DQW24 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 196
•28 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DQW24 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 196
File number(s): PEG 199 of 2024 Judgment of: JUDGE LIVERIS Date of judgment: 28 January 2025 Catchwords: MIGRATION – REVIEW OF ADMINISTRATIVE REVIEW TRIBUNAL – protection visa – applicant self-represented – whether Tribunal misconstrued significant harm – whether Tribunal failed to investigate the applicant’s claims – whether the Tribunal denied the applicant procedural fairness – no jurisdictional error established – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 5J(1)(a), 5J(4)(b), 5J(4)(c), 36(2)(a), 36(2)(aa), 404, 415, 424A, 424AA
Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021
Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
EYQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 105
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 28 January 2025 Place: Perth For the Applicant: The Applicant appeared in person Counsel for the First Respondent: Ms Martin For the Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 199 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DQW24
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
28 JANUARY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of Administrative Appeals Tribunal be amended to “Administrative Review Tribunal”.
3.The application filed on 8 June 2024 be dismissed.
4.The applicant pay the Respondent’s costs fixed in the sum of $6,500.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE LIVERIS
The applicant is a citizen of Indonesia. He arrived in Australia on 20 September 2017 pursuant to a Temporary Activity (Class GG) (Subclass 408) visa. On 28 September 2017, the applicant applied for a Protection (Class XA) (subclass 866) visa. In the visa application, the applicant said that he left Indonesia because of the economy issue. He has no job, cannot support himself and his family, has applied for many jobs in Indonesia but failed because of economic issues in the country. On 10 July 2018, the delegate refused to grant the applicant the protection visa.
On 12 July 2018, the applicant applied to the Administrative Appeals Tribunal for a review of the delegate’s decision. On 22 March 2024, the Tribunal invited the applicant to attend a hearing that was scheduled on 24 April 2024 to give evidence and present arguments relating to the issues in his case. The applicant returned the response to hearing invitation form, saying that he requires an Indonesian interpreter, that he did not intend to rely on any documents at the hearing, and that he did not ask the Tribunal to take oral evidence from any other witness. On 24 April 2024, the applicant attended a hearing before the Tribunal and gave evidence in support of his claims, assisted by an Indonesian interpreter.
On 8 May 2024, the Tribunal affirmed the delegate’s decision not to grant the applicant the protection visa. The Tribunal summarised the claims that were made by the applicant in the visa application. That is, in a general sense, relating to what he described as the economy issue, the lack of jobs, and being unable to support himself and his family in Indonesia. The Tribunal noted that no documents were provided in support of the claims, but it considered the applicant’s evidence at the hearing to be given in a forthright manner.
The Tribunal noted that the applicant was upfront about being motivated to come to Australia in 2017 so that he could earn money and, when he applied for a protection visa, he wanted what he called a proper working visa. The applicant said that he had not read the visa application that he submitted, that it was prepared by someone else, and that he simply signed it. He lodged the application after speaking with friends he made in Australia at a farm where he had been working.
In his evidence at the hearing, the applicant developed his claims to fear harm. He set out a history that he left his hometown of Banyuwangi in September 2017 with a list of potential employment contacts in Australia, having spent the several preceding years working in various, low paid manual labour jobs in and around his hometown and in Bali. The applicant has been married twice. He has a son from his second marriage who was nine years old at the time of the Tribunal hearing. He provides financial support to his son, who lives with his maternal grandparents in the hometown of Banyuwangi. The applicant told the Tribunal that if he is required to return to Indonesia, he would go back to the hometown of Banyuwangi.
The applicant also gave evidence to the Tribunal about a debt that had originated in 2002 or 2003, which he claimed was a persistent problem for him when he left Indonesia in 2017 and which motivated him to come to Australia. He also claimed that the debt remains an issue for him in 2024.
The Tribunal considered that the evidence given by the applicant about the debt was convoluted and somewhat unclear. However, it set out the claims and a summary of the essence of the applicant’s evidence about the debt. This includes that in 2002 or 2003, he approached a friend to help borrow money to buy a boat for a small business. He wanted to rent the boat to fishermen. The applicant’s friend took out a loan from a lender or a person who is loosely described as a bank, and the applicant put up his motorcycle as collateral for the loan. The loan proceeded.
The applicant received the money that he wanted, and he purchased the boat. However, the applicant claimed that his friend borrowed more money than he knew about, but did not make any repayments. The lender or as I say, the loosely described bank, pursued the applicant for the money. The applicant sold the boat and paid back the lender the amount that he thought had been borrowed. However, that was only a portion of a larger loan.
A representative from the lender visited the applicant’s house, demanded more money, and warned him that they wanted the remainder of the loan paid plus interest, and they would repossess his assets. The applicant claimed that several people who the friend also involved in the loan transaction, unbeknownst to him, had their motorcycles repossessed by the lender, but the applicant did not have his motorcycle taken away from him because he ran away. Since these events, the applicant has not made any further payments to the lender in relation to the debt, notwithstanding the demands that were made on him, and he has not had any items taken from him by the lender.
