migration Act 1958 (Cth) as to a decision of the Administrative Appeals Tribunal made on 16 May 2018 in which the Tribunal refused to grant him the visa.

2. The issues for decision which arise in the Applicant’s application (as amended) are:

   (1)whether the Tribunal acted “irrationally or unreasonably” or otherwise failed to engage with the material in its finding that the Applicant did not meet the same family unit criterion for the grant of a protection visa set out in s. 36(2)(b) and (c) of the Act (Ground 1);

   (2)whether the Tribunal acted irrationally, unreasonably, misunderstood the relevant test or asked the wrong question in its findings about whether the Applicant would be threatened by loan sharks if he returned to Malaysia (Ground 2); and

   (3)whether the Tribunal failed to engage with the country information where relevant (Ground 3).

3. None of the grounds is made out. My reasons follow.

   WHAT IS THE NECESSARY BACKGROUND?

4. The Applicant claims that he fears harm in Malaysia as a result of his father being followed and receiving threats in relation to unpaid debts to the Ah Long, illegal money lenders. The Applicant’s parents, sister and brother also applied for protection visas in 2015. It was submitted that on a date after the Tribunal hearing in this matter visas have subsequently been granted to other members of the Applicant’s family.  

5. 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.

6. As a result, the circumstances of the grant of visas to other members of the Applicant’s family after the Tribunal’s decision is not relevant because those circumstances “did not exist at the time of the decision.”

   GROUND 1: DID THE TRIBUNAL ACT IRRATIONALLY OR UNREASONABLY IN ITS FINDING THAT THE APPLICANT DID NOT MEET THE SAME FAMILY UNIT CRITERION?

7. The Applicant contends that the Tribunal acted irrationally or unreasonably, or otherwise ignored or failed to engage appropriately with the evidential material before it, in its findings that there was no suggestion that the Applicant satisfied the same family unit criterion for the grant of a protection visa under s. 36(2)(b) or (c) of the Act.

8. I do not accept the Applicant’s submission. Although it will be necessary to step through the relevant definitions in the statute and regulations in more detail, the foundational reason that I do not accept the submission is that the Applicant did not put any material before the Tribunal that he was “dependent” on another family member because he was “wholly or substantially reliant on the other person for financial, psychological or physical support” as reg. 1.05(2) required if he were to satisfy the Tribunal that he met the same family unit criterion entitling him to the grant of a visa.  

   The relevant facts

9. The Applicant seeks to impugn the Tribunal’s findings in its Reasons at paragraph [26] as follows:

   26. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   [Emphasis added]

10. In his protection visa application, the Applicant wrote (Q93):

    I moved to my aunt’s house after my parents left Malaysia in January 2015.  I was doing my degree and I was on my third year in degree.  I live with my aunty most of the time since the last few years as my parents keep moving from one place to another.  My aunty lives at [address omitted]

11. Further, the Tribunal noted (among other matters) at [11] of its Reasons that the Applicant presented in his visa application that:

    I had to finish an internship from February to August of 2016 which is why stayed with my Aunty and I don’t want to be a burden on my Aunty which is why I migrated to Australia to keep her family safe as well.

12. At [17] of its Reasons the Tribunal said the following:

    The applicant claims he left Malaysia to join his parents who have applied for a protection visa. The applicant is in no way a dependent of the parents. The applicant is an adult and aged 25, if the parents were granted a visa to stay in Australia the applicant would not be considered a dependent on the parent’s visa. Further, the applicant claims he will be separated from his parents for an uncertain period of time. The applicant had been in boarding school from 2006 until 2010 then again from 2011 until 2015 when he was living with his Aunt and already separated from his parents.

    [Emphasis added]

    The statutory context – the “same family unit” criterion

13. Under s. 36(2)(b) and (c) of the Act a person is entitled to be granted a protection visa if the visa applicant is a “member of the same family unit” as a person to whom Australia has protection obligations. Section 36(2)(b)(i) picks up the refugee criterion. Section 36(2)(c)(i) picks up the complementary protection criterion.

14. Whether an applicant is a “member of the same family unit” requires an analysis of the relevant definitions in the Act’s dictionary in s. 5(1), which in turn incorporates definitions in reg. 1.12 and 1.05A of the Migration Regulations 1994 (Cth).

15. Section 5(1) of the Act defines “member of the family unit” and “member of the same family unit” as follows:

    member of the family unit of a person has the meaning given by the regulations made for the purposes of this definition

    member of the same family unit: one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.

