DJD18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1157
•7 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DJD18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1157
File number(s): MLG 1884 of 2018 Judgment of: JUDGE CUTHBERTSON Date of judgment: 7 November 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – protection claim relating to loan sharks – adverse credibility findings – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 36, 65, 425, 425A, 476 Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 52; [2006] HCA 63
SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of last submission/s: 21 October 2024 Date of hearing: 21 October 2024 Place: Melbourne First Applicant: In person and on behalf of the Second Applicant Counsel for the First Respondent: Mr C. Orchard Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1884 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DJD18
First Applicant
DJE18
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
7 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of the second respondent be amended to “Administrative Review Tribunal”.
3.The application filed on 28 June 2018 is dismissed.
4.The applicants pay the first respondent’s costs of and incidental to the proceedings in the fixed sum of $5,000.00.
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 CUTHBERTSON
INTRODUCTION
On 28 June 2018, the applicants filed an application pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) for judicial review of the decision of the Administrative Appeals Tribunal (the Tribunal) made on 14 June 2018 (application). By that decision, the Tribunal affirmed a decision of the delegate of the first respondent (the Minister) to refuse to grant the applicants protection visas (visa) under s 65 of the Act. The applicants’ protection claims relate to debts owed to unlicensed money lenders.
The Minister opposes the application. For the reasons that follow, I have found the applicants have not established that the Tribunal’s decision is affected by jurisdictional error. The application for judicial review is, therefore, dismissed.
BACKGROUND
The applicants are husband and wife (CB 71). Both are citizens of Malaysia (CB 64, 68). The first applicant (applicant) arrived in Australia on 29 December 2015 as a holder of a visitor’s visa (CB 23, 84). He returned to Malaysia on 9 February 2016 and came back to Australia on 18 February 2016 (CB 84). The second applicant arrived in Australia on 27 March 2016 as the holder of a visitor’s visa (CB 47, 49).
Visa applications
On 12 May 2016, the applicants lodged applications for the visa with the then-named Department of Immigration and Border Protection (CB 1-75).
In his application, the applicant explained his reasons for claiming protection so that he did not have to return to Malaysia as follows (CB 32-35):
Why did you leave that country(s)? Provide specific details
I leave Malaysia because I’m running away from loan shark that want to harm me.
In March 2015, my house lord warned me he will kick me out from his house if I still did not pay the rent and bills for almost three months. Before, I was working as a contract worker but I still did not get my salary, and now I’m unemployed.
Worried to be kicked out, I tried to loan from several banks, but none approve my loans because I dont have fix job. With my six siblings still studied, I did not asked help from my parents because onl[y] my dad support my siblings.
Depressed and desperate to pay my rent and bills, I take a risk to get a loan from loan shark even I know it’s illegal and not safe, but I have no choice. With a photocopy of my identification card and a guarantor (my friend who introduced me to loan shark), and a picture of me, they let me loan for RM 3,000 with interest 25% a month and I promised them I will pay their money next month.
A month later, I still did not pay the money and that led debt collector to find me. As still I did not get my wages, I convinced them and promised once again that I will pay their money another next month, the debt collector agreed and giving me one more chance but with one condition, if I still could not pay the money, they will cut my fingers.
I tried to ring my ex-boss and went to his house. Unfortunately there is no answer and no one in his house. Feared of the debt collector would do any harm for me, I moved to [Place A], another state in Malaysia, and I find a job there.
A month later, the debt collector ring me and warned me. If they found me they will do as our agreement and they would do more worst because they felt cheated, even I promised I will pay RM500 each month, but they refused. After a few days, my friend (the guarantor) asked me to leave Malaysia because the debt collector were really mad and they find out my new workplace and my rent room.
Feeling my self is in very danger condition, I decided to leave Malaysia and come here.
What do you think will happen to you if you return to that country?
If I return to my country, I am really sure that the debt collector will find me again and they will cut my fingers and would do more worst to me. Even now my friends (the guarantor) told me that the debt collector is still looking for me and he always been asked if he knew any information of me. The debt collectors are really mad on me because I cheated them and did not pay any single cents to them. That makes them will never let me go. My debt also increasing time by time.
