DJR17 v Minister for Immigration and Border Protection

[2019] FCCA 3962

FEDERAL CIRCUIT COURT OF AUSTRALIA

DJR17 v Minister for Immigration & Border Protection [2019] FCCA 3962

File number(s):	MLG 1630 of 2017
Judgment of:	JUDGE RIETHMULLER
Date of judgment:	12 February 2019
Catchwords:	MIGRATION – judicial review – no matters of principle – application dismissed
Number of paragraphs:	13
Date of last submissions:	12 February 2019
Date of hearing:	12 February 2019
Place:	Melbourne
The Applicant:	Appeared in person
Solicitor for the Respondent	Mills Oakley Lawyers

ORDERS

MLG 1630 of 2017

BETWEEN:

DJR17
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE RIETHMULLER
DATE OF ORDER:	12 FEBRUARY 2019

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The Applicant pay the First's Respondent's costs fixed in the sum of $3,737.

EX TEMPORE REASONS FOR JUDGMENT

JUDGE RIETHMULLER:

1. This is an application for judicial review of a decision by the Administrative Appeals Tribunal made on 30 June 2017.  The Tribunal affirmed the decision of a delegate of the first respondent made on 3 March 2016 to refuse to grant the applicant a protection visa. 

   BACKGROUND

2. The applicant, in this case, is a male citizen of Malaysia.  He came to Australia in July of 2015 on an electronic travel authority (commonly referred to as a tourist visa).  In October 2015, just before the tourist visa expired, the applicant applied for a protection visa.  He said in submissions before me today that he may have applied for the wrong visa type, but he was unsure, and this was the visa type that people told him to apply for. 

3. The Applicant explained that life in Malaysia is difficult.  He w­as only earning $1000 per month, and that he wanted to work and live in Australia so as to provide for himself and, hopefully, his family who, at this stage, remain in either Malaysia or Singapore. 

   Applicant’s Case

4. In the applicant’s protection visa application, he sets out the nature of his claims.  In substance, these are summarised by the Tribunal, at paragraphs 19 to 20, where he said:

   19. The applicant provided the following information in a handwritten statement. He is going "through financial hardship and commitment that [he's] bearing which leads to loan shark disturbance in [his] life" in Malaysia.

   20. He does not earn enough to support his family. Inflation and the weakening of the Malaysian currency, together with an uncertain economy, make job opportunities scarce and the salaries are low.

5. The applicant also raised, before the Tribunal, a claim that he had debts to a loan shark or, at least, his wife did, who was pressing for payment. However, with respect to those debts, the Tribunal stated at paragraph 33 that:

   The applicant was asked what would be the worst thing that could happen to him if he goes back to Malaysia. He said that they would kill him not physically, but mentally. He said the loan sharks are constantly coming to his wife (to the family home) and using bad words. They speak nicely to the applicant, but they speak completely differently to his wife. 

   The Tribunal’s Findings

6. The Tribunal considered his evidence following a hearing with him personally, and did not accept that he owed money to loan sharks for the following reasons:

   47. First, the applicant had a police report in relation to a debt allegedly owed by his brother-in law.  It demonstrates that the brother-in-law was not afraid to approach the authorities to seek protection. The applicant did not claim that there was some reason why his brother-in law could approach the police whereas the applicant and his wife could not. The Tribunal considers that if indeed the applicant or his wife were being harassed by loan sharks, they would have approached the police.

   48. Secondly, the Tribunal finds it implausible that his brother-in-law had paid off his loan and yet for some reason he was still being harassed.

   49. Thirdly, the Tribunal finds it even less plausible that the applicant's wife was being harassed in relation to her brother's (the applicant's brother-in-law's) debt - after it was paid off – given that she was not the borrower.

   50. Fourthly, the applicant's evidence was inconsistent in relation to the things that the loan sharks have been doing to harass his wife e.g. he said that they came into the house and refused to leave until they were paid but he also claimed that they remained outside and never entered the house.

   51. Further, as discussed with the applicant at the hearing, if he was worried for his wife's and children's safety, he would not have left them behind in the house that was allegedly known to the loan sharks.

   52. The Tribunal finds that the applicant, his wife and his brother-in-law do not owe money to any loan sharks and they are not being harassed, threatened, intimidated or harmed in any way by loan sharks to whom they may have owed money in the past.

   53. The Tribunal finds that the applicant declared bankruptcy or was declared a bankrupt and he does not owe any money to any financial institutions.

7. The Tribunal, therefore, did not accept that this was a ground for a protection visa.  Similarly, the general quality of life issues in Malaysia do not provide a proper basis for a protection visa under the current provisions of the Act and Regulations.  As a result, the Tribunal – not surprisingly – refused to grant the applicant a protection visa after considering the claims both individually and accumulatively. 

   GROUNDS FOR JUDICIAL REVIEW

8. The applicant, in his application for judicial review sets out the following, in the section of the form where he was to provide the grounds of the application:

   (a)Jurisdictional error made by the AAT.

   (b)See attached affidavit for grounds. 

9. The affidavit in support that the applicant provided contained three pages of single line spaced small font typing, setting out his complaints about the fact-finding process of the Tribunal.  Counsel for the Minister has attempted to address each of these as if they contained identifiable grounds, and set out in written submissions the following:

   28. In paragraph 1, the applicant takes issue with the Tribunal’s observation (at CB 117, [26]) that he “said that he is married, he remembers the date (22 February) but not the year. He guessed it was 6-7 years ago”. He maintains that, at the time, he was “blurred” and “did not recall the date and year”. No arguable case of error is disclosed as the Tribunal was simply recording the applicant’s actual oral evidence (which is not disputed) and did not, in any event, rely on this matter to support any adverse assessment of findings.

