DFN16 v Minister for Immigration
[2017] FCCA 956
•11 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DFN16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 956 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm from loan sharks in Malaysia – applicant disbelieved in part and no Convention nexus found – no real risk of significant harm found – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.5J |
| Cases cited: BMS15 v Minister for Immigration [2016] FCCA 2173 |
| Applicant: | DFN16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2961 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 11 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 11 May 2017 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr T Galvin of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2961 of 2016
| DFN16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 October 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. The background facts relating to the applicant’s claims and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 2 May 2017.
Background
The applicant is a citizen of Malaysia, who arrived in Australia on 8 August 2015 on a tourist visa.[1] He applied for a protection visa on 3 November 2015,[2] claiming that he had taken out a series of loans from loan sharks in Malaysia to meet expenses associated with his business (including because of flood damage to his business), his home, his cars and his two families. He claimed that he was unable to repay the loans and was threatened, and he subsequently fled Malaysia fearing harm from the loan sharks.
[1] Court Book (CB) 2–3
[2] CB 1–37
On 27 January 2016 the delegate refused to grant the applicant a protection visa.[3]
[3] CB 86–100
On 18 February 2016, the applicant applied to the Tribunal for review of the delegate's decision,[4] and he appeared before it on 26 September 2016 to give evidence and present arguments.[5]
[4] CB 101–107
[5] CB 130–131
Tribunal decision
The Tribunal affirmed the delegate's decision on 10 October 2016.[6]
[6] CB 172–182
The Tribunal summarised the background to the applicant's protection visa application,[7] summarised his protection claims[8] and his evidence,[9] and discussed issues about the applicant's identity and receiving country.[10] Despite having some doubts about the applicant's claim to be a Malaysian national who was born in that country, the Tribunal was unable to make any firm conclusions and therefore proceeded on the basis that he was a Malaysian national as claimed.[11]
[7] at [7]–[17]
[8] at [18]
[9] at [19]–[20]
[10] at [21]–[23]
[11] at [23]
The Tribunal then focussed on two issues: first, the applicant's claimed indebtedness in Malaysia and, secondly, the identity of any money lenders associated with those debts.[12]
[12] at [24]
The Tribunal set out its discussion of the applicant's claimed loans and dealings with loan sharks[13] and its consideration of country information,[14] before turning to set out its assessment of the applicant's claims. The Tribunal stated that the applicant 'presented his claims in a piecemeal and sometimes hesitant manner'[15] and expressed 'significant doubts as to whether the applicant is a person who entered risky deals with loan sharks, and is consequently at risk of being pursued and punished by them'.[16] The Tribunal then set out the following concerns with the applicant's claims:[17]
i)his claims and evidence contained numerous gaps and anomalies;
ii)his evidence about the sum that he borrowed, the interest payable, and his plans in Malaysia to repay it was uncertain;
iii)his evidence about the loan shark's efforts to recover any of the funds was scant and unpersuasive;
iv)he did not depart Malaysia until approximately eight months after the floods in late December (which he claimed bankrupted his business), during which he made no repayments on the loans and the loan sharks did not seriously threaten or punish him;
v)the claim that he will be pursued if it is known that he has returned to his home town, together with the claim that his wife has returned to her home village (which is nearby) for her safety, suggests that the applicant's fears relate to just one location and not throughout Malaysia;
vi)while the Tribunal was puzzled by the applicant's one-day trip to Thailand in July 2015, no conclusions or adverse inferences were drawn from it, except that his lack of candour and willingness to return to Malaysia raise further questions as to whether he needed protection; and
vii)the apparent incongruity between the applicant's claimed fears and his failure to try to discharge some of the debts.