Did you experience harm in that country?
No.
Did you move, or try to move, to another part of that country to seek safety? Give details (including where you tried to move, why you were unable to move or where you move to and what happened).
Yes. I had tried to move to another state in Malaysia which is known as [Place A], but still they managed to find me because there are so many members of them all over Malaysia.
Do you think you will be harmed or mistreated if you return to that country? Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you)
Yes. As in agreement with them (loan shark). They will cut my fingers if do not pay their money. They would do more worst because I still have not pay any single cent and now my debt increasing every single month and now it's been already more than a year. Maybe they would kill me too.
Do you think the authorities of that country can and will protect you if you go back? Give details about why you think the authorities could not, or would not, protect you
No. The authorities of Malaysia could not fully protect me because loan shark is illegal, but yet I owe from them. So I have to cleared it all by my self with loan shark. The authorities only make action if debt collector did harm me. So, it just like useless if they protect me.
Do you think you would be able to relocate within that country? Give details about why you are unable to relocate.
No. I don’t think I would be able to relocate in Malaysia because there are too many members of them operated secretly from government. And that will make easy to find me and do any harm.
The second applicant did not provide any responses to questions in her visa application form concerning her reasons for claiming protection (CB 58-60).
Delegate’s Decision
On 22 September 2016, a delegate of the Minister (the delegate) refused to grant the applicants visas (CB 80-101). The delegate found that the applicants were not persons in respect of whom Australia has protection obligations or members of the same family unit as a person to whom such obligations are owed as set out in s 36(2) of the Act.
In reaching their conclusion that the applicant did not meet the refugee criterion pursuant to s 36(2)(a) of the Act, the delegate stated (CB 99):
Analysis
26. The applicant claims he is at risk of harm by loan sharks as a result of an unpaid debt. Country information confirms that although the practice of illegal money lending is widespread in Malaysia, police operations targeting loan sharks are not uncommon. Police in Perak made 88 arrests during an eight month period and continue to combat Ah Long syndicates by removing marketing materials, such as advertisements, from the public space.
27. I note the applicant has provided minimal detail and no evidence to support his claims that he borrowed money from loan sharks. Further, the applicant has returned to Malaysia since first arrival in Australia in 2015, which raises significant doubt about the applicant's subjective fear of returning to Malaysia.
28. Notwithstanding this, I am satisfied on the information before me that if the applicant were removed from Australia to Malaysia that he could reasonably expect to obtain protection from the Malaysian authorities such that there would not be a real risk of significant harm. I am satisfied the Malaysian authorities take reasonable measures to protect the lives and safety their citizens by maintaining a reasonably effective and impartial police and judicial system, and investigating and penalising corrupt officials. In reaching this finding, I have taken into account the applicant's personal circumstances and s36(2B)(b) of the Migration Act states that there is taken not to be a real risk of significant harm if the non-citizen could obtain protection from an authority of the country.
Findings
29. I find that the receiving State, or a party or organisation that controls the State or a relevant part of the State or a substantial part of the territory of the relevant State, could provide protection against persecution to the applicant. I also consider that the State, or the relevant party or organisation, is willing and able to offer such protection.
30. In addition, I find that the applicant can access the protection, the protection is durable and in the case of protection provided by the relevant State - the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
The Delegate found for the same reasons that the applicant did not meet the complementary protection criteria pursuant to s 36(2)(aa) of the Act (CB 100-101). The second applicant’s visa was refused on the basis she did not meet the criteria in ss 36(2)(b) or (c) of the Act (CB 101).
Application for review to the Tribunal
By an application dated 6 October 2016 and received by the Tribunal on 14 October 2016, the applicants applied for review of the delegate’s decision (CB 102-108). By letter dated 18 October 2016, the Tribunal acknowledged receipt of the applications (CB 109-111). The letter advised that if they wished to provide material or written arguments for the Tribunal to consider, they should do so as soon as possible (CB 110).
On 19 September 2017, the Tribunal wrote to the applicants inviting them to attend a hearing on 25 October 2017 to give evidence and present arguments relating to the issues arising in their case (CB 112-114).