The applicant said that the debt was relevant to his decision to travel to Australia in 2017, as the bank was still looking for him and reminding him of his obligation to repay the money. The applicant said he continued to be worried that the lender would repossess his assets, and he went into hiding for three months in 2017 before coming to Australia because of the situation.
The Tribunal accepted that the applicant was involved, albeit inadvertently, in a fraudulent loan transaction in 2002 or 2003 through a friend who he had approached to help him borrow money for a legitimate purpose. The Tribunal also accepted that when the friend defaulted on the loan, the creditor asked the applicant amongst several others to meet the repayments, but the applicant only paid back what he understood that he had been loaned. He could not pay back any more and, in any event, he said that he preferred that his friend pay that money back rather than himself. The Tribunal accepted these matters, but it did not accept the applicant’s evidence that the debt was still an issue for him in 2017, and it did not accept that he went into hiding for three months as he had claimed.
The Tribunal formed the impression that the applicant is ordinarily an honest person, but it did not consider that his evidence about the debt owed to the bank as still existing in 2017 and being a persistent issue for him was truthful. The Tribunal considered that it was implausible that the creditor was still chasing him for the repayments after so many years despite him not having signed any formal documentation as the legal debtor in the first place and in circumstances where no steps had been taken to repossess any of his assets after he failed to meet earlier demands and they knew where he lived. Because the Tribunal did not believe the applicant on these matters and did not accept his evidence, the Tribunal found that he is not eligible for a protection visa.
Having found this, the Tribunal went on to consider the applicant’s fears of returning to Indonesia because of the anticipation that he will experience financial hardship generally. The Tribunal accepted that the applicant will be generally financially worse off in Indonesia than in Australia, but it found that the financial harm that he claimed to fear related to general economic issues in Indonesia rather than being linked to any one or more of the reasons set out in section 5J(1)(a) of the Migration Act 1958. For this reason, the Tribunal found that the applicant did not meet the definition in the Act of a refugee.
The Tribunal also found that there was no evidence that the economic circumstances which the applicant was concerned about will amount to serious harm or systemic and discriminatory conduct as required by section 5J(4)(b) and (c). The applicant will resume living in his hometown with his parents if he returns to Indonesia and even though he is concerned that he will not earn more than what he needs to cover the cost of living, on his own evidence, he will not face such hardship that his capacity to subsist is threatened.
The Tribunal also considered the claims made by the applicant about his health issues, having given evidence that he has some respiratory problems, possibly caused by smoking, that he wanted to resolve in Australia. He said that he needs to use an inhaler. He also said that he has a cataract in his eye which will require an operation, all of which would require funds. The Tribunal asked the applicant about his ongoing medical treatment needs, and he said that if he feels unwell, he usually purchases an inhaler. The Tribunal considered the applicant’s claim to fear that he will be unable to pay for treatment required for his health conditions if he returns to Indonesia. The Tribunal accepted that he is a member of a particular social group by reason of his health issues and that he may experience a form of harm if he cannot access appropriate medical assistance.
However, the Tribunal found that any such harm would not result from systematic conduct or involve the applicant being discriminated against by reason of his membership of a particular social group. The Tribunal found that the potential hardship or harm that the applicant faces by reason of his health status and financial issues are specific to his personal circumstances and, for these reasons, the Tribunal found that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in the Act. The Tribunal therefore found that the applicant is not a person in respect of whom Australia owes protection obligations under section 36(2)(a) of the Act.
The Tribunal went on to consider whether the applicant is owed complementary protection under section 36(2)(aa) of the Act. The Tribunal found that the applicant’s fear of financial hardship does not involve an overt act or omission by anyone or anything intentionally afflicted upon him. His concerns about his potential earnings in Indonesia and his inability to save money do not fall within the kinds of significant harm set out by the Act for the purposes of complementary protection. The Tribunal also noted that the circumstances of the Indonesian economy affect the population generally as a whole and are not matters that are personal to the applicant.
The Tribunal went on to note that the applicant’s concerns about his health and his potential inability to access medical treatment do not amount to any type of significant harm set out in section 36(2A) and also do not involve any element of intention. The Tribunal therefore found that it was not satisfied that there is a real risk that the applicant will suffer significant harm if he returns to Indonesia and, in these circumstances, the Tribunal found that the applicant is not entitled to complementary protection under the Act.
On 8 June 2024, the applicant applied for judicial review of the Tribunal’s decision in this Court. There are five grounds of review pleaded, and the applicant has been self-represented throughout the proceedings.
