DQP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3097

FEDERAL CIRCUIT COURT OF AUSTRALIA

DQP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3097

File number(s):	SYG 3366 of 2016
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	17 November 2020
Catchwords:	MIGRATION – application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision by Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal considered or sufficiently considered applicant’s claims – application dismissed
Legislation:	Migration Act 1958 (Cth), ss 5LA, 36(2)(a), 36(2)(aa), 36(2B)(b),476
Cases cited:	Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Number of paragraphs:	25
Date of hearing:	12 November 2020
Place:	Sydney
Applicant:	Appeared in person, by telephone, assisted by interpreter
Solicitor for the First Respondent:	Ms C Saunders of MinterEllison Lawyers, by telephone

ORDERS

SYG 3366 of 2016

BETWEEN:

DQP16

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	17 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs set in the amount of $5,600.

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, a citizen of Malaysia, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Protection (subclass 866) visa (Protection visa).

   CLAIMS FOR PROTECTION

2. The applicant stated her claims in a document titled “Statement of Reasons” and a document titled “Declaration”, both of which formed part of the application for a Protection visa.[1] The claims the applicant made in those documents are as follows:

   (a)The applicant is a Malaysian Chinese. She studied until form 3 at high school when she went to work at a hair salon.

   (b)In 2012 the applicant wanted to set up a small hair salon business. The applicant took out loans from a private loan provider. She rented a shop, and did “all [the] decorating and equipment”.

   (c)The applicant applied to the government for a licence. One week after she applied the applicant received a call from a government officer who informed the applicant that unless she paid RM8,000 the applicant would not be granted a licence.

   (d)The applicant could not afford to pay the licence fee. The applicant lost all her savings and owed the private lender RM30,000. Without the licence the applicant could not start her business and make money.

   (e)The applicant hid herself in a room because the lender came to her house every day to ask the applicant to repay the loan. They “are like loan sharks as they wanted to earn money too”.

   (f)The applicant complained to the complaint handling office about the long delay in being granted a licence. The applicant was told that if the person complaining is not Malay “it may take a long time to process” the applicant’s complaint. The applicant was frustrated, and her parents asked her to go to Australia.

   (g)“Recently” the applicant’s parents told her that “Ketuanan Melayu”, being a political concept emphasising Malay pre-eminence, is getting stronger because newspapers in Malaysia openly tell Chinese not to “kick up a fuss”, and Malaysia belongs to Malays, not Chinese. This is racial discrimination.

   (h)The applicant wants to apply for protection on the grounds of having suffered racial discrimination in Malaysia.

   [1] CB40-42

3. The applicant appeared before the Tribunal to give evidence and present arguments. The applicant there said that she had obtained loans from her relatives, and they were asking for the loans to be repaid. The applicant said she left Malaysia because she could not stand the pressure because her relatives came and made rowdy scenes at her home; they acted like loan sharks insisting the applicant repay the loans. The relatives spoke very loudly, stomped their feet, and accused the applicant of cheating.

   TRIBUNAL’S REASONS

4. The Tribunal accepted that, after having been employed as a hairdresser for many years, the hairdresser wished to start her own business operating a hairdressing salon; that the applicant took out loans to establish the business but, for one reason or another, the business was unable to operate, or was unsuccessful. The Tribunal, however, was not satisfied the applicant’s business failed because she was denied a licence after she was unable to pay an exorbitant fee that had been imposed on her due to her ethnicity. The Tribunal relied on the following matters:

   (a)The Tribunal found the applicant’s evidence about the attempts she made to obtain a licence to be “confused and lacking in detail”. The applicant was unclear about whether she was dealing with a particular officer or with a government department generally.

   (b)Country information indicates the Chinese dominate business and commerce in Malaysia. The applicant was unable to say whether the fee was a bribe demanded by a rogue official or it reflected government policy.

5. The Tribunal also accepted the applicant was unable to repay loans given to her by the applicant’s maternal uncles, and that her uncles were angry with the applicant and, for this reason, may have created a scene at the applicant’s home on more than one occasion in which they warned the applicant to repay the money. The Tribunal, however, did not accept the applicant feared for her safety. The Tribunal relied on the applicant’s history of travelling to Singapore and returning to Malaysia “around this time”, and the applicant’s delay of approximately 3 years in applying for a Protection visa in Australia.

