DUU18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 620
•18 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DUU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 620
File number: MLG 2153 of 2018 Judgment of: JUDGE BINGHAM Date of judgment: 18 July 2024 Catchwords: MIGRATION LAW – judicial review of a decision of the Administrative Appeals Tribunal to not grant the Applicant a Protection (Subclass 866) visa – criteria in s 36(2) of the Migration Act 1958 (Cth) – protection claims relating to loan sharks – adverse credibility findings – reasons demonstrate proper consideration of claims – no jurisdictional error identified or apparent – application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 5 5J, 5K-5LA, 36, 425, 474 and 476 Cases cited: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496
Craig v South Australia (1995) 184 CLR 163
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 58 ALD 609
Naisauvou v Minister for Immigration & Multicultural Affairs [1999] FCA 86; 89 FCR 435
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Prasad v Minister for Immigration and Ethnic Affairs [1985] 6 FCR 155]; (1985) 65 ALR 549
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982; 179 ALR 425
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
Vakuata v Kelly [1989] HCA 44; 167 CLR 568
Division: Division 2 General Federal Law Number of paragraphs: 55 Date of last submissions: 3 July 2024 Date of hearing: 3 July 2024 Place: Melbourne The Applicant: Appeared in person Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2153 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DUU18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BINGHAM
DATE OF ORDER:
18 JULY 2024
THE COURT ORDERS THAT:
1.The Application filed on 24 July 2018 be dismissed.
2.The Applicant pay the First Respondent’s costs of the proceedings fixed in the sum of $6,000.00
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 BINGHAM:
The Applicant filed an application on 24 July 2018 seeking judicial review, pursuant to section 476 of the Migration Act 1958 (Cth) (the Migration Act), of the decision of the Administrative Appeals Tribunal (the Tribunal) made on 26 June 2018 where the Tribunal affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Protection (Subclass 866) visa (the Visa). The Applicant applied for the Visa on the basis of protection claims relating to unpaid debts due to an unlicensed money lenders (Loan Sharks). The Tribunal did not believe the Applicant’s claims and was consequently not satisfied that the that there was a real chance that the Applicant would suffer serious harm nor be at a real risk that he would suffer significant harm were he returned to Malaysia.[1]
[1] Migration Act 1958 (Cth) sections 36(2)(a) and (aa).
BACKGROUND
The Applicant is a citizen of Malaysia.
On 10 October 2016 the Applicant arrived in Australia as a holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa.
On 1 November 2016 the Applicant applied for the Visa.
The Applicant sought the Visa based on the following protection claims (the Protection Claims):
(a)The Applicant borrowed money from Loan Sharks on behalf of his mother which he was unable to repay.
(b)The Loan Sharks would harm him if he were to return to Malaysia.
(c)The authorities could not protect him nor could he relocate within Malaysia because his problem was ‘socio-economic’.
(d)The Applicant would suffer economic hardship were he returned to Malaysia on account of government maladministration.
On 21 March 2017 the Delegate refused to grant the Applicant the Visa (Delegate’s Decision). The Delegate found that the Applicant is not a person of whom Australia has protection obligations as set out in ss 36(2)(a) or (aa) of the Migration Act. The Delegate was not satisfied that the Applicant faced a real chance of serious harm nor serious risk for one or more of the reasons found in s 5J(1)(a) of the Migration Act nor was he a refugee as defined by s 5H(2) and found that there was no evidence to suggest the Malaysian government would fail to provide the Applicant with protection.
On 1 April 2017 the Applicant applied to the Tribunal for review of the Delegate’s Decision.
On 5 April 2017 the Tribunal acknowledged receipt of the application for review by way of a letter which invited the Applicant to provide material or written arguments in support of his application.
On 17 July 2017 the Applicant was invited to attend a hearing in Sydney on 2 August 2017. On 19 July 2017 the Applicant requested that the hearing be rescheduled. The hearing was rescheduled to take place on 7 December 2017 in Melbourne. The Tribunal refused a subsequent request by the Applicant for a further adjournment.
The hearing invitations issued by the Tribunal each invited the Applicant to provide additional information or documents to the Tribunal.
On 7 December 2017 a hearing was held before the Tribunal (Tribunal Hearing). The Applicant attended with assistance of a Malay interpreter.
On 26 June 2017 the Tribunal affirmed the Delegate’s Decision.
THE TRIBUNAL’S DECISION
The Tribunal considered the Protection Claims made by the Applicant and in doing so the Tribunal formed an adverse view of the Applicant’s credibility for the following reasons:
(a)The Applicant was unable to provide sufficient detail about borrowing money from the Loan Sharks. Notably, the events described were said to have occurred relatively recently and were central to his claim.