16. Regulation 1.12 in its relevant part is as follows:

    Scope

    (1)This regulation has effect for the purposes of the definition (the main definition) of member of the family unit in subsection 5(1) of the Act.

    …

    Protection, refugee and humanitarian visas

    (3)Subregulation (4) has effect for the purposes of the main definition so far as it is  relevant to a provision of the Act or these Regulations applying in relation to any of the following visas:

    (a)Protection (Class XA) visa;

    …

    (4)A person is a member of the family unit of another person (the family head) if the person is:

    (a)a spouse or de facto partner of the family head; or

    (b)a dependent child of:

    (i) the family head; or

17. Regulation 1.05A(2) is as follows as to the meaning of “dependent” for the purposes of deciding if a person is a “dependent child”:

    (2) A person (the first person) is dependent on another person for the purposes of an application for:

    (d) a protection visa;

    …

    if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.

    [Emphasis added]

18. The cumulative effect of these definitions is that to be a member of the same family unit as his parents (or his siblings) for the purposes of s. 36(2)(b) or (c) of the Act, the Applicant would only be a dependent of his parents and qualify for a visa on that basis if they were persons to whom Australia owed protection obligations and if he was “wholly or substantially reliant on the other person for financial, psychological or physical support.”

19. The Tribunal was correct to observe, as it did at [26] of its Reasons, that there was nothing in the material before it to suggest that the Applicant was “dependent”  as defined on other family members. In particular, there was nothing in the material to suggest that he was wholly or substantially reliant on another family member for financial, psychological or physical support.

    No relevant family member held a protection visa

20. The First Respondent submits (and I accept) that even if the analysis set out above is wrong, those family members did not as of the date of the Tribunal decision hold a protection visa. Therefore, the Applicant did not meet the criteria in s. 36(2)(b) and (c) which provides that the criterion will only be met if the relevant family member “holds a protection visa”. The Applicant did not submit that there was any jurisdictional error in the Tribunal not adjourning its hearing in a way which was unreasonable in the legal sense, pending the determination of the applications of other family members for protection visas.

21. As of the date of the Tribunal decision in May 2018, the family members did not currently hold a protection visa as the statute requires. It is immaterial that the Applicant’s family members were granted visas at a later date. The grant of visas at a later date did not mean the Applicant was entitled to a visa under s. 36(2)(b) and (c) as of 16 May 2018 (the date of the Tribunal’s decision).

22. In conclusion, Ground 1 is not made out because it cannot be said that there was the absence of an “evident and intelligible foundation”, the phrase Allsop CJ deployed in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [10], for the Tribunal’s conclusion that there was “no suggestion” that the Applicant was not a “dependent child” in the required sense. All the material was the other way, namely that he had been living independently from his parents for some time and was not wholly or substantially reliant on them financially, psychologically or physically.

    GROUND 2: DID THE TRIBUNAL ACT IRRATIONALLY, UNREASONABLY, MISUNDERSTAND THE RELEVANT TEST OR ASK ITSELF THE WRONG QUESTION AS TO WHETHER THE APPLICANT WOULD BE THREATENED BY LOAN SHARKS IF HE RETURNED TO MALAYSIA?

23. The Applicant seeks to impugn the Tribunal’s findings in its Reasons at paragraphs [18]–[25].

24. The Applicant’s submissions are that the Tribunal “acted unreasonably, misunderstood the relevant test or asked the wrong question.” The Applicant develops this contention by reference to three examples it termed the first example, second example and third example to which I will come to shortly.

25. It is first necessary to set out some matters of principle.

26. As far as the Applicant submits that the Tribunal acted unreasonably, I understand his submission to “concentrate on an examination of the reasoning process” (see Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] 231 FCR 437, [47]). He says that on an examination of the Tribunal’s reasoning there was an absence of an “intelligible justification” for the factual determinations the Tribunal made.

27. As the Full Court said in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45]:

    Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: SZMDS at [130]- [132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question is “whether a decision-maker could reasonably come to the conclusion” reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.

28. As said by Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [52], legal reasonableness is the “minimum to be expected of any reasonable repository of the power”. Within the boundaries of legal reasonableness, the decision-maker had some latitude of choice as to the determination of the factual matters which underpinned its ultimate conclusions.

29. In answering the ultimate statutory question, the Tribunal had to make assessments along the way as to the material “upon factual matters upon which reasonable minds could reasonably differ” (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21, [137]).

