DJK17 v Minister for Immigration
[2018] FCCA 1713
•28 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DJK17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1713 |
| 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, 65, 411, 415 |
| Cases cited: AAJ17 v Minister for Immigration & Anor [2017] FCCA 2297 ACB17 v Minister for Immigration & Anor [2017] FCCA 1880 BHL16 v Minister for Immigration & Anor [2017] FCCA 1958 BUP16 & Ors v Minister for Immigration & Anor [2017] FCCA 1782 SZSGA v Minister for Immigration [2013] FCA 774 SZSHK v Minister for Immigration (2013) 138 ALD 26; [2013] FCAFC 125 |
| Applicant: | DJK17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2376 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 28 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Davyskib 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, fixed in the sum of $3,606.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2376 of 2017
| DJK17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 29 June 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 21 June 2018.
The applicant, a female citizen of Malaysia, arrived in Australia on 11 November 2014 as the holder of an Electronic Travel Authority (Class UD) (subclass 601) visa which expired on 11 February 2015.[1]
[1] Court Book (CB) 53
On 30 October 2015 the applicant applied for a protection visa.[2] The applicant's written claims were that:
a)she left Malaysia because she ran away from unlicensed money lenders and was unable to pay back the balance of the loan owing to the high interest;[3]
b)she “probably would be hurt or killed by unlicensed money lender because before this I had been beaten and abused by them”;[4]
c)she had been hit and hurt owing to her inability to pay back the loan, and that she did not move to another part of Malaysia because of the unlicensed money lenders’ “very wide network”;[5] and
d)it was very difficult to seek protection or assistance from Malaysian authorities as the authorities were sometimes paid by the unlicensed money lenders.[6]
[2] CB 1–38
[3] CB 30
[4] CB 30
[5] CB 31
[6] CB 32
On 24 May 2016 the delegate refused to grant the applicant a protection visa. The delegate found that on the basis of the applicant's written claims, the applicant's fear of harm was not for any of the reasons provided in s.5J(1)(a) of the Migration Act 1958 (Cth) (Migration Act).[7] The delegate accepted that, while the applicant may not have absolute protection in Malaysia, on the basis of a balanced assessment of the available country information, the Malaysian authorities are able and willing to provide an adequate level of protection from the type of criminal behaviour feared by the applicant and the applicant could obtain protection such that there would not be a real risk that the applicant would suffer significant harm.[8]
[7] CB 57
[8] CB 67
On 17 June 2016 the applicant lodged electronically an application for review of the delegate's decision with the Tribunal.[9]
[9] CB 70–71
On 21 June 2016 the Tribunal contacted the applicant by phone, and sought to clarify whether the applicant was seeking review of a protection visa refusal, and requested that the applicant provide the Tribunal with a copy of the delegate's decision record and notification letter from the Minister’s Department that enclosed the decision record.[10]
[10] CB 80
On 4 May 2017 the Tribunal sent the applicant an invitation to attend a hearing, scheduled for 15 June 2017,[11] and on 31 May 2017 the applicant emailed the Tribunal a signed response to hearing invitation.[12]
[11] CB 81–91
[12] CB 92–99
On 15 June 2017 the applicant appeared at a hearing before the Tribunal, with the assistance of a Malay interpreter, to give evidence and present arguments relating to the issues in her case.[13] At the hearing, the applicant provided to the Tribunal bank documents to evidence the range of debts she had.[14]
[13] CB 100–104
[14] CB 100–104
On 29 June 2017 the Tribunal notified the applicant of its decision, affirming the decision not to grant the applicant a protection visa.[15]
[15] CB 105–120
Tribunal decision
The Tribunal referred to the applicant's oral testimony to the Tribunal, in which the applicant had initially stated that she completed the protection visa application herself and that it was correct, but later indicated that she had received assistance and could not confirm the claims were correct.[16]
[16] At [20], CB 113
The Tribunal referred to the applicant's claims raised at hearing,[17] being that:
a)she faced economic hardship on return to Malaysia because she could not afford to repay financial debts to Hong Leong Bank, RHB Bank and AmAssurance, and also support her mother;[18]
b)she faced extortion from her former lover and that he had threatened to harm the applicant or her family;[19] and
c)she experienced difficult personal circumstances arising from her mother's divorce and remarriage, including an incident involving her step-father where he had tried to kiss her at their home.[20]
[17] At [21]
[18] At [21]
[19] At [22]
[20] At [23]
The Tribunal rejected the applicant's claim to fear harm from an illegal money lender or from her former lover because it considered these claims were not credible.[21] It rejected the remainder of the applicant's claims because they were not well-founded. The Tribunal made the following key findings:
