DJQ22 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1108
•30 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DJQ22 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1108
File number: MLG 2298 of 2022 Judgment of: JUDGE LADHAMS Date of judgment: 30 October 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision not to grant the applicant a protection visa – where the applicant’s grounds are directed to the merits of the Tribunal decision – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36, 425, 425A, 426A, 441A, 476, 477 Cases cited: 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
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 28 October 2024 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Mr S Knuckey Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2298 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DJQ22
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
30 OCTOBER 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
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 LADHAMS:
INTRODUCTION
The applicant is a citizen of Malaysia who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision. The applicant seeks judicial review of the Tribunal decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth)[1] (Migration Act).
[1] Significant amendments have been made to the Migration Act following the commencement of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Unless otherwise stated, all references to the Migration Act in this judgment are references to the provisions of the Migration Act in effect at the relevant time of the events described in this judgment. All references to the Administrative Appeals Tribunal are to the Tribunal as it existed at the time the applicant’s matter was before it for review.
The applicant’s grounds of application assert that:
(a)the Tribunal made a jurisdictional error by saying that the applicant did not face a real risk of significant harm; and
(b)the applicant requests a second chance for him to provide more details about his claims.
For the reasons explained below, I have found that the applicant has not established that the Tribunal decision is affected by jurisdictional error. The application to this Court is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant arrived in Australia in February 2017 on an Electronic Travel Authority.
On 10 May 2017 the applicant applied for a protection visa. The applicant indicated in his protection visa application that he left Malaysia due to being jobless, racial discrimination, a bad economy and corrupt government. He indicated that if he returned to Malaysia, he will be jobless and have no money for life.
On 4 August 2017 a delegate of the Minister refused to grant the applicant a protection visa and on 30 August 2017 the applicant applied to the Tribunal for merits review of the delegate’s decision.
The Tribunal wrote to the applicant by email on 20 July 2022 advising that his file was being prepared to be given to a Tribunal member and requesting that he complete a pre-hearing information form within seven days. The applicant did not respond to this communication.
On 19 August 2022 the Tribunal again wrote to the applicant and invited him to attend a hearing on 9 September 2022 to give evidence and present arguments relating to the issues arising in his case. This invitation was sent to the applicant at the email address recorded in his application to the Tribunal.
The applicant failed to attend the hearing scheduled before the Tribunal on 9 September 2024. On the same day the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.
SUMMARY OF THE TRIBUNAL DECISION
The Tribunal noted in its reasons for decision that the applicant did not appear at the hearing before it and that it decided, pursuant to s 426A of the Migration Act, to make its decision on the review without taking any further action to enable the applicant to appear before it. In deciding to proceed in this manner, the Tribunal had regard to the hearing invitation sent to the applicant and was satisfied that the applicant was properly invited to a hearing in accordance with s 441A(5) of the Migration Act and that the invitation, which was sent to the applicant by email to the email address provided in his application, was not returned to sender. The Tribunal also observed that the applicant did not provide a mobile phone number in his application for review and therefore it was not possible for the Tribunal to send him SMS reminder messages in relation to the hearing.
The Tribunal accepted that the applicant was a citizen of Malaysia and found that Malaysia was the receiving country for the purposes of assessing the applicant’s protection claims.
The Tribunal found the applicant’s claims to be vague and contradictory and not supported by evidence.
The Tribunal had regard to the information the applicant provided in his protection visa application in relation to his employment history, including that he had been employed from 2009 until January 2017 before coming to Australia in February 2017, and found this to be inconsistent with his claim to have been jobless in Malaysia. The Tribunal also had regard to country information by the Department of Foreign Affairs and Trade (DFAT) in relation to the Malaysian economy and low rate of unemployment. The Tribunal found that the country information and the applicant’s past work history did not support his generalised claims that the Malaysian economy was bad and that he would not be able to get employment if he returned to Malaysia.
The Tribunal considered that the information that the applicant provided to the effect that he had lived at the same address from 1987 until he came to Australia in February 2017 was inconsistent with his claims that he tried to move to another state but his lifestyle was still the same.