[13] at [26]–[36]
[14] at [37]–[38]
[15] at [39]
[16] at [41]
[17] at [41]
Ultimately, the Tribunal accepted that the applicant may have had financial problems in Malaysia, including in connection with his business, floods in late 2014, and the support needs of his families.[18] The Tribunal also accepted that the applicant may have outstanding debts in Malaysia.[19] The Tribunal accepted that these issues, and the economic conditions in Malaysia, may have influenced his decision to come to Australia and seek protection.[20] However, the Tribunal did not accept that the applicant had borrowed money from loan sharks, failed to meet repayments, was subject to threats, harassment or harm, or that he fled Malaysia to escape harm from loan sharks or other criminals.[21]
[18] at [42]
[19] at [48]
[20] at [43]
[21] at [42]–[44]
The Tribunal thereby rejected the factual basis for the applicant's claims to fear harm in Malaysia because of outstanding debts owed to loan sharks. In respect of the refugees criterion, the Tribunal further found that, even if his claims were accepted, there was no convention nexus as required by s.5J(1) of the Migration Act 1958 (Cth) (at [45]) and, in respect of the complementary protection criterion, the Tribunal found that there was no real risk that the applicant will be subjected to significant harm because of any outstanding debts he has in Malaysia.[22] The Tribunal thereby found that he did not satisfy the refugees criterion[23] or the complementary protection criterion.[24]
[22] at [48]
[23] at [45]–[46]
[24] at [48]–[49]
Present proceedings
These proceedings began with a show cause application filed on 27 October 2016. The applicant continues to rely upon that application. The grounds of the application are:
1. The decision is effected by an error of law.
2.The decision was made on my application without solid proofs.
3.It is requested to sent my application to Administrative appeal tribunal for reconsideration.
At the trial of this matter, as I was dealing with preliminary matters, the applicant interrupted me to say that there were no errors in the Tribunal decision. He explained that, notwithstanding the grounds in his application, he is not saying that the Tribunal made any legal errors. He explained that he is simply seeking my assistance in order to remain in Australia.
I explained to the applicant the limits in the Court’s jurisdiction and the options available to him in relation to seeking leave for any further appeal or seeking ministerial intervention. The applicant confirmed that he is seeking to extend his stay in Australia, that he is working in Australia and that he is attempting to reduce his indebtedness in Malaysia. He is seeking to remain here in order to further deal with his indebtedness. The applicant also mentioned that his children in Malaysia are still completing their education.
It follows that on the question of whether the applicant has an arguable case that the Tribunal decision is affected by any jurisdictional error, there is no contest. The inevitable consequence is that the application must be dismissed. Lest there be any doubt about that, the Minister’s submissions deal with the grounds of review as advanced. I agree with those submissions.
In respect of Ground 1, the applicant has not identified the error of law the Tribunal is alleged to have made. In its current form, this ground does not disclose an arguable case for the relief claimed.
In respect of Ground 2, the Tribunal is not required to accept uncritically any or all of the claims made, or evidence provided, by an applicant,[25] nor does it have to possess rebutting evidence before holding that a particular assertion is not made out.[26] In its current form, this ground does not disclose an arguable case for the relief claimed.
[25] Randhawa v Minister for Immigration (1994) 52 FCR 437; [1994] FCA 535
[26] Selvadurai v Minister for Immigration (1994) 34 ALR 347; [1994] FCA 301
The third ground does not contain any allegation of error by the Tribunal. It is therefore not a proper ground of review and does not disclose an arguable case for the relief claimed.
More generally, the Tribunal properly understood its statutory task, properly considered the applicant's protection claims, and made dispositive findings in respect of those claims that were reasonably open to it on the material before it and for the reasons it gave.
For completeness, there appears to be a typographical error at [4] of the Tribunal reasons, where the Tribunal states that the applicant attended a hearing before it on 26 September 2012. The applicant, in fact, attended a hearing before it on 26 September 2016. That typographical error of the year in which the hearing took place did not affect the exercise of the Tribunal's power.[27]
[27] cf. BMS15 v Minister for Immigration [2016] FCCA 2173 at [27]
Conclusion
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that the applicant be dismissed under Rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth)( Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant claims impecuniosity but, as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
I will order that he applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,606 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 17 May 2017
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