Dle18 v Minister for Home Affairs
[2021] FedCFamC2G 180
•22 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DLE18 v Minister for Home Affairs [2021] FedCFamC2G 180
File number(s): MLG 1926 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 22 October 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection (Class XA) visa – whether the Tribunal met its obligations of procedural fairness - where the Tribunal identified numerous inconsistencies in the Applicants’ evidence - where the Applicants have not particularised the grounds of review – where the Applicants did not identify an error in the reasoning of the Tribunal – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 ss 424A(1), 424A(2)(a), 424B(1), 424B(2), 425, 425A, 441A(5)
Migration Regulations 1994 reg 4.35D
Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of hearing: 20 October 2021 Place: Melbourne Advocate for the Applicants: In person Solicitor for the Applicants: None Solicitor Advocate for the Respondents: Mr Cunynghame Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 1926 of 2018 IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)BETWEEN: DLE18
First Applicant
DLF18
Second Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
22 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Application filed on 3 July 2018 be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 BLAKE:
INTRODUCTION
This is an application for review of a decision made by the Administrative Appeals Tribunal ('Tribunal') on 18 June 2018. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicants a protection (Class XA) visa ('visa').
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The First Applicant is the primary applicant for the visa. The Second Applicant is from the same family unit of the First Applicant and is a secondary applicant for the visa. In these reasons I refer to the First and Second Applicant collectively as 'Applicants'.
The Applicants are Malaysian nationals. They arrived in Australia on 7 April 2016 as visitors. The Applicants applied for the visa on 20 June 2016.
On 21 September 2016, a delegate of the Minister ('delegate') refused to grant the visas.
On 17 October 2016, the Applicants applied to the Tribunal for review of the delegate's decision.
On 3 April 2018, the Tribunal wrote to the Applicants inviting them to attend a hearing to give evidence and present arguments relating to their application.
On 26 April 2018, a hearing was held at the Tribunal. The Applicants attended the hearing.
On 10 May 2018, the Tribunal wrote to the Applicants pursuant to section 424A of the Migration Act 1958 ('Act'). The letter set out information provided by the Applicants at the Tribunal hearing, and invited them to comment on the information which may form the reason, or part of the reason, for affirming the decision under review (Court Book 130).
On 21 May 2018, the Applicants wrote to the Tribunal by way of email, in response to the letter from the Tribunal dated 10 May 2018 (Court Book 133).
On 18 June 2021, the Tribunal affirmed the decision not to grant the Applicants the visa.
The Applicants commenced proceedings in this court by filing an Application for Review (‘Application’) and affidavit in support on 3 July 2018.
The matter was ultimately listed for final hearing on 20 October 2021. The Applicant has not filed any amended application or outline of submissions, and relied upon the material already filed with the Court. I have read that material. The Minister filed a Court Book and written outline of submissions.