(b)The Applicant’s evidence about whether he went to the police was unconvincing. The Applicant said the police would not have been able to help, then said the Loan Sharks would create problems for him if he complained to the police. The Applicant later said going to the police had not occurred to him but that the idea occurred to him subsequently. When asked why he did not make a report from Australia, the Applicant said he did not know how and that it was too difficult for his family in Malaysia to do so. Near the end of the Tribunal Hearing the Applicant said shame stopped him making a report.
(c)The Applicant was unable to explain why his written protection claims included a statement that he and his family would suffer discrimination as Indonesian people. The Tribunal was left with doubts about whether the Applicant had in fact authored his own claims.
(d)The Applicant had not provided the Tribunal with a copy of a document he said evidenced his loans and his explanation that he had left it in Malaysia was unsatisfactory in circumstances where his family remained in Malaysia.
The Tribunal found that the Applicant and his family experienced financial pressure and had got themselves into debt otherwise than to Loan Sharks, as such he was not at risk from them. Further, the Tribunal found that the Applicant came to Australia to make money to improve their situation. The Applicant did not pursue the claim that he feared being the subject of economic harm at the Tribunal Hearing. The Tribunal found that the claim of economic harm had no applicability to the Applicant and was included to enhance his claim.
The Tribunal determined that it was not satisfied there was real chance the Applicant would suffer serious harm were he returned to Malaysia and accordingly did not meet s 36(2)(a) of the Migration Act. The Tribunal was not satisfied that there was a real risk the Applicant would suffer significant harm were he returned to Malaysia and therefore he did not meet the criterion in s 36(2)(aa).
PROCEEDINGS BEFORE THE COURT
On 9 April 2024 Orders were made by consent for the Applicant to file written submissions, an amended application with particulars as to the grounds of the application and any additional evidence he sought to rely upon by 23 April 2024. On 30 April 2024, Orders were made to extend the filing date to 10 May 2024. The Applicant has not filed any material in accordance with these Orders. Notation A of the Orders dated 9 April 2024 recorded that: the Applicant advised the Court he had lost the Court Book; an electronic copy of the Court Book would be emailed to him; and that once the Applicant filed an updated notice of address for service then the Minister would post a copy of the Court Book to him. The Applicant did not file an updated notice of address for service. Notation B of the Orders dated 9 April 2024 further recorded that the parties were put on notice that the matter may be listed for hearing as soon as early May 2024.
A Notice of Listing email was sent to the Applicant’s Notice of Address for Service by the Court on 11 June 2024. A further email containing the details of the hearing was sent to the Applicant’s nominated email on 24 June 2024.
At the hearing on 3 July 2024 (Hearing) the Applicant appeared in person and was assisted by a Malay interpreter. The Minister was represented by Mr Plitsch, a solicitor with the Australian Government Solicitor.
At the commencement of the Hearing inquiries were made of the Applicant as to whether he had received a copy of the submissions made on behalf of the Minister filed on 17 May 2024 (Minister’s Submissions) and the Court Book.[2]
[2] Transcript P4:L21-25; P5:L38-39.
The Applicant brought a copy of the Court Book with him and had it on the bar table during the Hearing. Mr Plitsch provided an additional hard copy of the Minister’s Submissions to the Applicant. The Applicant informed the Court that he had seen the submissions before but did not understand what the submissions meant. I asked if the submissions had been interpreted for the Applicant. The Applicant said that they had not and asked if the Minister’s Submissions could be interpreted to him. I stood down while the interpreter interpreted the Minister’s Submissions for the Applicant.[3]
[3] Transcript P9:L6-30.
I advised the Applicant of the Court’s role namely that it could not grant him a visa. The Applicant was advised that the Court’s role was to determine whether an error was made by the Tribunal when making its decision.[4]
[4] Transcript P4:L3-11; P9:L40-45.
Grounds of Review
The Applicant relied on three (3) grounds of review:
1.The Tribunal denied me natural justice by refusing to properly hear my case and accept documentary evidence. (Ground 1)
2.The Tribunal failed to properly consider the threat of harm I faced at the hands of loan sharks in Malaysia. (Ground 2)
3.I am not satisfied that the Tribunal properly considered my case without bias, and an open mind, by refusing to consider evidence tendered about my issues with loan shark, and my reasons for not seeking police assistance because he thought my evidence was 'half-hearted' and 'obfuscatory'. (Ground 3)
In bold. Otherwise as written.
The Applicant relied upon the following documents:
(a)The Application filed 24 July 2018; and
(b)The Affidavit of the Applicant, annexing the Tribunal’s Decision, filed 24 July 2018.
