DSI18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 148
•12 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DSI18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 148
File number: MLG 2080 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 12 February 2025 Catchwords: MIGRATION – Protection Visa – Adjournment to seek legal advice refused because the Applicant had ample time before trial to seek legal advice – Where Applicant claimed to fear harm because of past domestic abuse – Where it was open to Tribunal to reject the claim because the Applicant did not have ongoing concerns of domestic abuse and because the Applicant said the primary reason that she came to Australia was for economic reasons – Where the Tribunal found effective protection measures were available to the Applicant in the receiving country – Where the Applicant did not claim serious harm because of significant economic hardship that threatens her capacity to subsist – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 5J, 36 Cases cited: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62
Mehmood v Minister for Immigration and Multicultural Affairs [2000] FCA 1799
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11
Minister for Immigration and Multicultural Affairs v Khawar (2002) 201 CLR 1; [2002] HCA 14
New South Wales v Canellis (1994) 181 CLR 309 at 330–331; [1994] HCA 51
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CR 582; [2022] HCA 17
SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725
SZRQU v Minister for Immigration and Citizenship [2012] FCA 1234
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
Division: Division 2 General Federal Law Number of paragraphs: 33 Date of last submissions: 30 January 2025 Date of hearing: 30 January 2025 Place: Melbourne Applicant: In person Solicitor for the Respondents: Ms Liddy of Sparke Helmore Solicitor for the Respondents: Submitting appearance, save as to costs ORDERS
MLG 2080 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DSI18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
25 FEBRURY 2025
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to Minister for Immigration and Multicultural Affairs.
2.The application is dismissed.
3.The Applicant pay the First Respondent’s costs fixed in the sum of $5,000.
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).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
INTRODUCTION
The Applicant is a Malaysian citizen. She seeks a protection visa. The Tribunal refused to grant the visa. The Applicant seeks judicial review.
The Tribunal summarised her claims in the following way (Reasons, [18]):
•She claims that she left Malaysia because of a personal problem with her ex-boyfriend.
•She claims her ex-boyfriend is a drug addict and always threatens to hurt her.
•She claims that she "was worried if she made a police report, he will act out of control with acid, beating her or raping her."
•She claims that she may be kidnapped, raped or murdered and will not be safe if she returns to Malaysia.
•She claims the authorities will not protect her because her ex-boyfriend 'has family who are involved in the police field.
The Applicant has not proved any jurisdictional error. My reasons follow.
SHOULD THE HEARING BE ADJOURNED?
At the outset of the hearing the Applicant made an oral application for an adjournment. The First Respondent opposed the adjournment application.
The Applicant submitted that the reason for her adjournment application was so that she could pursue a legal aid application. She indicated that she had applied for legal aid 14 days before the hearing. She indicated that she had been informed by an unnamed person that she should not make a legal aid application any earlier than 14 days before the hearing. She was unable to provide any evidence of her legal aid application.
I refused her oral adjournment application. I said that I would give my reasons as part of my reasons for judgment.
My discretion as to whether to grant an adjournment must be exercised in the interests of justice.
Since she brought her case 6½ years ago, the Applicant has had ample time to seek legal assistance to enable the hearing to proceed as scheduled. It is notorious that there is a backlog of migration judicial review applications awaiting hearing in this court. The Applicant provided no evidence to support the assertion that she had been told not to apply for legal aid until 14 days before trial. She provided no indication as to when any legal aid application might be determined. Although the opportunity to obtain legal representation may be relevant to the grant of an adjournment in a civil case, procedural fairness does not require legal representation (SZRQU v Minister for Immigration and Citizenship [2012] FCA 1234, [24]; New South Wales v Canellis (1994) 181 CLR 309 at 330–331; [1994] HCA 51). An adjournment would add another case to the backlog. Under the overarching purpose of the civil practice and procedure provisions, I must conduct a proceeding so as to facilitate a just resolution according to law “as quickly, inexpensively and efficiently as possible”. Because the Applicant has had ample time to organise legal assistance and because of the overarching civil procedure obligations, I refused the Applicant’s adjournment application.
GROUND 1: DID THE TRIBUNAL MAKE AN ERROR IN NOT CONSIDERING WHETHER THE APPLICANT FACED HARM IN MALAYSIA?
There is one ground of the application that “the Tribunal made an error in that it did not consider whether I face harm in Malaysia”.
