DBR18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 499
•5 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DBR18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 499
File number: SYG 1641 of 2018 Judgment of: JUDGE D HUMPHREYS Date of judgment: 5 June 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection (Subclass 866) visa – Application for an extension of time – Where the substantive application has no merit - Application dismissed. Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 476, 477
Migration Regulations 1994 (Cth) sch 2
Cases cited: Minister for Immigration v Li (2013) 297 ALR 225
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration v SZMDS [2010] HCA 16
Singh v Minister for Immigration and Border Protection [2017] FCAFC 195
SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284
SZTSU v Federal Circuit Court of Australia [2015] FCA 224
SZUTM v Minister for Immigration and BorderProtection (2016) 241 FCR 214; [2016] FCA 45
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of last submission/s: 27 May 2024 Date of hearing: 27 May 2024 Place: Parramatta Solicitor for the Applicant: Applicant appearing in person Solicitor for the Respondents: Clayton Utz ORDERS
SYG 1641 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DBR18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRA
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
5 JUNE 2024
THE COURT ORDERS THAT:
1.The Application for an extension of time is refused.
2.The Application is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $4189.38
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 D HUMPHREYS
INTRODUCTION
The applicant is a citizen of Malaysia. The applicant first arrived in Australia on a visitor’s visa on 20 September 2015. The applicant applied for a Protection (Subclass 866) visa (“the visa”) on 16 December 2015.
A delegate of the Minister for Immigration (“the delegate”) refused to grant the visa on 21 April 2016. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). On 25 July 2017, the Tribunal affirmed the decision not to grant the applicant a protection visa.
The applicant now seeks judicial review of the Tribunal’s decision in this Court. For the reasons set out below, the application must be dismissed.
PRELIMINARY ISSUE - APPLICATION FOR AN EXTENSION OF TIME
The applicant did not apply to this Court for judicial review until 7 June 2018. The applicant was outside the 35-day time limit imposed by s 477(1) of the Migration Act 1958 (Cth) (“the Act”) by 282 days.
At the time the applicant filed his application he was represented.
Pursuant to s 477(2) of the Act, the Court may extend time for the making of an application if satisfied it is necessary to do so in the interests of the administration of justice.
It is only if the precondition that the Court is satisfied that an extension of time is “necessary” in the interests of the administration of justice that an order for extending time should be made: (see; SZTSU v Federal Circuit Court of Australia [2015] FCA 224 (“SZTSU ”) at [2]-[3] per Mortimer J). It is a discretionary matter for the Court, taking account of the following considerations: (see; SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [46]-[48]):
(a)Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b)Whether there is any prejudice to the other party; and
(c)Whether the applicant’s substantive application for judicial review is sufficiently arguable to justify the granting of an extension of time.
The Court would add to the above that the longer the delay, the more persuasive the explanation for the delay must be.
The Court, however, should not exercise its discretion to extend time, even for a short period, if the application has no prospects of success. The substantive application should have such prospects of success so as not to render the extension of time an exercise in futility.
The Court is not required to establish that the application will succeed at final hearing. The grounds of review should be examined on a reasonably impressionistic level to see whether or not there are reasonable prospects of success: (see; Singh v Minister for Immigration and Border Protection [2017] FCAFC 195 at [21]).
In relation to the grounds for the application for extension of time, the following was submitted on behalf of the applicant in his application to the Court:
·The applicant was seeking legal representation;
·The applicant was complying evidence; and
·The applicant was ill.
The first respondent submits that the applicant’s explanations for the delay “lacks merit” as:
(a) no supporting evidence has been provided as to the circumstances of obtaining legal
representation. In any event, this is not exculpatory of a delay;
(b) no reason has been given as to why additional time was needed to gather the documents annexed to the supporting affidavit; and
(c) no medical evidence has been provided to substantiate the Applicant's claimed illness.
The applicant stated that he was still legally represented when the application for judicial review was lodged. His lawyer handled everything. The fact that the application was out of time was never mentioned by his lawyer.
The Court notes that after the Tribunal made the decision under review, the applicant proceeded to lodge two further applications to the Tribunal for review of the delegate’s decision. On 7 September 2017 and 12 April 2018, differently constituted Tribunals (in Melbourne and Brisbane) determined that it did not have any jurisdiction to review the delegate’s decision again. The first respondent submits that these applications prove that the applicant did not lodge an application for judicial review within time, instead he continued to seek merits review. Further, the Tribunal’s letter to the applicant dated 26 July 2017 regarding his review rights to the then Federal Circuit Court had included relevant information.