On 25 October 2017, the applicants appeared before the Tribunal with the assistance of a Malay interpreter (CB 116-118). The hearing record notes the hearing commenced at 2:40PM and concluded at 3:55PM. It also records that “employment documents” were received during the hearing. Those documents evidence the applicant was offered a position as a welder shortly before the hearing (CB 121-150).
On 14 June 2018, the Tribunal affirmed the delegate’s decision not to grant the applicants protection visas (CB 152-153).
THE TRIBUNAL’S DECISION
The Tribunal’s statement of decision and reasons runs to 38 paragraphs (CB 154-159). In its decision, the Tribunal first set out the criteria for protection visas (CB 154, [5]-[9]). The Tribunal noted it had regard to departmental policy guidelines to the extent they were relevant as was required by Ministerial Direction No. 56 (CB 155, [10]). It observed that a decision maker is not required to make the applicants’ case for them, nor was it required to uncritically accept any and all allegations made by them. It noted that findings of fact required to be made may involve assessments of credibility. The Tribunal noted it was aware of the need for and importance of being sensitive to the difficulties asylum seekers often face, and that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all of their claims (CB 155, [11]-[13]).
The Tribunal noted both applicants attended the hearing and gave evidence with the assistance of a Malay interpreter (CB 154, [3]). It set out a summary of the applicant’s claim for protection as emerged from his visa application (CB 155-156, [15]). The Tribunal then set out the evidence received during the course of the hearing as follows (CB 156-157, [20]-[23]):
20. At the hearing the applicant said that he was working in Penang about 3 hours from [Place B] at the end of 2014. He had been doing some contracting work and he was working long hours. A month into the job he was not getting paid but he stayed as there were no other jobs. After finishing the job he returned to [Place B] and still had not been paid. His boss gave him some money out of his own pocket about 500 MR. The applicant contacted his boss again and he said he was still trying to get paid by his clients but he still didn't have any money.
21. The applicant had to pay his bills and rent. Then a friend named [M] introduced him to a loan shark. The applicant said they met with a middle man and he knew this person from when he was working with another company. He met him in a coffee shop and he borrowed 3000 MR. When asked if he gave them some ID he said he didn't have to as he knew this guy from a friend of a friend. The loan shark middle man said the interest rate would be 25% per month, but the applicant said he was a gambler so he hoped to make some money. But the applicant said he lost money. His family eventually settled the loan with the first loan shark as they knew the loan shark was looking for him. He then went on to borrow from other loans sharks. The applicant said his mother and brother went with him when they paid off the loan sharks.
22. The applicant wanted to make payments of 500 MR per month but the money lenders wanted 1000 MR per month and they were tired of my excuses. The loan sharks started going to his cousin. The applicant decided to come to Australia. He pawned his wife's jewellery and borrowed money from his family. When asked why he didn't use the money he paid for an airline ticket to pay the money lenders and he said that by this time his loan had ballooned to 7000 MR and his family thought he would gamble it away so they refused to give him any more money and paid for his ticket.
23. The applicant told the Tribunal that every day the money lenders called him and threatened him. However, they never actually hurt the applicant. The applicant also said they didn't hurt him because he is a friend of their sons (the money lenders son is his friend) and so they wouldn't hurt him. After he arrived in Australia he was worried his wife would be harmed so he brought her over to Australia.
The Tribunal expressed the following concerns with the evidence (CB 157-158, [25]-[29]):
25. At the hearing the applicant was vague about when he borrowed the money, the date they met, and the general nature of how he came to borrow the money. The applicant then said that he didn't have to give the money lenders any ID as he knew the money lenders through a friend.
26. The applicant then told the Tribunal he was a gambler but he did not tell his wife. He lost money gambling then had to go to another loan shark. He claims that his family paid the first loan shark off the money he owed. The applicant did not elaborate as to how he gambled, how much he lost gambling or how much he then received when he went to the second loan shark. The applicant did not put down in his claims to the Department that he gambled nor that he borrowed from a second loan shark. The Tribunal finds his evidence to be lacking in credibility.