Should the application be dismissed because of an absence of meaningful particulars?
The Applicant has provided no particulars of that ground. Even though the court made orders that she do so, she has not filed any written submissions. I accept the Minister’s submission that the “failure to particularise a ground of review is sufficient basis for it to be dismissed (WZATH v Minister for Immigration and Border Protection [2014] FCCA 612; appeal dismissed in WZATH v Minister for Immigration and Border Protection [2014] FCA 969).
I have nonetheless considered this ground as best I can in the absence of particulars.
Did the Tribunal fail to engage with the Applicant’s claim as to past domestic abuse?
As the High Court plurality said in Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CR 582; [2022] HCA 17 at [24] a decision-maker must “read, identify, understand and evaluate” each of the arguments and their component integers. The decision-maker must “bring their mind to bear upon the facts stated in them and the arguments or opinions put forward.” It is a matter for the decision-maker as to what “weight or persuasive quality” is thought appropriate to attribute the arguments put forward.
The Tribunal said the following at [61] of its reasons:
The Tribunal accepts that the applicant had a relationship for a period of time with her now ex-boyfriend she identified to the Tribunal as [name omitted] and that on an occasion he treated her badly and threatened her with physical harm and made her feel concerned for her life and well-being.
In Minister for Immigration and Multicultural Affairs v Khawar (2002) 201 CLR 1; [2002] HCA 14 a High Court majority held that a fear of domestic abuse, coupled with a discriminatory absence of state protection, could anchor a well-founded fear of persecution within the meaning of the Refugees Convention. The Tribunal in this case did not rule out that a fear of domestic violence could underpin a finding that Australia owed the Applicant protection obligations.
In this case, the Tribunal did not accept that the Applicant had a well-founded fear of future domestic abuse or a recurrence of the domestic abuse she had suffered in the past. The Tribunal said at [65]:
For the reasons given in paragraphs [60] to [64] above, the Tribunal does not accept that the applicant has any further concerns with her now ex-boyfriend as she had claimed, nor that there is a real chance that she will face persecution involving serious harm because of past relationship with her ex-boyfriend if she returns to Malaysia.
In its reasons at [60]–[64] (the parts of the reasons the Tribunal cross-referenced in [65] above) the Tribunal had said that the country information suggested that there were a number of available avenues (in Malaysia) for victims of domestic violence to report the problem and receive support. The Tribunal found that a victim was not confined to the option of reporting domestic violence to the local police ([63]). Further, the Tribunal found that “state protection was available to the applicant” ([63]).
As to her “ex-boyfriend”, the Tribunal noted that she and her ex-boyfriend were not in contact and that the Applicant said that she did not have social media accounts that would enable her to locate him ([64]). Also, earlier in the reasons, the Tribunal noted that the Applicant had said that “she had not seen her boyfriend for at least 2 years and did not remember when she last saw him” ([31]).
The Tribunal noted that it had credibility concerns about the Applicant’s claims. The Tribunal found that the Applicant had “enhanced her claim” to gain the right to work in Australia (Reasons, [64]). Finally, the Tribunal found at [64] that the Applicant:
admitted that her primary fear in returning to Malaysia was not her ex-boyfriend locating her and assaulting her again but the state of the Malaysian economy and her ability to find work to assist her family.
The Tribunal “brought its mind to bear”, as it had to do (Plaintiff M1), on the Applicant’s claim that she had a well-founded fear of persecution should she return to Malaysia because of past domestic abuse recurring in the future. It did not accept her claim.
Was the Tribunal’s decision that the Applicant did not have a well-founded fear of persecution because of past domestic abuse by her ex-boyfriend should she return to Malaysia plainly unjust, arbitrary, capricious or lacking common sense?
The Tribunal had not only to bring its mind to bear upon the claim that the Applicant had a well-founded fear of persecution because of the recurrence of past domestic abuse by her ex-boyfriend should she return to Malaysia, but it had to reach its conclusion in a way which was not unreasonable in the legal sense. As Allsop CJ said in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [10] one way in which a decision may be characterised as legally unreasonable is if it lacks an “evident and intelligible justification” or if it is “plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power” (Stretton, [11]).
Further, I note that a “well-founded” fear has both a “subjective” aspect and an “objective” aspect (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62, [12], [16], [21]).