THE DECISION OF THE TRIBUNAL
Given the Applicants are unrepresented and the grounds of review largely un-particularised, I have reviewed the decision of the Tribunal. The decision may be briefly summarised as follows:
(a)the Tribunal summarised the criteria for the grant of the visa at paragraphs [3]-[8] of its reasons;
(b)the Tribunal set out the First Applicant's claims for protection at paragraph [10] of its reasons. In summary, those claims were that the First Applicant borrowed money to invest in businesses and stocks, and that he lost his savings and was forced to borrow money from a moneylender. The investments he made using the money borrowed from the moneylender were unsuccessful. The First Applicant then borrowed further money from a person of Chinese descent (around 800,000 Malaysian Ringgit) to invest in stocks and lost that money. Consequently, a Chinese gang threatened his family, and started looking for him, which led to him fleeing Malaysia. He fears being killed if returned to Malaysia and his mental health has deteriorated;
(c)the Tribunal noted the importance of adopting a 'reasonable approach when making findings of credibility' at [13] and [14] of its reasons;
(d)the Tribunal accepted the Applicants were Malaysian citizens at [15] of its reasons;
(e)the Tribunal commenced its assessment of the Applicants' claims at paragraph [16] of its reasons;
(f)the Tribunal identified a number of inconsistencies in the evidence given by the Applicant. Those inconsistencies related to his occupation, the amount of the alleged loan, why he borrowed the money and whether the moneylender was part of a gang. It also noted that the Applicant had been unable to explain the meaning of investment terms despite claiming to be experienced in investing: at [21] of its reasons;
(g)at paragraph [22] of its reasons, the Tribunal recorded evidence given by the Applicant that, among other things, he had never made any repayments on the loans, he had stayed with friends to avoid the loan shark, and that he lived and worked for 6 to 8 months before leaving Malaysia without ever being located;
(h)at paragraph [23] of its reasons, the Tribunal recorded that the First Applicant gave evidence, inter-alia, about the movements of his family and threats to them;
(i)at paragraph [24] of its reasons, the Tribunal considered evidence that the loan sharks had stopped looking for the First Applicant and pursuing repayments;
(j)at paragraph [25] of its reasons, the Tribunal considered evidence by the First Applicant in relation to his mental health, and noted he had not sought medical help for this while in Australia;
(k)at paragraph [27] of its reasons, the Tribunal considered various evidence given by the Second Applicant including in relation to the amount of the loan (200,000 Malaysian Ringgit), that the First Applicant had initially made repayments on the loan, that the First Applicant had bought timber in relation to a housing development which stalled and faced a loss, and that he only stopped the repayments and got into trouble about three months before leaving Malaysia. The Tribunal also recorded other evidence given by the Second Applicant at paragraphs [28]-[31] of its reasons;
(l)at paragraph [32] of its reasons, the Tribunal recorded that it sent a letter to the Applicants under section 424A of the Act and invited comments in relation to, inter alia, inconsistencies in the evidence. The Tribunal considered the Applicants' response, noted that it did not assist and stated that it did not address why the First Applicant could not explain details about his alleged investments: at [34]-[35] of its reasons;
(m)the Tribunal ultimately concluded at [39] of its reasons that the Applicants had fabricated aspects of their evidence to form a basis for a claim for protection. The Tribunal also observed the evidence by the Applicants was ‘unreliable, vague, inconsistent and lacking credibility’ (at [36] of its reasons);
(n)at [37] the Tribunal did not accept that the First Applicant suffered from depression due to being chased by moneylenders or that he fled from Malaysia because he feared harm from moneylenders: at [38]-[39] of its reasons;
(o)at [41] and [42], the Tribunal recorded the following:
41.The Tribunal has not accepted that the first applicant borrowed money from a private money lender, that he failed to repay the debt in any amount, or that he and his family were threatened by money lenders as claimed or forced to split up and go to other countries to avoid harm from the money lenders. The Tribunal has not accepted that either applicant suffered from depression before they departed Malaysia due to a fear of harm from the moneylenders or that they have suffered from depression since they have been in Australia. The Tribunal does not accept that there is any risk to the applicants from money lenders and consequently does not accept that there is any risk on returning to Malaysia that they would cause the applicants, or the second applicant's baby, any harm. The Tribunal does not accept that returning to Malaysia would place the second applicant's pregnancy at any risk. Based on those findings, the Tribunal does not accept that there is a real chance that either applicant would suffer serious harm if they returned to Malaysia now or in the foreseeable future.
42.The Tribunal does not accept that the applicants have a well-founded fear of persecution if they return to Malaysia, now or in the reasonably foreseeable future.
(p)in light of its previous findings, the Tribunal ultimately found that the Applicants did not face a real risk of significant harm upon return or that they satisfied the criteria for the grant of a visa under the complementary protection criterion under section 36(2)(aa) of the Act: at [43]-[45] of its reasons.
THE APPLICATION
There are five grounds of review contained in the application for review. These are as follows:
1.I am disappointed and dissatisfied with the decision to refuse my application of protection visa given by appeal tribunal because they didn't defend us as a refugee.