6. On the basis of these findings the Tribunal considered the applicant’s position should she return to Malaysia “now”; and that would be as an ethnic Chinese woman with significant unpaid debts.

   (a)The Tribunal was not satisfied the applicant would be unable to pay her uncles back in small instalments. The Tribunal relied on the applicant’s evidence that she has been able to pay back at least RM10,000 of the RM30,000 worth of loans.

   (b)The Tribunal did not accept that the applicant would be denied a means of earning a livelihood in Malaysia. The Tribunal relied on the applicant’s having worked as a hairdresser for 13 years before she decided to commence her own business.

   (c)Even if the applicant would be unable to repay the debts, the Tribunal was not satisfied there would be a real, as opposed to a remote, chance or risk the applicant’s uncles would physically harm, mistreat, or threaten the applicant in a way that would amount to serious harm, or “significant harm as defined”. And if the applicant remains concerned about her uncles, country information suggests there are “effective protection measures” within the meaning of s.5LA of the Act available in Malaysia, and that the applicant could obtain protection from authorities in Malaysia such that there would not be a real risk the applicant will suffer significant harm, thus engaging s.36(2B)(b) of the Act. Additionally, the Tribunal was satisfied that if, contrary to what it found, the applicant faced a real chance or risk of serious or significant injury from the uncles, it would be reasonable for the applicant to relocate to another area of Malaysia.

   (d)Relying on country information, the Tribunal found there may be some low-level discrimination against ethnic Chinese Malaysians who try to gain entry into public universities or the civil service. The Tribunal nevertheless found that, “generally speaking Chinese Malaysians do not experience discrimination or violence in their lives on a day to day basis”. For these reasons, the Tribunal was satisfied there is not a real chance or risk of the applicant suffering discrimination or mistreatment amounting to serious or significant harm in her home area because of her Chinese ethnicity.

   (e)The Tribunal accepted the applicant is unlikely to be in a position to operate her own business in the immediate future; but the Tribunal was not satisfied that if her circumstances were to change the applicant would be denied a business licence if she were to apply for one. The Tribunal relied on country information that shows ethnic Chinese dominate business and commerce in Malaysia. The Tribunal further found, however, that it was not satisfied that an inability to operate a business would in itself constitute persecution or significant harm. The Tribunal was not satisfied there is a real chance or risk of the applicant suffering any economic harm amounting to serious or significant harm in Malaysia, given the Tribunal’s findings about the applicant’s capacity to seek and gain employment.

7. On the basis of these findings, the Tribunal was not satisfied the applicant met the criteria provided for by s.36(2)(a) and s.36(2)(aa) of the Act.

   GROUNDS OF APPLICATION

8. The applicant, who is not legally represented, but who had available to her the assistance of an interpreter, relies on three grounds of application. These grounds are repeated in the affidavit the applicant filed at the time she filed the application.

9. At the hearing (which was conducted by telephone) I read out each ground and I asked the applicant whether she wished to say anything in relation to the ground. I also invited the applicant to make whatever submissions she wanted to make in support of her application that the Tribunal’s decision be set aside.

   Ground 1

10. Ground 1 is as follows:

    The Tribunal failed to give sufficient consideration to my claims that I will be persecuted by the Malaysia Government if I return to Malaysia due to my ethnical [sic] background. I am a Chinese minority and have been subject to racial discrimination in Malaysia.

11. The only submission the applicant made to me in relation to this ground is that she had put these matters to the Tribunal.

12. The ground as stated acknowledges the Tribunal considered the applicant’s claims that she will be persecuted due to her Chinese ethnicity; but the ground does not identify the respects in which it is contended the Tribunal’s consideration was not sufficient. For that reason alone the ground fails. It should be apparent from my summary of the Tribunal’s reasons, however, that the Tribunal did consider the applicant’s claims based on her being an ethnic Chinese. The Tribunal identified and considered the claims the applicant made in relation to her application for a business licence; and it considered country information about the position of ethnic Chinese in Malaysia. The Tribunal’s findings were reasonably open to it to make for the reasons it gave.