30. As far as the Applicant submits that the Tribunal misunderstood the relevant test or asked the wrong question, the Tribunal’s statutory task was to decide whether the Applicant had a well-founded fear of persecution for reasons of race, religion nationality, membership of a particular social group or political opinion under the refugee criterion.  Further, the Tribunal had to decide under the complementary protection criterion whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Malaysia, there was a real risk that he would suffer significant harm. Necessarily, the Tribunal would have to evaluate the evidence “along the way” in reaching its assessment as to the ultimate statutory issues.

31. As far as the Applicant submits that the Tribunal asked itself the wrong question, he will only prove jurisdictional error on that basis if the Tribunal did not ask itself the relevant legal questions as to whether the Applicant was a person to whom Australia owed protection obligations under ss. 36(2)(a) or (aa) of the Act.

32. Further, in terms of the statutory context, I note that s. 5AAA of the Act provides that “it is the responsibility of the [visa applicant] to specify all particulars of his or her claim… and to provide sufficient evidence to establish the claim”.

    The first example: Did the Tribunal’s reference to the Applicant’s vagueness about his father’s claim disclose error?

33. In his first example, the Applicant impugns the Tribunal’s findings at [20] where the Tribunal said:

    The applicant was vague about his father’s money problems and the Ah Long which is essentially the basis for his claims. When questioned further about them the applicant did not know how much his father had borrowed or from whom or when.

34. The Applicant submitted that:

    the applicant’s specific knowledge of the details of his father’s money problems had minimal if any probative weight to the issue of whether or not the applicant’s claims were plausible, particularly noting that it was not unreasonable for him to have had little knowledge of his father’s money problems.

35. I do not accept that the Applicant’s lack of the knowledge about his father’s claim had “minimal if any probative weight” or logical connection to the statutory decision to be made. If the Applicant provided a detailed and comprehensive account of his father’s problems with the Ah Long that would have supported his claim. A paucity of evidence necessarily was likely to have the opposite effect. The Tribunal’s observation at [20] that the Applicant had little knowledge about his father’s money problems was logically probative of whether the Applicant had provided “sufficient evidence” under s. 5AAA to establish his claim.

36. As a result, it was relevant and reasonable for the Tribunal in the discharge of its statutory task to observe at [20] that the Applicant did not know much about what the First Respondent termed “the essential factual premise of his claim”, namely how much his father had borrowed, from whom or when. Further, it was pertinent for the Tribunal to observe the Applicant did not invite his parents or anyone else to be a witness in his case to assist to fill any gaps in his material. The Applicant’s vagueness about his father’s money problems and the absence of supporting evidence from any witness were both relevant to the issue of whether the Applicant had provided “sufficient evidence to establish the claim” under s. 5AAA.

1. The Applicant submits that the issue concerned the “objective risk” the Applicant faced. So much is true. I accept the First Respondent’s submission that: “the determination of objective risk turns upon the evidence provided by the applicant”.

2. The Applicant’s first example does not prove his contention that the Tribunal acted unreasonably, misunderstood the relevant test or asked itself the wrong question.

   The second example: Was the Tribunal in error by not giving any weight to the Applicant’s claim that the police told his parents that they could not do anything and that it was best to leave Malaysia?

3. The Tribunal at [22] of its Reasons said the following:

   The applicant said his parents had filed a police report about the Ah Long back sometime between 2003-2005. The applicant said that the police even suggested his parents leave Malaysia. Given that the applicant was not there, does not know how much his father borrowed, when the report was filed and about what the Tribunal does not give any weight to the claim that the police can’t do anything or that they told the applicant’s parents it was best to leave Malaysia.

4. The Tribunal’s “reasoning along the way” not to give what the police had told his parents, any “weight” was not “illogical or irrational” in the sense explained in Sabharwal. As the Tribunal observed, the Applicant’s information about the police report was of very limited probative value. Firstly, it was second-hand, or arguably, third-hand, because it was about information the police had told his parents who had then relayed what they had been told to him. Secondly, it concerned the retelling of a circumstance more than a decade before without it being linked to prospects of future harm and the situation in Malaysia in 2018. Thirdly, the statement about the information the police had conveyed to his parents was apparently unsupported by any documents.

5. The Tribunal was within its area of decisional freedom and did not act unreasonably by not giving this matter any weight.

   The third example: Did the Tribunal err by not accepting the Applicant’s claims to fear harm when he had not personally encountered the Ah Long?

