Del19 v Minister for Immigration

[2020] FCCA 524

FEDERAL CIRCUIT COURT OF AUSTRALIA

DEL19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 524

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.5J, 36

Applicant: DEL19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULUTRAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2147 of 2019

Judgment of: Judge Driver

Hearing date: 10 March 2020

Delivered at: Sydney

Delivered on: 10 March 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr L Leerdam of Mills Oakley

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2147 of 2019

DEL19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 2 August 2019.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s submissions filed on 2 March 2020. 

2. The applicant is a male citizen of Malaysia born in 1991.[1] The applicant arrived in Australia on 31 March 2017.[2]

   [1] Court Book (CB) 40.

   [2] CB 59.

3. The applicant applied for a protection (Class XA) (Subclass 866) visa on 23 June 2017.[3]  The applicant’s claims were set out in Part C of his protection visa application[4] and may be summarised as follows:

   a)at the end of 2016, the applicant’s mother took out a loan from illegal money lenders. The money had to be repaid within a couple of years;

   b)the illegal money lenders would visit the applicant’s home to demand payment of the debt, using force and bad words. They would hit members of the family;

   c)if the applicant returned to Malaysia, the illegal money lenders would force him to pay the debt in full. If the applicant does not pay, the money lenders will come to harm him again, because he told them he would be the one who would pay the debt. The applicant told the money lenders that he would pay the debt if he came to Australia, so they gave him permission to travel;

   d)the money lenders told the applicant that if he tries to seek help from anyone, including the government or his relatives, they would harm one of his family members; and

   e)the applicant cannot relocate to another part of Malaysia because the money lenders will harm his family if he does not pay the debt. The money lenders also have members in other parts of the country, so they will know if the applicant moved somewhere else.

   [3] CB 1.

   [4] CB 34 – 36.

4. On 21 September 2017 the application was refused.[5]

   [5] CB 59.

5. On 29 September 2017 the applicant applied to the Tribunal for review of the delegate's decision.[6]

   [6] CB 67.

6. On 4 July 2019 the applicant gave oral evidence before the Tribunal.[7] At hearing, the applicant gave evidence that he had copied the answers to the questions on his protection visa application from a separate application that a friend had completed. The applicant told the Tribunal that he did not know what type of visa he was applying for, that he did not know what was contained in the application, and that he thought the application was for employment in Australia. The applicant told the Tribunal that one of his friends had introduced him to an unidentified person in Sydney who asked the applicant for a payment of $700 to assist the applicant to work in Australia.[8]

   [7] CB 87.

   [8] CB 96-97.

7. The applicant further advised the Tribunal at hearing that:[9]

   a)he left Malaysia for “a holiday”;

   b)he feels safe in Australia and loves the culture, and considers it a better place to live;

   c)he had no other reasons why he could not return to Malaysia, but he wanted to stay and work in Australia;

   d)his claims about the threats from the illegal money lenders in Malaysia contained in his Protection visa application were wrong and no threats had been made to him or his family.

   [9] CB 97-98.

8. The Tribunal handed down its decision on 2 August 2019.[10]

   [10] CB 93.

The decision of the Tribunal

1. The Tribunal found at [29] that the claims made in the visa application had been copied from another person's application and did not relate to the applicant.

2. The Tribunal considered at [31] the new claims advanced at the hearing and found that they did not establish any fear of harm and referred only to lifestyle and opportunities in Australia.  The Tribunal was not satisfied at [32] that the applicant had a well-founded fear of persecution or a real risk of significant harm in Malaysia.

The present proceedings

1. These proceedings began with a show cause application filed on 20 August 2019.  The applicant continues to rely upon that application.  There are three grounds in it:

   1. It is also of my opinion that Administrative Appeals Tribunal (AAT) have made a mistake in refusing my protection visa applications.

   2. It is also of my opinion, the Administrative Appeals Tribunal have error in refusing my appeal about the refuse of my protection visa application.

   3. Lastly, I appeal to Federal Circuit Court of Australia to consider my application for this casse to the Federal Circuit Court.

   (errors in original)

2. The application is supported by a short affidavit filed with it, which I received.  I also have before me as evidence the court book filed on 17 October 2019. 

3. Only the Minister filed pre-hearing written submissions in accordance with procedural orders made by a registrar.  I invited oral submissions from the applicant this afternoon.  He told me, as he had told the Tribunal, that he met a man who organised his claims for protection for him.  He conceded that the Tribunal had done nothing wrong.  Having told the applicant that I was minded to dismiss his application, I invited any submissions in reply.  He had nothing further to say. 

4. The Minister’s submissions deal with the grounds of review raised.  I agree with those submissions. 

5. The grounds of the application contain no meaningful content and are not capable of establishing jurisdictional error. 

6. The applicant clearly abandoned the claims which were made in his protection visa application when he appeared before the Tribunal at hearing.

7. The Tribunal considered the new claims advanced by the applicant at the hearing, being that he feels safe in Australia, the crime rate is low, and he loves the culture, diversity and places, which clearly were not capable of meeting s.36(2)(a) or (aa) of the Migration Act 1958 (Cth) (Migration Act). The applicant did not provide any information to the Tribunal about any feared persecution or serious harm upon returning to Malaysia.

8. In those circumstances, it was plainly open to the Tribunal find that the applicant did not have a well-founded fear of persecution in Malaysia involving serious harm as required under s.5J(4)(b) of the Migration Act, or that there was a real risk he would suffer significant harm pursuant to s.36(2)(aa).

9. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

10. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant did not wish to be heard on costs.

11. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.

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

Associate: 

Date:  12 March 2020