The Tribunal noted that in his protection visa application the applicant claimed to be concerned about racial discrimination, but did not indicate that he ever suffered from racial discrimination and indicated that he had not experienced harm in Malaysia and did not think he would be harmed or mistreated if he returned.
The Tribunal had regard to country information published by DFAT and, based on this information, was not satisfied that the applicant would suffer the requisite level of harm on the basis of his Chinese Malay ethnicity or his Buddhist religion in Malaysia.
The Tribunal also had regard to country information about government corruption in Malaysia and, based on the country information and the applicant’s evidence, was not satisfied that the applicant would face the requisite level of harm in Malaysia due to government corruption.
Based on these findings of fact, the Tribunal was not satisfied that the applicant met the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant’s application for judicial review was filed on 14 October 2022. It was made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The application contains the following two grounds (reproduced without alteration):
1.I believe that the case officer made a jurisdiction error by saying that I did not face a real risk of significant faced politicial and economic issue. I may facing politicial issue, racial discrimination and corrupt government if I have return to Malaysia, and Malaysian authorities would be unable to protect me. The threat is real and significant, which would cause a fatal influence on me. Therefore, I would like to apply for protection in Australia.
2.I seek for my claims to be given a second chance for me to provide more details to strighter my claims but not just to concern.
The applicant’s application was accompanied by an affidavit which repeated the grounds of application and annexed a copy of the Tribunal decision.
The applicant was required, pursuant to an Order made by a Registrar of this Court on 9 February 2023, to file and serve written submissions, any amended application with proper particulars of the grounds of the application and any additional evidence on which he intended to rely 28 days before the hearing. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions as required by the Registrar’s Order.
The evidence before the Court comprises:
(a)the applicant’s affidavit filed on 14 October 2022;
(b)the court book filed on behalf of the Minister on 14 February 2023; and
(c)an affidavit of service of Emily Baggett filed on behalf of the Minister on 28 October 2024.
CONSIDERATION OF THE GROUNDS OF APPLICATION
Ground 1
By ground 1, the applicant asserts that the ‘case officer’ made a jurisdictional error by finding that he did not face a real risk of significant harm.
It is not clear precisely what the applicant means by ‘case officer’. At the hearing, I advised the applicant that I proposed to treat the ground as an assertion that the Tribunal made a jurisdictional error. As the Minister submitted, if the applicant’s ground is directed to the delegate’s decision, it is beyond the jurisdiction of the Court. That is because the delegate’s decision is a ‘primary decision’ within the meaning of s 476(4)(a) of the Migration Act, and this Court does not have jurisdiction in relation to primary decisions: s 476(2)(a) of the Migration Act.
Insofar as the ground asserts jurisdictional error in the Tribunal decision, it does not assert any specific type of jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2. Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
The applicant’s ground as drafted appears to express disagreement with the Tribunal decision. Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
At the hearing, I explained to the applicant that he can only succeed in his application to the Court if the Tribunal made a jurisdictional error. I gave him examples of some of the types of jurisdictional errors that can arise in migration matters, and I stood the matter down briefly before the applicant made his submissions so that he could consider what he wished to submit to the Court following the explanations I made.
When the applicant made his submissions to the Court, he did not assert that the Tribunal made any recognisable category of jurisdictional error, but instead submitted that he wishes to stay in Australia and does not want to return to Malaysia because of fear of racial discrimination.
The difficulty with the applicant’s submission is that it invites the Court to consider the factual merits of the Tribunal decision. The Court does not have any jurisdiction to engage in merits review of the Tribunal decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31]. I explained to the applicant at the hearing that the Court does not have any power to consider for itself whether he meets the criteria for the grant of a protection visa or to grant him a visa.
Although the Court cannot consider whether the applicant would face racial discrimination, the Tribunal could and did consider this claim at [29]-[32] of its reasons. In these paragraphs, the Tribunal said (footnotes omitted):
29.The applicant has claimed to be concerned about racial discrimination, but has not indicated that he ever suffered from racial discrimination. He indicated at questions 91 and 94 of his application that he did not experience harm in Malaysia and did not think he would be harmed or mistreated if he returned.