As he was not legally represented, I am mindful of the remarks of Colvin J in DQQ17 v Minister for Immigration and Border Protection[1] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2]. The consequences of failing to particularise a ground depend on the circumstances. It will rarely be appropriate to dismiss an appeal or a review in a migration case for lack of particularisation where the applicant applies for relief arising out of a protection visa application, and they are self-represented. Ordinarily, and particularly in these circumstances, it is appropriate for the person to be given an opportunity to explain orally the matters that they say go to the grounds of review.
[1] [2018] FCA 784.
[2] BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384.
This is also appropriate because of the language barrier, and the fact that the applicant did not file and serve any written submissions, amended application or additional evidence in accordance with the orders made by the registrar on 29 August 2024. With all that in mind, I gave the applicant an opportunity to expand upon the grounds of review, including to give particulars to help me understand the errors that I was being asked to consider. I also explained to the applicant the limitations on the Court’s jurisdiction, that it is not permitted to conduct a review of the merits of the Tribunal’s decision, and that it did not have the power to grant the applicant a visa. I set out for the applicant some of the more commonly recognised categories of jurisdictional error and explained to him that in order to be entitled to the relief he is seeking, he must establish that the Tribunal’s decision is affected by jurisdictional error.
In overview I told the applicant that jurisdictional error is made out if the Tribunal exceeds the limits of the decision-making authority that is conferred on it by the statute. The error must also be material in the sense that it could realistically have deprived the applicant of a successful outcome.[3] When I gave the applicant the opportunity to break down and further particularise his grounds of review, he explained to me that there was one main reason that he is not ready to return to Indonesia. He said that he still has so much debt in Indonesia and loves it so much in Australia.
[3] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3.
In general terms, an applicant has the onus of establishing jurisdictional error. However, I have endeavoured to assess the recognised categories of jurisdictional error that are apparent in the grounds of review and consider them based upon the materials that I have and the remarks that the applicant has made to me. I set out my assessment as follows.
Grounds 1 and 2
Grounds 1 and 2 assert error that the Tribunal misconstrued the risk and fear of significant harm to the applicant upon his return to Indonesia as a result of financial hardship and his debts with the bank.
The Tribunal correctly set out that a non-citizen will suffer significant harm in accordance with section 36(2)(a) in the reasons for decision: see paragraphs 15 and 16. The Tribunal also set out the definition of significant harm in its analysis of the question of whether the applicant was entitled to complementary protection at paragraph 53. Having raised the issue of the debt with the bank in 2002 or 2003 for the first time at the hearing, the Tribunal questioned the applicant in some detail to ascertain the complete facts and circumstances that related to that matter. Having then done so, the Tribunal critically assessed the applicant’s claims. In accepting the applicant’s claims about the loan and the debt generally, the Tribunal was not satisfied that the applicant’s evidence that he was being actively pursued by the creditor 15 years later was truthful.
The finding that it was not satisfied that there is a real chance that the applicant would be harmed in Indonesia by reason of financial hardship or debts or for any other reason was open to the Tribunal on the evidence. I consider that the Tribunal explained its reasoning, and there is nothing illogical or legally unreasonable in the analysis. To the extent that grounds 1 and 2 take issue with factual findings that the Tribunal made, the degree of weight to be given to evidence is a question for the Tribunal, and an applicant must show more than they disagree with the Tribunal’s conclusions to make out jurisdictional error. I do not consider that jurisdictional error is made out in grounds 1 or 2.
Ground 3
Ground 3 alleges that the Tribunal had no jurisdiction to make the decision it did because its reasonable satisfaction was not arrived at in accordance with the Act.
The Tribunal’s statutory jurisdiction to undertake the review of the delegate’s decision is established in the Act. Section 414 provides that if a valid application for a review is made, then the Tribunal must review the decision, and under section 415 of the Act, the Tribunal has jurisdiction to affirm the decision under review amongst other things.
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[4] the Full Court restated the principles that the characterisation of a decision or a state of satisfaction as legally unreasonable because of illogicality or irrationality is not easily made out when it was said:
The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration & Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at 220 [26]; SZMDS 240 CLR at 647–650 [130]–[135]; CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; 253 FCR 496 at 517 –518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at 88 [142].
The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZDMS 240 CLR at 648 [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.
Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20 –21 [38]; Re Minister for Immigration &Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.[5]
[4] [2022] FCAFC 3.
[5] Paragraphs [33] to [35].
The findings made by the Tribunal were, in my view, based on evidence given by the applicant at the hearing including responses to the Tribunal’s questions putting the applicant on notice as it did, that it found aspects of his version difficult to believe.
The findings made by the Tribunal were open on the evidence that was before it and, equally, the findings that the Tribunal made about the applicant’s health problems and the consideration of those issues were also open to be made on the evidence that was given.
I do not consider that there are any findings made by the Tribunal that were legally unreasonable, illogical or irrational, and I do not consider that ground 3 has been made out.