The first respondent submits that even if the Court did accept the applicant’s reasons for delay, the substantive application lacks sufficient merit when the grounds for review are considered at a “reasonably impressionistic level”.
The delay in lodging the application for judicial review is very lengthy. The Court is satisfied that the applicant was clearly advised of the time period for the lodgement of an application for judicial review at the time he received the Tribunal’s decision. The Court does not find the applicant’s explanations persuasive. This mitigates against leave being granted.
The Court is satisfied that, except as to costs, no real prejudice arises to the respondent if leave were granted. This slightly favours leave being granted. This then leaves a consideration, at an impressionistic level, of the proposed grounds of judicial review.
THE ADMINISTRATIVE APPEALS TRIBUNAL’S DECISION
The Tribunal sets out from [4] to [8] of their decision, the relevant criteria for a protection visa as set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
The Tribunal directed itself to the mandatory considerations under Ministerial Direction No. 56 (“Direction 56”) and considered PAM3 policy guidelines prepared by the Department of Immigration and relevant country information assessments prepared by the Department of Foreign Affairs and Trade.
The applicant’s initial claims for protection are enclosed in his visa application of 16 December 2015 and are as follows:
Why did you leave that country?
When I first arrived in Australia, it was for a holiday. After a few days later, I received a call from my wife, (name redacted) that our home in Malaysia had been attacked by gangsters. When I was in Malaysia, I was a businessman running my own business. Before I started the business I applied for a bank loan but it was declined because I was too fresh to apply for a loan. I had no other way to start the business without a loan. The only option I had was to take a loan from "AL". It's a gangster that makes money by lending to people and claiming it with high interest. I thought that my business will become successful so I decided to take the loan. But unfortunately my business did not succeed because the Malaysian economy was low at the time. Because of that I lost a lot of money. I lent about RM 25,000 to build up my business. When my business lost, I could not pay the debt to them. They blackmailed me and tried to frighten me. They had said to my wife that if they find me they will kill me. Get money. When I came to Australia, I tried to hide from them for a few months but after I came, they have come and threatened my wife and said that if I don't pay their money that they will kidnap my wife and daughter. Because of that I asked my wife to move and stay with my mother in law. My wife is also afraid to go and report to the police.
What do you think will happen to you if you return to that country?
I am going to be chased by them and I will be killed if they find me.
Did you experience harm in that country?
Yes. Because of late payment, I have been harassed and beaten in the past.
Did you seek help within the country counter the harm?
No. We cannot get the police to help because the police is corrupt and they will not take action against the loan sharks because they have money. The police will only take a report and do nothing.
Did you move, or try to move to another part of the country?
Yes. I stayed at Kajang after I got married. When I was hit by them I moved to a friend’s house. But they still can find me.
Do you think you will be harmed or mistreated If you return to your country?
Yes. Because I am not in a position to repay them back the money and the high interest for all this time. I will be hunted as long as I am in Malaysia.
Do you think the authorities of that country can and will protect you if you go back?
No. Because a lot of people have been victims of their harassment and even been disappeared without a trace. The authorities cannot protect us from them.
Do you think you would be able to relocate within the country?
No. They are well organised and they have their gangster community all over Malaysia. They will catch me and I cant hide from them. I cant live a normal life if I don't pay them the money which I don't have.
(errors in original)
The issue on review by the Tribunal was whether the applicant had a well-founded fear of being persecuted under one or more of the five reasons set out in s 5J(1) of the Act and if not, whether if the applicant was removed from Australia to the receiving country, Malaysia, if there was a real risk that he would suffer significant harm.
The Tribunal accepted at [13] that the applicant’s claims were assessed against Malaysia as the country of nationality and receiving country given that the applicant travelled on a valid Malaysian passport and stated that he is a Malaysian national.
The applicant made further claims to the Tribunal regarding his protection claims at the hearing. They are as follows:
·He left Malaysia in September 2015 for a holiday. Two weeks after he left Malaysia, he received a phone call from ‘someone’ saying he owed some loan sharks money. He has paid off the loan sharks by working in Australia.
