Dge17 v Minister for Immigration

[2018] FCCA 1682

FEDERAL CIRCUIT COURT OF AUSTRALIA

DGE17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1682

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

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5J, 36, 423A

Cases cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

VAS v Minister for Immigration [2002] FCAFC 350

Applicant: DGE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2289 of 2017

Judgment of: Judge Driver

Hearing date: 26 June 2018

Delivered at: Sydney

Delivered on: 26 June 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms M Perotti of Sparke Helmore

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, fixed in the sum of $3,606.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2289 of 2017

DGE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 28 June 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 19 June 2018. 

3. The applicant, a citizen of Malaysia, first arrived in Australia on 20 October 2016 on a UD-601 Electronic Travel Authority visa.[1] On 10 January 2017, the applicant lodged an application for a protection visa.[2] On 7 March 2017, the delegate refused to grant the applicant a protection visa.[3]

   [1] Court Book (CB) 40, 57

   [2] CB 1-37

   [3] CB 57-61

4. On 9 March 2017, the applicant applied to the Tribunal for review of the delegate’s decision.[4]  On 22 June 2017, the applicant appeared before the Tribunal with the assistance of a Malay interpreter to give evidence and present arguments.[5]  On 28 June 2017, the Tribunal affirmed the decision under review.[6]

   [4] CB 67-68

   [5] CB 86-88

   [6] CB 91-98

Applicant’s claims

1. In his visa application, the applicant advanced the following claims:[7]

   a)he left Malaysia because of the economic conditions.  He had been unemployed since December 2015, when his employer retrenched half of the workforce without compensation.  As he had lost his monthly income, he decided to leave Malaysia to “seek fortune and gain life experience”;

   b)if returned to Malaysia, he would face difficulties obtaining employment suitable to his qualifications, due to the “worrying” employment market and the economic downturn, which forced companies to retrench employees.  The inflation rate was increasing and he would struggle to survive; and

   c)he had sought new jobs, but his applications were not successful as many of the companies in Malaysia were downsizing.

   [7] CB 32-34

2. At the hearing before the Tribunal, the applicant advanced the following additional claims:[8]

   a)he came to Australia to earn a better income in order to fund renovations on his family home and tuition fees for his brother at a religious school; and

   b)if returned to Malaysia, he would be “chased and looked for” by the police.  The police had “chased” him and his friend two years prior because his friend had stolen a motorbike.  The police were in the area not long before he travelled to Australia and he was concerned that they were still looking for him.

   [8] CB 92-93, [7]

Tribunal’s decision

1. The Tribunal accepted that the applicant had needed money for renovations on his family home and for tuition fees for his sibling, and that he travelled to Australia to earn an income for these reasons, noting that his evidence was “direct, clear and made consistently throughout the Tribunal hearing”.[9]

   [9] CB 94, [13]

2. The Tribunal did not accept that the applicant was fired from his job in December 2012 or that he sought out new positions after this time, noting that his evidence at the Tribunal hearing was inconsistent with the claims made in his protection visa application.  The Tribunal recorded that, at the hearing, it put this inconsistency to the applicant.[10]

   [10] CB 14, [14]

3. The Tribunal did not accept the claim raised at the hearing that the police were pursuing the applicant in relation to an incident that had occurred two years previously. Referring to s.423A of the Migration Act 1958 (Cth) (Migration Act), the Tribunal was not satisfied that the applicant’s explanation for not raising this claim earlier (namely, that someone else had written his application for him) was reasonable. The Tribunal considered that if the applicant had a genuine fear of serious harm, it would have expected him to include the key aspects of his claims in his application, despite it being written by someone else. Further, the Tribunal noted that the applicant had signed the declaration of truth in the application. Moreover, the Tribunal considered the applicant’s evidence in relation to this claim to be “very vague and confused” and “not commensurate with telling the truth”.[11]

   [11] CB 94-95, [15]

4. The Tribunal found, therefore, that the applicant would not face a real chance of serious harm based on this claim.[12] Noting that the applicant had not claimed to fear harm for one of the reasons set out in s.5J(1)(a) of the Migration Act, the Tribunal was not satisfied that he faced a real chance of serious harm for a Convention reason if he were to return to Malaysia.[13] The Tribunal was not satisfied that the applicant met the criterion in s.36(2)(a) of the Migration Act.[14]

   [12] CB 95, [16]

   [13] CB 95, [19]-[20]

   [14] CB 97, [29]