Ground 4
Ground 4 complains that the Tribunal failed to investigate the applicant’s claims, especially the grounds of persecution in Indonesia.
It is an applicant’s responsibility to advance evidence and arguments in support of their claims. The Tribunal has no general duty to enquire.[6] In EYQ17 v Minister for Immigration, Citizenship and Multicultural Affairs,[7] Judge Forbes summarised the principles as:
[6] Abebe v Commonwealth of Australia [1999] HCA 14.
[7] [2024] FedCFamC2G 105.
[51] The Tribunal operates in an inquisitorial, rather than adversarial, fashion and it has the power in conducting a review to get any information which it considers relevant. It may invite a person to provide information. It is to have regard to any information so obtained in making its decision.
[52] However, the Tribunal is under no general duty to use, or to consider using, its investigative powers to obtain information relevant to the review. Although the Act confers on the Tribunal wide discretionary powers to investigate an applicant’s claims, the legislation does not impose on the Tribunal a general duty to make inquiries in addition to the information provided to it by the applicant.
[53] It is well-established that a decision-maker has no duty to make his or her own inquiries in order to make out an applicant’s case .
[54] However, in Minister for Immigration & Citizenship v Le (2007) 164 FCR 151 at [60] , Kenny J observed (citations omitted):
[…] On the one hand, the authorities establish that the Tribunal has no general obligation to initiate enquiries or to make out an applicant’s case for him or her. These authorities stretch back over the life of the Tribunal[…] On the other hand, there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal’s failure to inquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable in the sense used in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 .
[55] The circumstances in which a Tribunal decision will be set aside on the grounds of a failure to inquire are “ a confined category of case ”.
[56] As to the circumstances where a failure to inquire might give rise to jurisdictional error, the High Court held in Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 ( SZIAI ) at [25] that:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a duty to inquire, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction . It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case[…]” (emphasis added)
[57] Further, in SZIAI Heydon J observed at [52]:
The question of whether the Tribunal should have made further inquiries must be assessed bearing in mind that it was for the respondent to demonstrate that his claims were genuine; it was not for the Tribunal to try to achieve a demonstration that he had failed to achieve.
(citations omitted)
The Tribunal’s questions of the applicant at the hearing elicited the detail of his narrative in a way that enabled him to expand upon and clarify his claims and, having then identified the claims, the Tribunal went on to consider and assess them.
I do not consider there is any merit in ground 4.
Ground 5
Ground 5 asserts error by the Tribunal in failing to comply with sections 424A and 424AA of the Act. Notwithstanding the lack of particulars in this ground and the applicant’s responses to questions about it, I have considered this ground as best I can.
Sections 424A(3)(ba) and (b) of the Act exclude the application of s 424A to certain information. Country information, the applicant’s written claims, and his oral evidence in the Tribunal, are all encapsulated within this exclusion.
As I have pointed out, the Tribunal decision was based upon the applicant’s written claims, his evidence elicited by the Tribunal at the hearing, which really went to the substance of his claims, and country information.
I do not consider there is any merit in ground 5.
Other matters
I also asked the applicant to expand generally on what might be considered a general denial of procedural fairness allegation - a ground that he spoke to me about at the hearing – and he told me effectively six things: firstly, that he still wants to stay in Australia; secondly, that documents sent by the Tribunal to him were not translated; thirdly, that the debt was not from the bank but from an individual – that there was no receipt – it was a handshake; fourthly, that he is looking for a work visa, not a protection visa; fifthly, that he has no money to pay for a lawyer; and, lastly, that the applicant is comfortable in Australia, and he enjoys it here.
The applicant explained some difficulty grappling with the legal concepts of the proceeding but, ultimately, he was assisted by an interpreter both at the Tribunal hearing and in this Court. The Tribunal’s correspondence to the applicant was reasonably limited and, in March 2024, the applicant emailed the Tribunal providing his new mobile number, sent in a response to the hearing invitation.
The Tribunal assessed there were no communication issues and the applicant did not raise any issues regarding document translation at the hearing before the Tribunal. I do not consider there are any procedural fairness deficiencies evident in the materials, and I do not consider that there is any jurisdictional error evident in the Tribunal’s decision or reasons.
In these circumstances, I will dismiss the application.
Counsel for the Minister has applied for an order that the applicant pay costs fixed in the sum of $6,500. The applicant said he does not have any money. I explained to the applicant that capacity to pay is a different consideration to whether an order for costs should be made at all after the determination of an application.
In circumstances where the application has been dismissed, I will order the applicant pay the Minister’s costs fixed in the sum of $6,500. The sum is within the amount specified in Sch 2, Pt 2, Div 1 of the Federal Circuit and Family Court (Division 2) (General Federal Law) Rules 2021 and I consider it is fair and reasonable.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Liveris. Associate:
Dated: 17 February 2025
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