DAP23 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 490

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DAP23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 490

File number(s):	PEG 304 of 2023
Judgment of:	JUDGE CAMERON
Date of judgment:	6 May 2024
Catchwords:	MIGRATION – Persecution – Review of Administrative Appeals Tribunal (“Tribunal”) decision – Protection visa – Refusal - No matter of principle.
Legislation:	Migration Act 1958 (Cth) ss 36, 474
Cases cited:	Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Division:	General
Number of paragraphs:	15
Date of hearing:	6 May 2024
Place:	Perth
Counsel for the Applicant:	The applicant appeared in person
Solicitor for the First Respondent:	Australian Government Solicitor
Solicitor for the Second Respondent:	Submitting appearance save as to costs

ORDERS

PEG 304 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DAP23

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE CAMERON
DATE OF ORDER:	6 MAY 2024

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $2,000.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

Judge Cameron

INTRODUCTION

1. The applicant is a citizen of Malaysia who arrived in Australia on 6 April 2017. On 4 July 2017, he lodged an application for a protection visa with what is now the Department of Home Affairs alleging that he feared persecution in Malaysia because of a debt his family business incurred for which he was viewed as responsible for as the eldest son in the family. 

2. On 13 September 2017, the applicant’s application was refused by a delegate of the first respondent (Minister).  The applicant then applied to the second respondent (Tribunal) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision. In this judicial review proceeding, the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed. 

   LEGISLATION

4. At all relevant times the Act provided as follows:

   36 Protection visas—criteria provided for by this Act

   …

   (2)       A criterion for a protection visa is that the applicant for the visa is:

   (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)        is mentioned in paragraph (a); and

   (ii) holds a protection visa of the same class as that applied for by the applicant; or

   (c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i) is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant

   (2A)     A non-citizen will suffer significant harm if:

   (a)the non-citizen will be arbitrarily deprived of his or her life; or

   (b) the death penalty will be carried out on the non-citizen; or

   (c) the non-citizen will be subjected to torture; or

   (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e) the non-citizen will be subjected to degrading treatment or punishment.

   (2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

   (b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

   (c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

   …

   BACKGROUND FACTS

5. In its decision, the Tribunal summarised the facts alleged in support of the applicant's application for a protection visa.  As summarised by the Tribunal, the applicant relevantly made the following claims in his visa application:

   15. The applicant claimed that he left Malaysia because his family had a big debt issue that was very hard to resolve.  Their business went bankrupt, and they had a problem with other people who had joined their business.  People kept asking for repayment of their money or otherwise they would do something to the family.  The group had lost a total of 4.8 million ringgit and his own family had lost 1.5 million ringgit. The other partners kept asking for their money back from the family and even the applicant.  His siblings found it hard to go out anywhere because they were afraid.  The applicant claimed that all the debt collectors were unhappy, angry and full of hatred. They kept texting and used very bad language.  The family kept watching their backs since that day.  They were blacklisted so they can’t borrow money from the bank to pay people back and their lives were stuck.

   16.The applicant stated that because he was the eldest male amongst his siblings, he was responsible for his dad’s case which is the family business case. His father was older so he did not think the father would be able to pay off all the debts, so the debts would become the applicant’s responsibility. These people would come after him and he would have no peace. Even if he stayed in Malaysia, he would have to keep moving but he did not want to just keep running away because people could track him down anywhere in Malaysia through the Internet. He added that money was a sensitive issue.

   17. The applicant claimed that he could seek assistance from the police, but they were unable to protect him and his family at all times. They would only go around his house at night-time, and their protection would not last forever. The applicant also stated that even if he moved to another part of Malaysia, he would not be able to stay in that place for long and would need to keep moving in case he was discovered.

   18. The applicant claimed that he received a very inconvenient text from a debt collector, so the family started to hide to avoid detection. They changed their phone number and lived in a small village. Only his mother was not on a blacklist. The applicant claimed that he moved far away from the house where he lived and he went to school far away from his house, which was why he did not ask for help.

6. The applicant also appeared before the Tribunal on two occasions, namely 13 September 2023 and 20 November 2023, and supplied to it various supposedly supportive documents. 

7. The applicant told the Tribunal that:

   (a)his problems related to his father's business in around 2015 to 2016.  His father had secured a big contract to supply food to Borneo and introduced some business partners so that they could together fulfil the contract.  However, they were never paid for what they supplied and his father and the business partners lost their money;

   (b)the business partners sought their money from his father because he was the one who had involved them in the project;

   (c)they blamed his father for the failure of the project and they also came after him as he was his father's eldest son; 

   (d)the business partners also thought that his father had “scammed” them even though they had not put any money into the venture;

   (e)the existence of two businesses run by the family explained why, apart from a document relating to his father's bankruptcy in 2011, none of the documents he had initially supplied to the Tribunal mentioned his father's name;

   (f)his father had not suffered at the hands of his partners because from time to time he had paid them small amounts from his farm's earnings;

   (g)he, the applicant, had never suffered any harm from the aggrieved business partners, only one of whose names he knew, even though they had threatened to hit him; and

   (h)documents he later supplied to the Tribunal did not indicate that his father owed any money to third parties in relation to foodstuffs sent to Borneo. 