The Applicant has not proved that the Tribunal’s conclusion that she did not have a “well-founded fear of persecution” was unreasonable in the legal sense because it lacked an evident and intelligible justification or because it was plainly unjust, arbitrary, capricious, or lacking common sense.
In particular, the Tribunal was entitled to take into account, as it did, that the Applicant had said that her primary fear was not her ex-boyfriend but the state of the Malaysian economy. In that sense she did not have a “subjective” fear of persecution. In terms of the fear having a basis in objective fact, the Applicant acknowledged that there had been a gap of time since she had seen her ex-boyfriend and she had had suffered domestic abuse. The Applicant accepted that there was no ready way for her ex-boyfriend to locate her in Malaysia. Further, as to the extent of her fear, the Tribunal was entitled to take it into account that she had not taken any action while in Malaysia as to domestic abuse she had suffered. These factors meant that the Tribunal’s conclusion that the Applicant did not have a well-founded fear of persecution cannot be characterised as unreasonable in the legal sense.
Were effective protection measures available to the Applicant in Malaysia?
Further, under s. 5J(2) a person does not have a well-founded fear of persecution if effective protection measures are available to the person in the receiving country. Under the complementary protection regime, there is taken not to be a real risk if the “non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm under s. 36(2B)(b).
The Tribunal concluded that “state protection was available to the applicant” (Reasons, [63]) even if “the police may not be able to guarantee the applicant safety at all times”. The Tribunal was entitled to refer to the country information that recorded that the Royal Malaysian Police was a “professional and effective police force” ([53]) “despite elements of the police in Malaysia being susceptible to corruption” ([63]). As to protection meeting the minimum required level of effective protection, the Tribunal was entitled to refer to, as it did, to the decision of von Doussa J in Mehmood v Minister for Immigration and Multicultural Affairs [2000] FCA 1799 at [15] that “absolute guarantees against harm are impossible in fact and are not required in law to negative a real chance of persecution”.
The Tribunal’s conclusion that the Applicant did not have a well-founded fear of persecution because her primary fear was economic, she had no contact with her ex-boyfriend and effective protection measures were available to the Applicant if she returned to Malaysia had an “evident and intelligible” justification.
Did the Applicant make a claim that she had well-founded fear of “serious harm” because of significant economic hardship that threatened her capacity to subsist if she returned to Malaysia?
The “well-founded fear of persecution” under s. 5J(1) must involve “serious harm” under s. 5J(4). Section 5J(5) sets out “instances of serious harm” and includes one instance under s. 5J(5)(d) as:
significant economic hardship that threatens the person’s capacity to subsist
The Tribunal had to consider claims which were the subject of substantial clearly articulated argument or which clearly emerged from the materials (AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89, [18]).
The Applicant did not make a claim that she had a well-founded fear of “serious harm” because of “significant economic hardship that threatens … [her] capacity to subsist.”
It is accurate to note that the Applicant had economic concerns about returning to Malaysia. The Tribunal set out these concerns at [38] of the reasons and said as follows:
The Tribunal was told that the applicant would have concerns about'...work:..' In her opinion, the situation in Malaysia is' ... very different... ' Opportunities for employment are '... very low.. .' and it will be very hard (in the applicant's opinion)'...to survive...' What the applicant 'would earn in Malaysia would be' ...just enough to live on.. .' and because of this '... the applicant could not be able to support my parents.. .'
The Applicant’s claims did not rise to the level of a claim that, if she returned to Malaysia, she feared economic hardship which threatened her capacity to subsist. Her claims about her economic concerns did not constitute a claim of serious harm of the type instanced In SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725 where Greenwood J said at [23]: “the level of threat must be such as to challenge the ability of the individual to continue to exist or remain in being”.
Although the Applicant told the Tribunal that she had economic concerns about returning to Malaysia, those concerns are properly characterised as concerns about a lack of economic opportunity in Malaysia relative to economic opportunities available to her in Australia. A claim about a relative lack of economic opportunity is different in character to a claim of economic hardship that would threaten her capacity to subsist. The Applicant accepted that she could earn enough to live in Malaysia. She was concerned, however, that she could not earn enough to support her parents. Economic challenges at that level are not a threat to subsistence as instanced in s. 5J(5)(d).
CONCLUSION
I will dismiss the application. I will order that the Applicant pay the First Respondent’s costs fixed in the sum of $5000, the amount that the First Respondent sought and an amount that is less than scale.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 12 February 2025
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