When asked whether there was anything else upon which the Applicant wished to rely he produced an electronic document in Malay (and an alleged English translation) which was undated, did not refer to the Applicant by name and did not have any official markings on it. It was alleged by the Applicant that the document was a court document from Malaysia that showed that he would be arrested if he returned to Malaysia because of the debt. This document had not been provided to the Court or the Minister prior to the Hearing despite Orders being made on 9 April 2024, as amended 30 April 2024, requiring that any additional evidence be filed by the Applicant by 10 May 2024. The document sought to be relied upon by the Applicant was not before the Tribunal.[5] The document was not relevant as it had no probative value to the review of the Tribunal’s Decision. The document was ruled to be inadmissible.[6] I note that even if the document were admissible it could be given little or no weight due to its contents.
[5] Transcript P8:L16-46.
[6] Transcript P15:L5-6.
The Minister relied upon:
(a)The Minister’s Submissions filed 17 May 2024 and
(b)The List of Authorities filed 26 June 2024.
The transcript of the proceedings before the Tribunal was not before the Court.
LEGISLATIVE FRAMEWORK
Sections 5 and 474 of the Migration Act define “a privative clause decision” as meaning a decision of an administrative character made under the Migration Act or regulation or other instrument made under the Migration Act, which includes the granting of a visa. A privative clause decision is final and not subject to judicial review in any Court. A decision affected by jurisdictional error is not a privative clause decision and therefore a person may seek to have the Court review that decision, as a decision affected by jurisdictional error as it is “no decision at all”: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76]. The role of the Court is not to engage in a merits review of a decision but rather to identify whether the decision has been affected by jurisdictional error or not: Craig v South Australia (1995) 184 CLR 163 at 177-180; Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272].
Section 36 of the Migration Act provided the following relevant criteria for protection visas:
36 Protection visas – criteria provided for by this Act
[…]
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; […]
Under s 5J(1) of the Migration Act, a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. In sections 5J(2)-(6) and 5K-LA additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out.
CONSIDERATION
The finding that the Applicant was not credible
The Tribunal formed an adverse view of the Applicant’s credibility which ultimately led to it not being satisfied that the Applicant met the criteria for the Visa. As summarised at [13] to [14] herein, the Tribunal based its view on six (6) factors.
Findings in respect of credibility are fundamentally a matter to be resolved at the level of merits review, which involves the taking and assessment of evidence. In CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [38] the Court made the following statement about the assessment of credibility findings in judicial review:
There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:
(a) failure to afford procedural fairness;
(b) reaching a finding without any logical or probative basis;
(c) unreasonableness; and/or
(d)jurisdictional error as discussed by Flick J in [SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089].
The task of the Court on judicial review is to decide whether the decision under review is affected by any “jurisdictional error”: see Plaintiff S157/2002 v Commonwealthof Australia (2003) 211 CLR 476. Merits review is not within the jurisdiction of this Court: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; 185 CLR 259 at [272]. Put simply the Court can only determine whether the Tribunal made a serious legal mistake and whether the Tribunal must undertake merits review again.
Ground 1 – The Tribunal denied me natural justice by refusing to properly hear my case and accept documentary evidence
The first ground of review in the Application contains two limbs.
Did the Tribunal properly hear the Applicant’s case?
The Minister submitted that the evidence does not provide a basis for a finding that the Tribunal failed to provide the Applicant with a hearing pursuant to s 425 of the Migration Act. The Minister contended that the Tribunal’s Decision demonstrated that the Tribunal closely considered the Applicant’s claims and evidence and concluded that they were not credible. It was further submitted that the Applicant was on notice that his credibility was an issue.
When asked by me what “mistake” the Tribunal made with respect to this ground the Applicant responded that someone other than himself wrote the grounds. He said there was “Covid”. I note that the Tribunal Hearing took place on 7 December 2017. The Covid-19 pandemic was not declared until 2020. In these circumstances the Covid pandemic could not have affected the Tribunal affording the Applicant procedural fairness and natural justice. The Applicant could not identify a denial of natural justice by the Tribunal.
The I agree with the submissions of the Minister, this limb of Ground 1 cannot be sustained by the Applicant.
Did the Tribunal refuse to accept documentary evidence?
The Minister submitted that there is no evidence that the Applicant attempted to provide documentary evidence to the Tribunal and further submitted that a complaint that the Tribunal did not accept the content of his Protection Claims would be impermissible merits review.
The Applicant submitted that he did not have any evidence and that he could not take any evidence with him because he left Malaysia in a hurry. In response to the question from me as to what documentary evidence did the Tribunal fail to accept, the Applicant responded in similar terms to the earlier question, namely that he did not bring the documents with him because he was in a hurry to leave Malaysia. He stated that he had just received a notice from a Court in Malaysia that said that if he went back to Malaysia he would be taken to court.