a)it accepted that the applicant had debts to Hong Leong Bank, RHB Bank and AmAssurance, but it did not accept that the applicant had a well-founded fear of persecution arising out of her financial circumstances or that she faced a real risk of serious harm on this basis;[22]
b)it accepted that the applicant may have experienced some difficulties in repaying her loans, but found that she could sell her car to help repay the debts, that she would be able to find employment and that she would be able to manage her financial commitments such that she would be able to subsist;[23]
c)it did not accept the applicant would be denied the capacity to earn a livelihood where the denial threatened her capacity to subsist, or that she was suffering significant economic hardship that threatened her capacity to subsist;[24]
d)it considered her failure to seek assistance in relation to her former lover's threats undermined the credibility of her claim, and the Tribunal did not accept the applicant's former lover had extorted her or threatened her;[25]
e)it did not accept that the applicant would be harmed by an unlicensed money-lender as she indicated this claim was not correct;[26]
f)it accepted the applicant feared her step-father, but did not accept he would harm her;[27] and
g)it considered the applicant's delay in applying for protection undermined her claims.[28]
[21] At [33]–[35]
[22] At [25]–[26]
[23] At [27]–[28]
[24] At [29]
[25] At [34]
[26] At [35]
[27] At [36]
[28] At [37]
The current proceedings
These proceedings began with a show cause application filed on 27 July 2017. The applicant continues to rely upon that application.
There are two grounds in the application:
1.The Tribunal misconstrued the risk and fear of significant harm as set out in s36(2A) of the Migration Act 1958.
The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon her returns to Malaysia.
2.The Tribunal had no jurisdiction to make the said decision because its :reasonable satisfaction" was not arrived in accordance with the provisions of the Migration Act.
(errors in original)
The application is supported by a short affidavit filed with it, which I have received as a submission.
I have before me as evidence the court book filed on 25 October 2017.
I invited oral submissions from the applicant today. She declined to make any.
The applicant was plainly unwell at today’s hearing. I asked her if she was fit to continue and she said she was. Nevertheless, if there had been any legal merit in the application, I would have been minded to adjourn today’s hearing, notwithstanding that the applicant volunteered to proceed. There is, however, no legal merit in the application.
The Minister’s submissions deal adequately with the grounds in the application. I agree with those submissions.
Ground 1
The first ground alleges that the Tribunal failed to apply the correct test under s.36(2A) of the Migration Act and “construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicant upon her return to Malaysia”. This is a template ground which has been raised in numerous other matters.[29]
[29] See for example AAJ17 v Minister for Immigration & Anor [2017] FCCA 2297; BUP16 & Ors v Minister for Immigration & Anor [2017] FCCA 1782; ACB17 v Minister for Immigration & Anor [2017] FCCA 1880; BHL16 v Minister for Immigration & Anor [2017] FCCA 1958
The Tribunal set out and applied the correct test and made findings that were open to it on the evidence before it and in light of the applicant's own evidence, and independent country information before it.[30] Further, it was open to the Tribunal to adopt its factual findings in respect of the refugee criterion in support of its findings made pursuant to the complementary protection criterion.[31] This ground is without merit and must fail.
[30] At [8], [26]–[27], [33], [39], and [41]
[31] SZSGA v Minister for Immigration [2013] FCA 774 at [57]; SZSHK v Minister for Immigration (2013) 138 ALD 26; [2013] FCAFC 125 at [35]
Ground 2
The second ground contends that the Tribunal had no jurisdiction to make its decision because its “reasonable satisfaction” was not arrived at in accordance with the provisions of the Migration Act. This ground is without substance and does not raise an arguable jurisdictional error. Further, this ground is also a template ground.[32]
[32] See for example BLH16; ACB17
The Tribunal was statutorily required to refuse to grant the applicant's protection visa application because it was not satisfied that the applicant met the prescribed criteria for the grant of the visa.[33] The Tribunal's conclusions that the prescribed criteria, s.36(2)(a) and (aa), were not met were open to it on the material before it and for the reasons it gave. The Tribunal had jurisdiction to review the delegate's decision, being a Part 7-reviewable decision under s.411 of the Migration Act, and reached a decision that was open to it in accordance with law. This ground would fail.
[33] Section 65(1) and s.415 of the Migration Act
On my own reading of the Tribunal’s decision, there is no viable argument of jurisdictional error.
Conclusion
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
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 this application was filed. The applicant did not wish to be heard on costs.
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-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 3 July 2018
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