·The applicant claimed he borrowed RM25,000 from a loan shark to establish a food stall business, and the interest had been set to 13 per cent. He only managed to make the necessary monthly repayments for a few months. Loan sharks had sent non-threatening messages to him about the repayments in the beginning, but he ignored them. In September 2015, when he was in Australia, his wife received a phone call from the loan sharks demanding the money. These loan sharks allegedly ransacked his home and threw paint on the walls.
·The applicant had been previously associated with gangs in Malaysia and knew the loan sharks through this association. He was beaten up by some gang members on one occasion after he did not respond to the loan sharks, but he was unsure if this was related to the late payments of his loan. The applicant made a police report “not to have the loan sharks arrested”, but afterwards they still “ransacked and vandalized his house.”
From [17] the Tribunal set out their concerns with the applicant’s claims. The applicant’s written claims in his visa application and the evidence given at hearing were found to be inconsistent.
The applicant claimed that he lodged a police report after being beaten up by the gang members however he had previously stated on his visa application that the police were corrupt, and he did not seek any help in Malaysia. The applicant explained that the report to police was only a “cover report” for his own protection and this explains why it was left out of the visa application.
Further, the applicant claimed that his wife and daughter were threatened by the loan sharks in his application form however at the hearing he denied this. When the Tribunal pressed the matter, the applicant explained that he had two phones in Malaysia, for business and personal matters. When he came to Australia the business phone stayed with his wife who received the threatening messages from the loan shark.
The Tribunal found that the applicant’s evidence about the circumstances of the loan was “vague and lacking in detail”. He could not provide documentary evidence showing how much was repaid and how much was left outstanding.
The Tribunal was not persuaded by the explanations for any of the above claims and at [18] found “serious credibility concerns” and did not accept his claims in regard to the loan or the threats towards him or his wife.
At [20], the Tribunal acknowledged that the applicant’s wife has been in Australia since April 2016 and has suffered bouts of illness requiring the applicant to take care of her at home. The Tribunal noted, however, that his wife’s health problems in Australia “are not relevant to his protection claims” in respect of Malaysia.
The Tribunal found at [21] that the applicant would not face a well-founded fear of persecution as per s 5J(1) of the Act and is not a refugee within the meaning of s 5H(1) of the Act. Further, the Tribunal did not accept that he would be at risk of suffering significant harm as a necessary and foreseeable consequence of being returned to Malaysia. The applicant did not meet the alternative provision in s 36(2)(aa) of the Act.
The decision under review was therefore affirmed by the Tribunal.
GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of review are contained in an Originating Application filed on 7 June 2018:
•The decision made by the Minister or another person under the Migration Act and the Administrative Appeals Tribunal fail to consider for complementary protection when I am sent back to Malaysia for leaving Malaysia illegally would amount to "significant harm" or "'serious harm" of the Migration Act and thereby committed jurisdictional error and failed to consider complimentary protection.
•Decision made by the Minister or another person under the Migration Act and the Administrative Appeals Tribunal fails to consider my claim fairly,
•Decision made by the Minister or another person under the Migration Act and the Administrative Appeals Tribunal did not consider my case properly according to the Migration Law in Australia,
•The applicant submits that there is a "question of law" and that there appears to be jurisdictional errors being and not limited to making a decision that is unreasonable in the legal sense, incorrectly interpreting or applying the law as per below paragraphs 2-6 that are reinforced by the affidavit,
•The applicant submits that he is outside the country of his nationality and, owning to a well-founded fear of persecution, and is unable or unwilling to avail himself to the protection of that country as per section 5H (1)(B),
•The applicant submits that he has a well-founded fear of persecution as he fears of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and that there is a real chance that he would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country,
•The applicant submits that as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm as per section 36(3) (aa) of the Migration Act (1958) (the act).
•The applicant submits “I will suffer significant harm if I go back to my country”.
THE APPLICANT’S SUBMISSIONS
The Court notes that when the applicant filed his Initiating Application he was originally represented, however his legal representation filed a Noticed of Withdrawal on 9 October 2018.
As a result, the applicant appeared before the Court unrepresented. He was assisted by an interpreter. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the respondent’s written submissions had been translated to him. The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he wish to do so.
At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case. The applicant told the Court that he had nothing to say in relation to the grounds of judicial review. Following the respondent’s oral submissions, the applicant was again asked if he wished to say anything in reply. He answered “No”.