27. Further, during the hearing the applicant never said that the money lenders threatened to cut off his fingers or that threatened to kill him. On the contrary he said that one of the money lenders was his friend's father and therefore they would not hurt him as they knew him. The applicant had contradicted his own written claims that he was threatened with violence and death.
28. The applicant said he was worried about his wife whom he left behind in Malaysia as the money lenders may harm her so he asked her to join him in Australia. However, later in hearing the applicant said he didn't have enough money to bring her to Australia. Further, the applicant had already stated that the money lenders would not harm him as they knew him. Therefore, it stands to reason that they would not harm his wife or his family. The Tribunal does not accept that the applicant or his wife were actually threatened by money lenders.
29. Given these concerns, the Tribunal does not accept that the applicant is a credible witness. For the reasons set out above the Tribunal does not accept that the applicant borrowed money from money lenders who were his friends dad or anyone else. It follows that the Tribunal does not accept that the applicant was threatened by money lenders at any time or that they were looking to threaten his family.
The second applicant also gave evidence. The Tribunal’s decision records this evidence as follows (CB 158, [31]-[33]):
31. The applicant claims she did not know that her husband had been borrowing money from the loan sharks. She said that he seldom shared his problems with her and that she heard it from friends. The wife then said the applicant told her he would solve the problem on his own and he didn't want any problems.
32. The wife's testimony was limited as she stated above that her husband did not share his problems with her. When asked why she did not come to Australia with her husband when he first arrived she said that her husband came to Australia to check things out before she came over.
33. The second named applicant's evidence was vague: for instance she claims that her husband does not tell her his problems therefore she does not know any details about the money lenders, threats or anything associated with the money lenders. On this basis the Tribunal does not accept that the applicant knows anything about money lenders or her husband's alleged involvement with them and therefore the Tribunal does not accept she had any dealings with money lenders or anyone associated with them and the Tribunal does not accept that that she would upon return to Malaysia.
The Tribunal did not accept the applicants faced a real chance of persecution, now or in the reasonably foreseeable future (CB 158, [34]). In addition, it did not accept there were grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there was a real risk the applicants would suffer significant harm from Malaysian authorities or from anyone else in relation to their alleged involvement with money lenders (CB 158, [35]). Consequently, the Tribunal was not satisfied either of the applicants was a person in respect of whom Australia has protection obligations (CB 158, [36]-[37]).
APPLICATION FOR JUDICIAL REVIEW
The application sets out one ground of review as follows:
The Tribunal did not make its decision 14th June 2018 according to law, in that:
1. The Tribunal committed jurisdiction error by taking into account irrelevant considerations.
Particular
a. In paragraphs 45, the Tribunal referred to the applicants willingness to approach the authorities for identity documents being a strong support for the contention that the applicant did not fear harmed in Malaysia.
b. Wether (sic) the applicant was willing to or was able obtain identify documents is an relevat (sic) consideration of whether or not the applicant fears being harmed in Malaysia.
There is no paragraph 45 in the Tribunal’s statement of reasons and decision: see [14] above. No part of the Tribunal’s decision references any evidence concerning obtaining identity documents from Malaysian authorities, or that such evidence provided support for a contention the applicant did not have a fear of being harmed in Malaysia. The ground of review on its face is of no relevance to the decision the subject of the application.
The applicant also filed an affidavit in support of the application on 28 June 2018. It relevantly states: “I consider that there are ground for an application for review in this Court”. No further detail is provided.
On 16 October 2019 and 26 October 2023, procedural orders were made to ready the matter for a final hearing. The combined effect of those orders included that the applicants file and serve 28 days before the hearing date any amended application with proper particulars of the grounds of the application, any affidavits, a supplementary court book, if any, and written submissions. No further materials were filed by the applicants in accordance with those orders.
On 4 October 2024, the Minister filed an outline of submissions.
HEARING OF APPLICATION
The hearing of the application was conducted in this Court on 21 October 2024. The applicant appeared unrepresented on behalf of himself and the second applicant with the assistance of an interpreter in the Malay language.
The applicant was taken to the materials before the Court, namely the application, the affidavit filed by the applicant in support, the Court Book filed by the Minister on 22 October 2019 (received into evidence and marked 1R) and the Minister’s submissions. The applicant had brought his copy of the Court Book with him to Court. He agreed he had received a copy of the Minister’s submissions but advised he had not read them properly. I stood the matter down to allow the applicant an opportunity to go through the submissions with the assistance of the interpreter.