30.The Tribunal notes that the DFAT Country Information Report indicates that Article 8(2) of the Constitution forbids discrimination against citizens based on religion or race. Article 153(2), however, accords a ‘special position’ for ‘the Malays and natives of any of the States of Sabah and Sarawak’, thus permitting affirmative action policies. DFAT indicates that there were 6.7 million Chinese Malaysians in Malaysia in 2020, making up around 20 per cent of the population. Chinese Malaysians are one of the largest overseas Chinese communities in the world, and are Malaysia’s second largest ethnic group. Chinese Malaysians comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia. DFAT assesses Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system, or the civil service, including when seeking promotion opportunities, or when opening or operating a Chinese Malaysian owned business in the private sector.
31.DFAT also indicates that Buddhists represented just under 20 per cent of the total population in 2010, the last year for which official data is available, and that local sources estimate the current proportion of Chinese Malaysians who are Buddhist is around 80 per cent. DFAT assesses Buddhists are usually able to live free from societal discrimination on a day-to-day basis. They are usually able to worship freely without significant official interference. On rare occasions, they may face societal difficulties in cases where compulsory acquisition leads to their places of worship being relocated into inhospitable locations.
32.The Tribunal finds that the applicant’s evidence and the relevant country information does not support a finding that there is a real chance the applicant would suffer persecution involving serious harm due to his race and/or religion, should he return to Malaysia.
These paragraphs show that the Tribunal carefully considered the applicant’s claim based on racial discrimination and the evidence before it. The findings made by the Tribunal were open to it on the evidence before it.
In circumstances where the applicant’s ground also refers to significant harm, I have also considered the Tribunal’s assessment of the applicant’s complementary protection claims. The Tribunal relied on its anterior findings of fact, made when considering the applicant’s refugee claims, in concluding that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there was a real risk that the applicant would suffer significant harm, as set out in s 36(2A) of the Migration Act, from employers, the Malaysian Government and its authorities, members of the non-Chinese and non-Buddhist communities, or any other authority, organisation, person or group. Again, this finding was open to the Tribunal. The applicant provided minimal evidence to the Department or the Tribunal about his claims for protection. The Tribunal had regard to that evidence, which was set out in his application, along with country information it considered to be relevant, and made findings that a logical and rational decision-maker could have reached on the available material.
I do not otherwise identify any jurisdictional error in the Tribunal decision. The Tribunal correctly identified in its decision the issues for its determination and the law that it was required to apply. The Tribunal considered each of the claims for protection set out in the applicant’s protection visa application and considered relevant country information. The Tribunal reached a conclusion on the review application which was open to a rational and logical decision-maker on the material before the Tribunal. The Tribunal complied with the relevant provisions of the Migration Act, including by inviting the applicant to a hearing to give him an opportunity to give evidence and make arguments in relation to the issues in the review. The applicant did not attend the hearing. In circumstances where the applicant was properly invited to a hearing in accordance with ss 425 and 425A of the Migration Act, it was open to the Tribunal to make a decision on the review without taking any further action to allow or enable the applicant to appear before it: s 426A(1A)(a) of the Migration Act. The applicant has not asserted that the Tribunal did not act reasonably in proceeding in this manner and there is nothing in the materials before the Court to suggest that it was unreasonable for the Tribunal to proceed to make a decision when the applicant failed to appear at the hearing.
Ground 1 is not established.
Ground 2
By ground 2, the applicant indicates that he wishes to have a further opportunity to give more details about his claims. This does not assert any jurisdictional error in the Tribunal decision. As noted above, the Court does not have the power to consider the factual merits of the applicant’s claims. The Court is unable to remit the matter to the Administrative Review Tribunal for reconsideration unless the applicant establishes jurisdictional error in the Tribunal decision, which he has not done.
Ground 2 is not established.
CONCLUSION
As the applicant has not established that the Tribunal decision is affected by jurisdictional error, the application to this Court for judicial review of the Tribunal decision is dismissed.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 30 October 2024
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