I agree with the oral submissions of the Minister, it is not up to the Tribunal to make the Applicant’s case for him: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at [169] to [170]; (1985) 65 ALR 549 at 563. Even if the notice from the Malaysian court was in existence at the time of the Tribunal Hearing the Applicant had ample opportunity to produce the alleged notice to the Tribunal and chose not to do so.
The Tribunal did not refuse to accept or take into account documentary evidence from the Applicant. The Applicant did not produce any documentary evidence to the Tribunal for any such evidence to be rejected nor did he seek additional time from the Tribunal to provide any documentary evidence that he alleged was available to him at the relevant time but located in Malaysia. The second limb of Ground 1 must also be rejected.
Ground 2 – The Tribunal failed to properly consider the threat of harm I faced at the hands of loan sharks in Malaysia
Ground 2 concerns whether the Tribunal properly considered the Applicant’s Protection Claims.
The Minister contended that the Tribunal’s reasons demonstrate that it considered the Applicant’s claim to be in fear of harm at the hands of Loan Sharks. The Minister further contends that by this ground the Applicant is taking issue with the merits of the Tribunal’s Decision to reject that claim.
If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed: see Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 58 ALD 609 per McHugh J at [67].
The Tribunal is entitled to give such weight to the evidence as it thinks appropriate in all the circumstances: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27].
When asked what mistake the Tribunal made with respect to Ground 2 the Applicant submitted that he did not bring documents because he left Malaysia in a hurry and he told his children to go to Indonesia to save their lives. He said that his house was burned down but he did not know who burned it, and that if he reported it would give him even more trouble in Malaysia. This material was not before the Tribunal. The Applicant appears to be asking the Court to engage in impermissible merits review. This ground of review must also be rejected.
Ground 3 - I am not satisfied that the Tribunal properly considered my case without bias or an open mind by refusing to consider the evidence tended about my issues with loan shark and my reasons for not seeking police assistance, because he thought my evidence was half-hearted and obfuscatory
The Minister submitted that an unfavourable assessment of an applicant’s case cannot in itself give rise to a reasonable apprehension of bias. The Minister further submitted that Tribunal’s description of the Applicant’s evidence does not give rise to an apprehension of bias. The Minister contended that there is no basis to find that the Tribunal was actually biased.
The test for apprehended bias is whether a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the relevant conduct, might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the questions to be decided: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982; 179 ALR 425 at [27]–[28]. An apprehension of bias must be ‘firmly established’: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553–554.
An allegation of actual bias must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]. A finding of actual bias should not be made other than in exceptional circumstances: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 123 (Wilcox J), 125 and 127 (Burchett J).
The submission of the Applicant was that he did not give the document from the Malaysian court to the AAT because he received it later, because of Covid. I repeat my observation regarding that fact that the Covid pandemic could not have affected the Tribunal Hearing and the Tribunal’s Decision due to the fact that the hearing occurred in 2017 and the subsequent decision was handed down in 2018. This submission bears no relationship with the third ground relied upon by the Applicant.
The Court agrees with the submissions of the Minister in that the use of the terms “half-hearted” and “obfuscatory” by the Tribunal in describing the Applicant’s evidence may be relevant to an assessment whether apprehended bias exists: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 at [20], [66] to [69] and [135]; Naisauvou v Minister for Immigration & Multicultural Affairs [1999] FCA 86; 89 FCR 435 at 439-439, [9] to [14] and 443, [29] and [32]; Vakuata v Kelly [1989] HCA 44; 167 CLR 568 at [9]. I have extracted paragraph [33] of the Tribunal’s Decision below, it is clear that the language used in context does not give rise to an apprehension of bias:
I find that this evidence lacks credibility and I did not find it reasonable to assume that the applicant did not know that he could make a police report. I do not accept his evidence that he does not fully understand how the system works and I find his response – “I didn’t fully understand how it works so I suppose I didn’t” – to be half-hearted and obfuscatory.
The third ground relied upon by the Applicant must also be rejected.
CONCLUSION
The Tribunal’s Decision is not affected by jurisdictional error.
The Application must be dismissed.
The Minister sought costs fixed in amount of $6,000.00,[7] which is less than the amount prescribed in Item 3, Division 1, Part 2 of Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). Accordingly, the Applicant is to pay the Minister’s costs in the sum of $6,000.00.
[7] Transcript P12:L9-13.
Orders will be made accordingly.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Bingham. Associate:
Dated: 18 July 2024
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