I spent some time explaining the nature of the Court’s jurisdiction and my role in these proceedings. I also explored with the applicant why the ground set out in the application did not appear to be relevant to the Tribunal’s decision. The applicant explained he had filled out the application form himself, the handwriting was his, he was in a rush but was otherwise confused as to why the ground referred to a non-existent paragraph and a matter that was not an issue in the hearing before the Tribunal. I asked if someone had given him advice on what to say in the application. He denied that was the case.
CONSIDERATION
The Court’s task in this matter is to review the lawfulness or legality of the Tribunal’s decision. The Court does not consider the merits of the decision, and it is not able to remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17]. The merits of the applicant’s claims are for the repository of the relevant power alone (in this case the delegate and the Tribunal): Minister for Immigration and Ethnic Affairs v Wu Shan Liang(1996) 185 CLR 259; [1996] HCA 6 at [31].
Relief can only be granted to the applicants if they establish the Tribunal’s decision is affected by jurisdictional error. The High Court recently explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [2] as a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law… no decision at all’ and is in that sense ‘void’”. The High Court noted jurisdictional error can take many different forms and that the categories are not closed. Examples of breaches by a statutory decision-maker of a condition in making a decision were identified by the High Court at [3] as including:
(a)misunderstanding the applicable law;
(b)asking the wrong question;
(c)exceeding the bounds of reasonableness;
(d)identifying a wrong issue;
(e)ignoring relevant material;
(f)relying on irrelevant material;
(g)in some cases, making an erroneous finding or reaching a mistaken conclusion;
(h)failing to observe some applicable requirement of procedural fairness.
Applicants’ submissions
As the applicant had conceded the ground set out in the application was not relevant to the Tribunal’s decision, the applicant was asked to explain what he thought the Tribunal did wrong in reaching its decision. He explained the Tribunal was wrong to conclude it was safe for him to return to Malaysia. When I asked him how that conclusion was legally wrong, he stated it may have been his fault because he did not provide any evidence. When asked what evidence he could have provided, he conceded he would not have been able to produce any documentary evidence as the loans were undocumented and advice provided to him by others that the loan sharks were looking for him was not conveyed in writing. He thought he could call his cousin to give evidence if he had another opportunity to make his case to the Tribunal.
The applicant spent some time explaining aspects of his claim and the evidence he gave during the Tribunal hearing. He was taken to some key passages in the Tribunal’s decision and agreed, based on what he could recall, that the Tribunal correctly recorded the evidence he gave during the hearing. In respect of evidence that was not provided to the Tribunal, the applicant said he did not quite understand the process and did not have the services of a lawyer. He explained he disagreed with the Tribunal’s decision. He said the part of the decision where it claimed he said he was not threatened was not correct. He told the Court that both he and the second applicant were given the opportunity to present their case to the Tribunal during the hearing.
Minister’s submissions
The Minister’s written submissions note the absence of a paragraph 45 to the Tribunal’s decision. It is submitted the applicant’s sole ground set out in the application is wholly irrelevant to the Tribunal’s decision in this case. Consequently, it is submitted that ground establishes no jurisdictional error and plainly cannot succeed.
In respect of the applicant’s oral submissions to the Court, the Minister submitted they did not raise any new application for relief that this Court would recognise.
The Minister also submits the Tribunal complied with its procedural fairness obligations under Part 7, Division 4 of the Act. By invitation emailed to the applicant on 19 September 2017 and in accordance with ss 425 and 425A of the Act, the Tribunal invited the applicants to attend a hearing before it on 25 October 2017 (CB 113-114). The applicants attended the hearing with the assistance of an interpreter in the Malay and English languages (CB 116-118). The applicants were on notice from the delegate’s decision and the Tribunal’s questioning at the hearing that the credibility of their claims and evidence was the determinative issue on the review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 52; [2006] HCA 63. The Minister argued there was no breach of s 425 of the Act. Further, the Minister submitted there was no “information” that was required to be put to the applicants in accordance with s 424A of the Act, as the Tribunal’s decision was based on the applicants’ written and oral evidence which fell within the exceptions to s 424A at paragraphs 424A(3)(ba) and (b) respectively. Consequently, the Minister argued there had been no breach of s 424A of the Act.