   29.In paragraph 2, the applicant states he borrowed money with interest from three different loan sharks but this is inconsistent with his oral evidence to the Tribunal (see: CB 118, [32]) and simply invites impermissible merits review, which the Court cannot undertake.

   30. In paragraphs 3, 4, 5 and 6, the applicant respectively cites the Tribunal’s reasons (at CB 118, [33], [34], [36] and [39]) and seeks to elaborate upon the evidence he gave to the Tribunal about: the harm he feared and allegedly experienced from loan sharks in Malaysia; the money his brother-in-law owed; and the making of a police report. Again, such matters simply dispute the factual conclusions the Tribunal made about the applicant’s evidence and seeks to impermissibly provide new evidence, which is inappropriate in judicial review proceedings. Whilst the applicant also contends (at [5]) that the Tribunal did not understand what he was trying to say, he has not filed any evidence such as a transcript of the Tribunal hearing to substantiate his complaint and there is nothing to suggest that the Tribunal misconstrued or misunderstood the evidence he gave.

   31. The Tribunal’s reasons (at CB 119-120, [43]-[65]) reveal it expressly considered (but did not accept) the claims made by the applicant in his Protection visa application and at the Tribunal hearing. The Tribunal’s factual findings about the applicant’s credibility and the credibility of his claims were open on the available material and for the reasons that it gave,3 and were not irrational or illogical, unreasonable or unsupported by cogent matters or a false factual premise. If reasonable minds could differ as to the conclusions drawn from the evidence, illogicality or irrationality or unreasonableness cannot arise.4 No arguable case of jurisdictional error is demonstrated in these paragraphs.

   32. Similarly, in paragraphs 7, 8, 9, 10 and 11, the applicant seeks to challenge the Tribunal’s findings and reasons (at CB 118, [42], [47]-[52]) and explain and expand upon his evidence in relation to the matters examined in those particular paragraphs of its decision. The Tribunal was under no obligation to uncritically accept any and all allegations made by the applicant,5 and his attempt to now raise new evidence misconceives the proper scope of judicial review. The Court cannot consider whether the applicant is entitled to a visa. Nor can the Court make its own findings about the applicant’s factual claims and evidence in substitutions for those of the Tribunal. The task of the Court is to review the Tribunal’s decision and approach for jurisdictional error and, absent such error, the Tribunal’s decision is validly made. Again the applicant’s complaints in these paragraphs amount to impermissible merits review

   33. The applicant also variously contends in his affidavit that: the Tribunal “misunderstood” his situation (at [8]); was “getting confused about 2 different loan sharks” (at [9]); and the Tribunal refused to accept his claims because he did “not have proper evidence” (at [13]). However, these assertions either mischaracterise the Tribunal’s actual findings and reasons or make assertions without any supporting evidence and, in substance, seek to contend that the Tribunal ought to have come to a different factual conclusion on the new evidence that the applicant now seeks to raise. Again, these matters amount to impermissible merits review and establish no arguable case of jurisdictional error.

   34. In paragraph 15, the applicant states the “Tribunal member was really in a hurry to make a decision on my case and did not consider all the facts”. Again, there is no evidence or any proper basis to support this assertion. The applicant attended a hearing before the Tribunal and was afforded a real and meaningful opportunity to give evidence and present arguments. The Tribunal’s reasons (which is the only record of what occurred at the hearing) reveals the Tribunal carefully analysed and considered the applicant’s claims and evidence and there is nothing to suggest it overlooked any relevant claims or material evidence. The further allegation in this paragraph that the Department did not consider the applicant “case appropriately” also establishes no arguable case of error as the Court has no power to review the delegate’s decision: s 476(2) and (4) of the Act.

10. The reality is that, in this case the submissions of the Minister must be accepted.  The Tribunal did not accept the applicant’s evidence with respect to the loan sharks, and nothing else in his case appears to give rise to an arguable basis for a protection visa.  The Tribunal clearly considered the relevant matters that were placed before it, and as the Minister’s representatives point out, the Tribunal is under no obligation to uncritically accept anything that is placed before it in evidence. 

11. Some of the complaints by the applicant relate to the quality of the hearing.  For example, a complaint that the member was in a hurry to make a decision in the case, and did not consider all of the facts. However, there does not appear to be any factual material that was placed before the Tribunal that was not considered, and this is, really, a ground that is, in substance, seeking a merits review of the Tribunal’s decision.  Having said that, I note that from the nature of the submissions made by the applicant before me, it seems that his case is, in large part, based upon a request that he be granted a visa on compassionate grounds rather than a protection visa, as a result of the poverty that he would experience as a citizen in Malaysia, earning only around $1000 per month, and attempting to support his family.

    CONCLUSION

12. None of the matters raised by the applicant give rise to an arguable case or, indeed, give rise to issues or questions that would result in sufficient material to give rise to issues that would warrant proceeding further to make further inquiries or have further submissions about those issues. 

13. On the material before me, the applicant’s case is, in my view, bound to fail.  In the circumstances, I therefore dismiss the application under the show cause provisions. 

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riethmuller.

Associate:

Dated:       28 September 2021