2. As a refugee I have right to get justice because it effect my life and future.
3. I want a right to review my case to circuit court with fairly justice.
4.I disagree with the decision from the tribunal does not accept my sister and I have a well-founded fear of persecution if we return to Malaysia, now or in the reasonably foreseeable future (refer chapter 42 statement of decision and reasons) because we really facing death threats from gangsters. We can prove it.
5.In chapter protection visa - criteria provided for by this Migration Act 1958 (2A)(d) "the non-citizen will be subjected to cruel or inhuman treatment or punishment" so I believe we have right to review my case by follow Migration Act 1958. Also can review in Migration Act 1958 (5)(I)(a). [errors in general]
At the hearing before me, the Applicants made submissions that were similar to what is contained within the grounds of review. The Applicants stated that they disagreed with the decision of the Tribunal, and that they did not get justice. They took issue (in a general sense) with paragraphs [38] and [39] of the reasons of the Tribunal. They also submitted that Malaysia was not a stable country, there was corruption within Malaysia, the economy was weak and that citizens were jobless. It was submitted that justice requires a review of the case.
It is understandable that the Applicants wish to remain in Australia. There are, however, two fundamental difficulties with the case they advanced. First, the grounds of review are un-particularised and no error has been identified in the reasoning of the Tribunal. Failure to particularise a ground of review is a sufficient basis for it to be dismissed: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (Gilmour J) at [35]. Second, the Applicants invited the Court to undertake a review of the merits of their case, something that the Court cannot do: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272]. Both of the matters that I have identified are a sufficient basis on which to dispose of the application.
This is a matter in which the Tribunal identified numerous inconsistencies in the evidence before it. The Tribunal considered these inconsistencies at length. It ultimately came to the view that the evidence given by the Applicants was unreliable, inconsistent, vague and lacking in credibility. Indeed, such were its concerns about the evidence of the Applicants that it formed the view that 'the claim of involvement with and fear of harm from moneylenders was fabricated by them to form the basis for a claim for protection': at [39] of its reasons.
Before me, the Applicants took specific issue with the findings of the Tribunal at paragraph [38]-[39] of the Tribunal’s reasons. Again, it is understandable that the Applicants do not like or disagree with the conclusions of the Tribunal contained in those paragraphs. In my view, however, those conclusions were open to the Tribunal given the detailed analysis it undertook of the evidence before it which is set out in the preceding paragraphs of its decision. While the Applicants took issue with paragraphs [38]-[39] of the reasons of the Tribunal in a general sense, they did not identify how or why the findings of the Tribunal in those paragraphs might be impugned.
I have reviewed the decision of the Tribunal with an eye to whether it has met its obligations of procedural fairness. The Tribunal invited the Applicants to attend the hearing as it was required to do under section 425 and section 425A of the Act. The Applicants attended the hearing and were assisted by an interpreter. They knew their credibility was at issue given the delegate's decision.
I also observe that the Tribunal put information to the Applicants following the hearing pursuant to section 424A of the Act. There is a question as to whether the Tribunal was required to do this - the Tribunal simply doubted the evidence put before it by the Applicants and it seems to me it was not required to put these doubts to the Applicants: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]. If, however, I am wrong about this, I note that the invitation sent by the Tribunal to the Applicants complied with the requirements contained within sections 424A(1), 424A(2)(a), 424B(1), 424B(2) of the Act, regulation 4.35D of the Migration Regulations 1994 and section 441A(5) of the Act. Further, the Tribunal had regard to the response from the Applicants in reaching its conclusion.
When the above matters are considered, no breach of the Act or the procedural fairness obligations imposed on the Tribunal has occurred. Further, the Applicant has not made out any of the grounds of review.
CONCLUSION
The application for review must be dismissed. The Applicants have been entirely unsuccessful. Costs usually follow the event. The Minister seeks costs in accordance with the amount set out in the scale to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. I will therefore make an order for costs in favour of the Minister in the amount of $7,853.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 22 October 2021
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