Finally, the Minister submitted it was apparent from the Tribunal’s statement of reasons and decision that the member was not impressed with the applicant’s evidence. The Tribunal found he was not a credible witness and rejected the claim on a factual level. It was submitted the decision and reasons were otherwise free of error, let alone jurisdictional error.
Discussion
The applicant’s submissions were principally directed at the merits of the applicants’ claims for protection. The applicant disagreed with the Tribunal’s decision but was unable to identify what the Tribunal had done wrong in making its findings and reaching its conclusions.
The Tribunal concluded the applicant was not a credible witness. Consequently, the Tribunal did not accept the applicant had borrowed money from money lenders and had been threatened as a result of doing so. Therefore, the Tribunal concluded the factual basis for the applicants’ claims for protection was not established.
The merits of the applicants’ applications for visas were for the delegate and the Tribunal: see Liang at [31]. Making findings on credibility is the function of the primary decision maker or the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407 at [67], per McHugh J. Nevertheless, courts have recognised that adverse credibility finding might involve jurisdictional error: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [83]. In SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589, per Allsop CJ explained at [40]:
…It can be accepted that credit findings have a particular andimportant place in decision-making, whether of courts or tribunals: see theremarks of McHugh J in Re Minister; Ex parte Durairajasingham [2000]HCA 1; 168 ALR 407 at [67]. For this reason, no doubt, a court exercisingthe power of judicial review should be cautious in its approach to decidingwhether the decision-maker, in dealing with the factual material, includingthe oral evidence of the applicant, has failed to exercise its statutory task byan approach which can be criticised as seriously irrational, illogical orlacking material foundation in important aspects. There is no formulainvolved. Careful attention must be paid to the reasons and approval of thedecision-maker: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Allsop CJ, Robertson and Mortimer JJ) notfor the purpose of ascertaining the facts, but for the purpose of decidingwhether the approach of the tribunal was sufficiently lacking in foundation,rationality, or logical coherence in a way that could have affected theoutcome so as to be legally unreasonable. It can be accepted that reasonabledifferences of views as to material are insufficient to found legalunreasonableness. The flaw in the fact-finding or treatment of the evidencemust be sufficiently seriously illogical, irrational or groundless as tocompromise the decision, in that the credit finding can be seen ascompromised. See the Full Court decisions which deal with the review ofcredit findings: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109; ASB17 v Minister for Home Affairs [2019] FCAFC 38; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175. I referto what I said in CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 at [60]-[65].
In this case, the Tribunal gave the applicants an opportunity to present evidence and make arguments. There is no suggestion the applicants were denied procedural fairness. The Tribunal’s reasons set out in detail the evidence and materials before it. It explained its reasons for concluding the applicant was not a credible witness. In my view, the Tribunal’s credibility findings were in no way irrational, unreasonable, illogical or groundless. The Tribunal’s reasons demonstrate it engaged in an active consideration and assessment of the evidence before it. No jurisdictional error is evident in the Tribunal’s approach to the factual material before it.
I am mindful the applicants are not represented in these proceedings. Accordingly, I have given careful consideration to the Tribunal’s decision with a view to identifying whether the Tribunal fell into jurisdictional error. I can detect no error based on the material properly before me.
CONCLUSION
For the above reasons, I dismiss the application.
In the event the application was dismissed, the Minister sought costs in the fixed sum of $5,000.00 which is below the scale prescribed in Sch 2, Part 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). The applicant explained he would not be able to afford that amount as he was working as a labourer and the second applicant was not working.
I am satisfied that the costs should follow the event in this matter. I am also satisfied the amount sought by the Minister is reasonable, representing a significant discount on the scale of costs for migration proceedings concluded at final hearing. Accordingly, I order the applicants pay the Minister’s costs of and incidental to the proceedings in the fixed sum of $5,000.00.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 7 November 2024
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