    Ground 2

13. Ground 2 is as follows:

    The Tribunal failed to give sufficient consideration to the information I provided during the Tribunal interview, that I have been blackmailed by Malaysian officials and was refused a business licence application, which resulted in my financial hardship, and that I have been threatened by family members because I have borrowed too much money from them and is [sic] unable to repay the debt.

14. The only submission the applicant made to me in relation to this ground was that she had been intimidated in Malaysia.

15. Ground 2, like ground 1, acknowledges the Tribunal considered the information the applicant provided to the Tribunal; but it does not identify respects in which the Tribunal did not sufficiently consider the information the applicant provided to the Tribunal. In any event, the Tribunal did consider the applicant’s evidence in relation to her application for a business licence; but, for reasons that were reasonably open to it, the Tribunal did not accept the applicant’s evidence. The Tribunal also considered the applicant’s evidence about the loans she said she had taken out. The Tribunal accepted that evidence but, for reasons that were reasonably open to it, the Tribunal was not satisfied this exposed the applicant to a real risk or chance of significant or serious harm.

16. Ground 2, therefore, also fails.

    Ground 3

17. Ground 3 is as follows:

    The Tribunal also failed to consider relevant country information showing the [sic] racial discrimination against Chinese minority does exist in Malaysia.

18. At the hearing the applicant said she did not wish to say anything in relation to this ground because she had already told the Tribunal about these matters. I asked the applicant whether she could identify the country or other information she claims the Tribunal did not consider. The applicant did not understand what is meant by “country information”; but after I attempted to explain the notion to the applicant, the applicant submitted that Malay Chinese are treated differently from Malays. That is an appeal to the merits of the applicant’s claims for protection and discloses no jurisdictional error.

19. As stated ground 3 fails because it does not identify the country information the ground claims the Tribunal failed to consider. The Tribunal referred to country information relating to ethnic Chinese in Malaysia; and it considered it.

    OTHER SUBMISSIONS

20. At the hearing the applicant said she did not understand why the Tribunal did not accept her claims. The applicant submitted she had not been treated properly, by which the applicant said she meant she was treated unfairly in Malaysia. These submissions appal to the merits of the applicant’s claims for protection, and do not disclose any jurisdictional error.

    438 CERTIFICATE

21. In its reasons the Tribunal referred to a certificate that was issued purportedly under s.438 of the Act (Certificate). The Tribunal said the documents covered by the Certificate relate to internal administrative matters, and it found the documents had no bearing on the Tribunal’s consideration of the merits of the applicant’s Protection visa application.[2]

    [2] CB151, [19]

22. It is apparent the Tribunal did not disclose the Certificate to the applicant before it decided to affirm the delegate’s decision. The Minister, however, accepts the Certificate is invalid, and has adduced into evidence the documents covered by the Certificate.[3] There are two. One is a document titled “Identification Test: Protection Visa Applicants”. That document confirms the applicant is the person she claims to be. The second document is a checklist which states it is to be completed “at the time of making the RRT reviewable decision”. These documents are clearly irrelevant to any of the issues relating to the application for review that was before the Tribunal. The Tribunal’s failure to disclose the Certificate to the applicant, therefore, did not deprive the applicant the possibility of a successful outcome.[4]

    [3] Affidavit of A Davyskib 20.01.2019; exhibit “AD1”

    [4] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, at [2]

    DISPOSITION AND COSTS

23. The applicant has failed on all of the grounds on which she relies. I propose, therefore, to order that the application be dismissed.

24. At the hearing I informed the applicant that the usual order a court makes in relation to costs is that the successful party is entitled to an order for costs against the unsuccessful party. I asked the applicant whether there was any reason why I should not order costs against her if the Minister succeeds. The respondent said that an order for costs would add to the financial trauma she has already experienced.

25. I accept that an order for costs may work financial hardship on the applicant; but that by itself is not a sufficient reason for my not exercising my discretion in favour of ordering the applicant to pay the Minister’s costs. I propose, therefore to order that the applicant pay the first respondent’s costs. I also propose to set those costs in the amount of $5,600, being the amount for which the Minister submitted I should set the Minister’s costs, and which is less than the amount provided for in Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       17 November 2020