6. At [24] of its Reasons, the Tribunal concluded that it did “not accept that if the applicant returned to Malaysia he will face a real chance of persecution from the Ah Long or anyone associated with them”. The Tribunal prefaced this conclusion by saying that it reached this conclusion “given these findings” in an apparent reference to findings that it had made in the preceding paragraphs of its reasons. 

7. As to these findings in the preceding paragraphs of its Reasons, at [21] of its Reasons, the Tribunal noted that the Applicant had travelled “in and out of Australia” in 2016 and 2017.  The Tribunal inferred from the Applicant’s recent travel to and from Malaysia that he did not have “any urgent or personal fears” about returning there. 

8. At [23] of its Reasons, the Tribunal noted that since 2003 (14 years earlier) “the applicant has not had one instance where he has encountered the Ah Long and they have threatened him or done anything specifically targeted at him.”

9. I do not accept that the Tribunal’s reasoning in paragraphs [21] or [23] is properly described as illogical or irrational.  As the High Court plurality said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22 at 575:

   In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.

10. Necessarily, past events are a guide to future events. Contrary to the Applicant’s submission, it was logical and rational for the Tribunal to weigh in its assessment of whether the Applicant had a subjective “fear” of persecution to weigh in its consideration the fact that, of his own volition, he had recently travelled to and from Malaysia, the country where he said he had a “fear” of serious harm. As to whether any subjective fear was “well-founded”, it was logical and rational for the Tribunal to consider that the Applicant had not personally encountered the Ah Long for 14 years. The fact of no encounters for such a long period was relevant as to whether any fear of harm was well-founded.

11. The Applicant has not established any error as to his third example.

12. In conclusion, in my assessment the Applicant’s examples are complaints about the Tribunal’s factual findings which invite merits review contrary to proper principles on judicial review (Cf. Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272).

    GROUND 3: DID THE  TRIBUNAL FAIL TO ENGAGE WITH THE COUNTRY INFORMATION?

13. The Minister had made “Direction No. 56 – Consideration of Protection Visa Applications” (Direction No 56) under s. 499 of the Act.

14. The Tribunal had to take into account any DFAT country information assessment “where relevant”.  Item 1.1 of Direction No 56 recorded that the country information report had been prepared “for protection status determination purposes only”. Direction No. 56 provided at item 3:

    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]

15. The Tribunal’s Reasons at [9] expose that it knew it had to and take into account:

    relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    [Emphasis added]

16. As Derrington and Thawley JJ noted in Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16 at [91], the applicant bears the onus of establishing from a failure to refer to a matter in written reasons that the inference that should be drawn is that the matter was overlooked. Because the Tribunal expressly referred to the country information, I infer that it had regard to it. Section 430(1)(c) provides that the Tribunal must set out “findings on any material questions of fact”. It does not impose an obligation to set out findings “that were immaterial” (Kumar, [96]).

17. Country information in the DFAT Report had very limited relevance because the Tribunal did not accept the Applicant’s claim at a factual level, because of matters personal to him. The decision not to grant the visa was a result of those personal matters as to which country information was not relevant.

18. The First Respondent accurately noted that the Applicant in his written submissions did not point to any part of the DFAT report which the Tribunal had failed to take into account and which had a material relevance to his claim such that had the Tribunal taken into account that country the result could realistically have been different.

19. In his oral submissions, the Applicant referred to paragraph 3.78 of the DFAT report that set out:

    Credible contacts advised that Malaysian authorities would likely view individuals who access loan shark services as having participated in an illegal practice.

20. The Applicant did not prove that this element of the country information was relevant to his claim. It was no part of the Applicant’s claim that he personally had accessed loan shark services and therefore authorities would likely view him as a participant in an illegal practice.

21. I accept that if the Tribunal made different findings as to matters personal to the Applicant, the country information may have assumed some relevance. For example, country information may have been relevant as to whether effective protection measures were available to the Applicant in Malaysia under s. 5LA or s. 36(2B)(b) of the Act. In the circumstances of this case those matters traversed in the country information did not arise for consideration in the context of the Tribunal’s reasons which rejected the Applicant’s claims for reasons personal to him and were not relevant.

22. The Tribunal made no error in failing to take into account any relevant matter under Direction No. 56.

    WHAT IS MY CONCLUSION?

23. I will dismiss the application. I will order the Applicant pay the First Respondent’s costs fixed in the amount of $8,371.30.

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.

Associate:

Dated:       16 September 2024