   The Tribunal’s decision and reasons

8. After discussing the claims made by the applicant and the evidence before it, the Tribunal was not satisfied that he is a person to whom Australia has protection obligations under s.36(2) of the Act. The Tribunal's relevant findings and reasons were summarised by the Minister in his written submissions in the following terms, which I adopt.

   15.The Tribunal accepted that the applicant’s family operated a business (Business A) his father was declared bankrupt, Business A was initially registered in the name of the applicant’s mother and later in the name of the applicant’s older sister and the father, the mother, the older sister and the applicant were all involved in this business at various stages whilst the family were operating the business. The Tribunal also accepted that a business venture by a particular company (Company K) ultimately failed and left behind large debts that were owed to its small business suppliers.

   16.In light of the information provided by the applicant, the Tribunal accepted that Business A was involved in a business relationship with Company K and that, as a result of the collapse of the Company K venture, Business A suffered losses and was owed money by Company K. The Tribunal noted, however, that the applicant had not produced any evidence that his family business owed money to any third parties or that such parties had demanded payment.

   17.The Tribunal then summarised the concerns that it had with the applicant’s inability to name or provide any details of the persons to whom he claimed money was owed, nor the names of the debt collectors sent after his family. The Tribunal continued:

   On the evidence before it, and in particular the applicant’s lack of details about the names of the people or businesses who were demanding money from him and his family business, the Tribunal does not accept that the applicant’s family ever involved any third-party businesses in its dealings with [Company K]. Accordingly, the Tribunal finds on the evidence before it that no person or business has ever demanded any money from the applicant or his family business for any dealings with [Company K] and that no person or business, including any debt collectors, have ever threatened the applicant or his family for any dealings with [Company K].

   The applicant has claimed that if he returned to Malaysia now or in the reasonably foreseeable future, he fears harm from people and businesses who are seeking payment of money from the applicant and his family because the applicant’s father lured these people and businesses into the unsuccessful [Company K] venture. However, the Tribunal has already found that the applicant’s family never involved any third-party businesses in its dealings with [Company K], that no person or business has ever demanded any money from the applicant or his family business for any dealings with [Company K] and that no person or business has ever threatened the applicant or his family for any dealings with [Company K].

   18.The Tribunal was not satisfied that if the applicant returned to Malaysia now or in the reasonably foreseeable future that there is a real chance that he would suffer any harm for reason of people and businesses seeking payment of money from the applicant and his family because the applicant’s father allegedly lured these people and businesses into the unsuccessful venture of Company K. Where the applicant had not made any other claim for protection, the Tribunal concluded that the applicant did not meet s 36(2)(a).

   19. Having found that the applicant would not face a real chance of harm for the reasons claimed, and noting that the ‘real chance’ and ‘real risk’ test were the same, the Tribunal concluded that the applicant did not meet s 36(2)(aa).

   (Footnotes omitted)

   THE PROCEEDING IN THIS COURT

9. In his application commencing this proceeding, the applicant alleged:

   1.The decision made to refuse my Protection Visa application by the decision maker has a jurisdictional error.

   2.The decision maker's statement about the applicant not facing harm when returned to Malaysia is purely based on his/her personal opinion and not on any facts.

   Ground 1

10. The first allegation in the application is unparticularised and therefore lacks meaningful substance. However, it is worth noting that the applicant was given a hearing before the Tribunal where matters of concern were put to him and it has not been suggested that any potentially material evidence was not considered or that the Tribunal's decision was affected by legal unreasonableness or irrationality.

11. It is not apparent that the Tribunal breached any of its procedural fairness obligations to the applicant or that its decision was affected by an error which would go to its jurisdiction.

    Ground 2

12. The second allegation made by the applicant is one of arbitrariness but, the foregoing rehearsal of the information before the Tribunal and its stated reasons for decision makes it clear that this ground is untenable. The Tribunal considered the evidence before it and reached conclusions which were open to it on that evidence for the reasons it gave.

    Submissions at hearing

13. In his submissions at hearing, the applicant argued that he had given solid evidence to the Tribunal. That submission together with the remainder of the applicant's submissions at hearing was, with respect, no more than an invitation to this Court to substitute its view of his entitlement to a visa for that of the Tribunal.  The Court cannot do what the applicant implicitly seeks.  Its role is to review the legal correctness of the Tribunal's decision and its procedure not to consider whether a different decision might, at least in the Court's view, have been one to have been preferred over the one actually reached by the Tribunal.

    CONCLUSION

14. None of the matters which the applicant has raised identified jurisdictional error on the part of the Tribunal.

15. Consequently, the application will be dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.

Associate:

Dated:       3 June 2024