DRV16 v Minister for Immigration

[2018] FCCA 873

FEDERAL CIRCUIT COURT OF AUSTRALIA

DRV16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 873

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal erred by failing to substantiate its findings – the Tribunal erred by failing to consider violence of other risks of harm – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2)

Cases cited:

Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347

First Applicant: DRV16

Second Applicant: DRW16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3421 of 2016

Judgment of: Judge Smith

Hearing date: 7 March 2018

Date of Last Submission: 7 March 2018

Delivered at: Sydney

Delivered on: 7 March 2018

REPRESENTATION

The first applicant appeared in person.

No appearance by or for the second applicant.

Solicitors for the Respondents: Mr A Keevers, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3421 of 2016

DRV16

First Applicant

DRW16

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for a judicial review of a decision of the Administrative Appeals Tribunal dated 9 November 2016. The Tribunal affirmed a decision of a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa on 26 May 2015. The applicants are citizens of Malaysia who arrived in Australia on 8 December 2012. The first applicant (applicant) lodged a protection visa application on 6 May 2014.

2. The claims made by the applicant in support of that application were summarised by the Tribunal accurately at [7] of its reasons, which I set out below:

   7.In her protection visa application, Ms Sii claimed she grew up and married in Bintalu in the state of Sarawak. She claimed her husband developed a drug addiction and borrowed money from a loan shark to pay for his habit. She claimed that when her husband could not repay the interest, she made some payments but could not keep up with the loan shark’s demand. She claimed the loan sharks used to assault her and threaten to force her into some kind of work for them if she could not keep up repayments. She claimed the police, for the reason that they viewed the matter as “trivial”, disregarded her complaints about threats from the loan sharks. She claimed her marriage failed and that she came to Australia to escape from her home.

3. On 26 May 2015, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Refugee Review Tribunal (RRT) for review of that decision.  On 1 July 2015, the Administrative Appeals Tribunal took on the powers, duties and the functions of the RRT and it went on to complete the review of the delegate’s decision.  The applicant attended a hearing conducted by the Tribunal on 8 November 2016 and, on the following day, the Tribunal made its decision to affirm the delegate’s decision.

Tribunal’s decision

1. The Tribunal effectively rejected the applicant’s claims firstly because the claims about the loan shark were entirely unsupported, and secondly, because what it viewed as the applicant’s lack of concern for her children being exposed to possible risk.  The Tribunal also found that there was no drug problem or no loan shark debt problem otherwise affecting, or potentially affecting, the applicant’s family and it was not satisfied there was a real chance that the applicant’s husband would abuse her in the reasonable foreseeable future. 

2. The Tribunal also considered that those claims had no Convention-related basis, by which it may be understood to mean that the harm feared by the applicant was not attributable to one of the reasons articulated in Article 1A(2) of the Convention[1] relating to the Status of Refugees.

   [1] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967).

3. For those reasons, the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa and so affirmed the delegate’s decision.

4. There are two grounds in the application for judicial review.  The applicant appeared unrepresented today and added nothing to those grounds and has not filed any written submissions.  Therefore, it is incumbent upon the Court to do the best it can to understand what those grounds mean and to assess whether or not they reveal any jurisdictional error in the Tribunal’s decision. 

Consideration

Ground 1

1. The first ground is that the “Tribunal refuses my claims without substantiated grounds”. This ground is particularised with the statement that:

   Tribunal believes my situation has stabilized because my children dine with my husband. 

   This fact does not prove that my husband’s debts owed to loan shark has been paid off.

   (Without alteration)

2. There are two ways of understanding that ground.  The first is that there was no rational basis for the Tribunal’s conclusion that the applicant’s husband’s debts had been paid off.  The first difficulty, however, with that way of seeing the ground, is that the Tribunal was not satisfied that there was ever any debt.  There were two reasons given for that finding, one of which was that the claims about the loan shark were not supported by any corroborative evidence. 

3. Secondly, that the applicant had, in effect, left her children behind in Malaysia facing what could possibly have been significant risk. The Tribunal did not accept that, had that risk been a real one, the applicant would have so left her children. 

4. The Tribunal does not have to have rebutting evidence in order not to be satisfied that a particular claim is made out: see for example, Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347. With that in mind, the reasons given by the Tribunal at [11] did provide a rational basis for its finding that the loan shark story was not true. For that reason, on that understanding of the ground, the ground should be rejected.

5. The second way of understanding the ground is similar to the first:  namely, that the Tribunal did not, itself, have any rebutting evidence against what the applicant claimed.  However, even understood this way the ground would fail for the reason that I have explained:  namely, that the Tribunal does not have to have rebutting evidence, in order not to be satisfied of a particular factual claim.

Ground 2

1. The second ground in the application is that:

   Tribunal does not fully consider violence and other risks from my husband and loan sharks I will face if I return to Malaysia.

2. I understand this ground to mean that the applicant asserts here, as she did before the Tribunal, that she faced risk of violence and other harm from her husband and loan sharks if she were to return to Malaysia.  However, that ground does not raise any possible jurisdictional error.  Rather, it raises what is often referred to as a merits review. 

3. Merits review in these circumstances is a shorthand way of saying that the applicant asks the Court to make a finding of fact different to that made by the Tribunal, where the fact is relevant to, but not necessary for the exercise of its jurisdiction. That is not the Court’s role. Put in perhaps, more simple terms, the legislature in Australia has left it entirely up to the Tribunal what findings of fact it makes. It is no function of this Court to interfere with the Tribunal’s decision even if it thinks that those findings were wrong, so long as there is a logical basis for those findings in the material before the Tribunal and inferences drawn from that material.

4. I am not satisfied in this case that the Tribunal’s findings were not open to it, in the sense that there was a logical basis for them.  For that reason, the second ground must fail. 

Conclusion

1. The applicant has not established that there is any jurisdictional error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       13 April 2018