5. Referring to country information on the economic situation in Malaysia, the Tribunal accepted that goods in Malaysia might be expensive and that the applicant would like to earn a higher income in Australia.[15]  Whilst it considered that there may be “some financial strain” the Tribunal was not satisfied that the applicant would face a real risk of significant harm should he return to Malaysia as a result.  In so finding, the Tribunal noted that the applicant had been employed in the past, that his family owned their own home and that his siblings were also working to generate an income.[16] On this basis, the Tribunal was not satisfied that the applicant met the criterion in s.36(2)(aa) of the Migration Act.[17]  Accordingly, the Tribunal affirmed the decision under review.[18]

   [15] CB 96, [23]-[24]

   [16] CB 97, [27]

   [17] CB 97, [30]

   [18] CB 97, [32]

The current proceedings

1. These proceedings began with a show cause application filed on 20 July 2017. The applicant continues to rely upon that application. The three particularised grounds in it are reproduced at [11] of the Minister’s submissions:

   1.The decision is effected by an error law.

   2.The decision was made without solid proofs.

   3.It is requested to sen[d] my application to [the] Administrative Appeals Tribunal for [re]consideration.

2. The application is supported by a short affidavit filed with it, which I received as a submission.

3. I have before me as evidence the court book, filed on 16 November 2017. 

4. I invited oral submissions from the applicant this afternoon. He needed some prompting, but eventually told me frankly that he is here because of financial problems. He is trying to support his family in Malaysia. His mother looks after his grandmother, and he also has siblings in Malaysia who need help. He came to Australia in order to make money to send to his family. He has been here for a little less than two years, and hopes to remain in Australia for a further two years, to meet what he has accepted as his family obligations. He is currently working in a chicken factory.

5. Unfortunately for the applicant, he was not able to persuade the Tribunal that he is eligible to receive a protection visa.  Given the circumstances of his coming to Australia, that is not surprising.  As I indicated to him during the course of oral argument, it might have been better if he had considered coming to Australia on some other form of visa.

6. In any event, the applicant is unable to point to any arguable case of jurisdictional error by the Tribunal.  The applicant has not advanced anything orally that could support such an argument.  The Minister’s submissions deal adequately with the written grounds.

7. Ground 1 is a bare, unparticularised assertion of jurisdictional error which cannot be made out. Further, and in any event, the Tribunal correctly applied the legal test under s.36(2)(a) and (aa) of the Migration Act. The Tribunal rejected the applicant’s claims concerning his pursuit by the police and was not satisfied that he faced a real chance of serious harm based in respect of the criminal incident.[19] The Tribunal also noted the applicant’s economic claims but was not satisfied that there was a real chance of serious harm for reason of race, nationality, membership of a particular social group or political opinion.[20] The Tribunal then addressed and disposed of the applicant’s claims by reference to the legal test for complementary protection.[21]

   [19] CB 96, [16]

   [20] CB 95, [19]

   [21] CB 96-97, [21], [26]

8. Insofar as Ground 2 amounts to a contention that the Tribunal’s decision was made in the absence of evidence, it is without merit.  To succeed on a “no evidence” argument, the applicant is required to demonstrate that there was no evidence at all before the Tribunal upon which its finding was based.[22]  Even in circumstances where the evidence in support of a finding is “slight,” that will be sufficient to defeat a “no evidence” argument.[23]  In the present matter, the Tribunal considered the applicant’s oral evidence at the hearing[24] and accepted some of the applicant’s claims,[25] but ultimately was not satisfied that he would face serious or significant harm on these bases.[26]  The Tribunal also rejected a number of the applicant’s claims on the basis of its assessment of his evidence, including the vague and confused nature of that evidence and inconsistencies therein.[27]  The Tribunal’s findings on the applicant’s claims in relation to the Malaysian economy were further supported by country information from DFAT and BBC World News.[28]  In those circumstances, it cannot be said that there was no evidence upon which the Tribunal’s decision was based.

   [22] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355 per Mason CJ

   [23] VAS v Minister for Immigration [2002] FCAFC 350 at [18]-[19]

   [24] CB 92-93, [6]-[7]

   [25] CB 94, [13]

   [26] CB 95-96, [19]-[20]

   [27] CB 94-94, [14]-[15]

   [28] CB 96, [23]-[25]

9. Ground 3 simply seeks that the matter be remitted to the Tribunal for reconsideration, and is not a proper ground of review.

Conclusion

1. 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), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $3,606.  That was the scale amount at the time the application was filed.  The applicant indicated he may require time to pay, but he did not oppose a costs order in principle.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,606.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       2 July 2018