THE FIRST RESPONDENT’S SUBMISSIONS
The respondent summarises the applicant’s grounds of review as: ground one, two, three, four. Grounds five to eight are connected.
The delegate’s decision is a “primary decision” pursuant to s 476(4) of the Act. In accordance with s 476(2)(a) of the Act, the Court has no jurisdiction to review the delegate’s decision.
The first respondent submits that ground one, which is a contention that the applicant would suffer harm if he returned to Malaysia as he had departed illegally, cannot be made out. There is no evidence that suggests that this claim was ever made by the applicant. Further, the applicant gave evidence in his visa application and to the Tribunal that he left Malaysia “because he wanted to go on holiday”. The respondent relied on SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214; [2016] FCA 45 (“SZTUM”)at [37] to highlight that the Tribunal did not have to consider a claim “that was neither expressly made, nor squarely arose, on the materials before it”.
In relation to grounds two and three, the first respondent submitted that these claims “amount to no more than bare assertions of jurisdictional error” and they are not supported by any particulars. The applicant was provided an opportunity to provide further evidence and invited to appear at a hearing conducted on 18 July 2017. The applicant was afforded these opportunities and as such the first respondent contends that there was no procedural fairness issue that arose.
Ground four is an allegation of legal unreasonableness due to the Tribunal “incorrectly interpreting or applying the law as per below paragraphs 2-6 that are reinforced by the affidavit”. It is unclear which “paragraphs 2-6” the applicant refers to. In Minister for Immigrationv SZMDS [2010] HCA 16 at [130]-[131] it was determined that there is a high threshold needed to establish a finding of legal unreasonableness. In this respect, the first respondent submitted that none of the Tribunal’s findings in respect of the applicant’s claims would lead to a finding of legal unreasonableness.
The first respondent submits that grounds five to eight cannot stand as valid grounds of judicial review. They fail to identify any error on the part of the Tribunal and consist of mere assertions.
CONSIDERATION OF THE GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of judicial review read as bare assertions of jurisdictional error and allegations towards the Tribunal’s failings to consider the issue of complementary protection in the event the applicant is sent back to Malaysia. There is a lack of supporting evidence in relation to these claims.
The applicant contends within ground one that he would suffer significant or serious harm if he is “sent back to Malaysia for leaving Malaysia illegally.” The material before the Court regarding the visa application does not indicate that the applicant held legitimate fears of returning to Malaysia on the basis that he allegedly departed illegally. In his visa application, he stated he arrived in Australia as he wanted to go on a holiday. There is no evidence the applicant departed Malaysia illegally. The Tribunal were not required to consider a claim that was neither expressly made nor squarely arose before it (SZTUM). Ground one has no merit.
In relation to grounds two and three, the Court agrees they are mere assertions without particulars. For this reason alone, they are liable for dismissal: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]). These grounds in their current form are incapable of a meaningful response by the first respondent. They have no merit.
Ground four is an assertion of legal unreasonableness. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it; (see: Minister for Immigration v Li (2013) 297 ALR 225 (“Li”) at [28]), or where a decision has been made that lacks an “evident and intelligible justification”; (see: Li at [76]). The test for unreasonableness is “stringent” and will only arise in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters, or the evaluative judgements made by the decision-maker; (see: Li at [30], [113]).
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [11], Allsop CJ said the following concerning a review of a decision for legal unreasonableness:
The task is not definitional but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, insufficiently lacking rational a foundation, or an evident or intelligible justification, or in being plainly unjust arbitrary capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as to the exercise of that power. The descriptions of a lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
Again, this ground merely asserts legal unreasonableness and provides no particulars of the basis for the assertion. A fair reading of the Tribunal decision indicates the Tribunal came to the conclusions it did, based on the evidence before it, and for the evident reasons it gave. No legal unreasonableness is evident in the decision of the Tribunal. Ground four has no merit.
Grounds five to eight consist of unsupported assertions of harm or persecution if returned to Malaysia. They do not raise any assertions of jurisdictional error on the part of the Tribunal. These grounds have no merit.
Even at an impressionistic level, none of the grounds of judicial review have any merit. Accordingly, leave for an extension of time for the filing of the application for judicial review is refused.
The application is dismissed.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 5 June 2024
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