DVT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Case •

[2021] FCCA 1813

•

6 August 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1813

File number(s): SYG 3548 of 2016
Judgment of: JUDGE HUMPHREYS
Date of judgment: 6 August 2021
Catchwords: MIGRATION – Administrative Appeals Tribunal – Protection (Subclass 866) visa – whether the Tribunal had  jurisdiction to make the said decision because its 'reasonable satisfaction' was not arrived at in accordance with the provisions of the Migration Act 1958 (Cth) – whether the Tribunal misconstrued the risk and fear of significant harm as set out in s 36(2A) of the Migration Act 1958 (Cth) – whether the second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of Migration Act 1958 (Cth) to give the applicant clear particulars of infom1ation it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed
Legislation: Migration Act 1958 (Cth), ss 5J(1)(a) 26, 36, 424, 437, 438
Cases cited:

SZYBR v Minister for Immigration and Citizenship (2007) 235 ALR 609

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Number of paragraphs: 36
Date of last submission/s: 3 August 2021
Date of hearing: 3 August 2021
Place: Parramatta
Solicitor for the Applicant: The Applicant appeared in person.
Counsel for the Applicant: Mr Kay Hoyle appeared on behalf of the First Respondent

ORDERS

SYG 3548 of 2016
BETWEEN:

DVT16

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE HUMPHREYS

DATE OF ORDER:

6 AUGUST 2021

THE COURT ORDERS THAT:

1.The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs.

2.The application is dismissed.

3.The Applicant to pay the First Respondent’s costs fixed in the amount of $7,000.00.

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

  1. The applicant is a citizen of Malaysia. The applicant arrived in Australia on 19 March 2015. On 9 June 2015, the applicant applied for a Protection (Subclass 866) visa. The applicant claimed to fear harm as a result of owing money to a ‘loan shark’.

  2. The applicant did not take any steps to seek an interview with the Department of Immigration (“the Department”) to provide further information in respect of his claims. Accordingly, a delegate of the Minister for Immigration (“the delegate”) determined the claim, on the basis of the information contained within the Protection visa application. A decision to refuse the visa was made on 3 February 2016.

  3. The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”). In a decision dated 16 November 2016, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa.

  4. The applicant now seeks judicial review of the Tribunal decision.

    THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION

  5. At paragraph 5 of its decision, the Tribunal noted that there was a public interest restriction pursuant to s 438(1) of the Migration Act 1958 (Cth) (“the Act”) in relation to two folios which can be described as a validity checklist that records the fact that the applicant provided personal identifiers to the Department, and a document stating there are no documents or information subject to restriction pursuant to s 437 of the Act.  The Tribunal was of the view that it was not sure why the Department had issued the certificate, but that the relevant certificate was not valid as public interest immunity would not be applicable to documents of this nature.

  6. At paragraph 12 of its decision, the Tribunal noted that the applicant arrived in Australia on 19 March 2015, his passport having been issued on the 25 February 2015.

  7. At paragraph 12 of its decision, the Tribunal noted the applicant’s claims that he left Malaysia because he became involved with a loan shark.  The applicant stated that he borrowed some money to join a business partner in a restaurant.  After they opened a restaurant, his business partner ran away and took all the money that had been given to him to run the business.  The applicant claimed to need protection from the loan shark from whom he had borrowed money and his friends who had guaranteed the loan.

  8. At the Tribunal hearing, the applicant gave evidence that he borrowed approximately AUS $18,000.00 at an interest rate of 10%, with a requirement to repay the loan after one year.  The applicant gave 80% of the money to his business partner for a renovation but his business partner absconded with the money.  A guarantor was involved, however the guarantor has not paid off any part of the loan.

  9. The applicant said that he came to Australia after he was threatened by both the loan shark and the guarantor.  The applicant stated that he had been informed that if he reported the matter to the police, they would kidnap the applicant’s fiancée and hold her for ransom.  At the time of the Tribunal hearing, the applicant had been in Australia for some 20 months but nothing had happened to his family or fiancée.  The applicant stated that he broke up with his fiancée.  The applicant said that the loan shark and guarantor knew nothing about his other family as he did not tell them.

  10. At paragraph 22 of its decision, the Tribunal noted country information which indicated that Malaysian police are generally considered to be a professional and effective police force.  Law enforcement authorities are interested in and regularly arrest loan sharks but are hamstrung by a lack of co-operation by victims.  The applicant said that if he complained to police he would be threatened and he cannot afford to take risks.  Police could not guarantee his safety.  It was put to the applicant that he could go to another part of Malaysia. The applicant responded that loan sharks have connections and links everywhere.

  11. At paragraph 30 of its decision, giving the applicant the benefit of the doubt, the Tribunal accepted that the applicant had borrowed money from loan shark, was unable to repay it and that his fiancée was almost kidnapped.  The Tribunal accepted that the applicant was threatened by the loan shark and his guarantor because he was unable to pay the funds to the loan shark.

  12. At paragraph 33 of its decision, the Tribunal found that an essential and significant reason for the harm the applicant feared, was not a refugee reason, that being reasons of race, religion, nationality, membership of a particular social group or political opinion. The applicant was threatened with harm for what he had done, being, borrowing money from loan shark and not being able to repay the money as agreed. The applicant does not claim to fear any harm for any other reason. Owing money to a loan shark is not a reason, as set out in s 5J(1)(a) of the Act that attracts an obligation for protection under the Refugee Convention, or the complimentary protection criteria.  In relation to the latter, the Tribunal accepted, based on country information, that the Royal Malaysian Police Force was a credible police force that can and did target loan sharks and could provide the applicant with protection if he was at risk.

    GROUNDS OF JUDICIAL REVIEW

  13. The grounds of judicial review relied upon, are contained in an Initiating Application filed with the Court on 13 December 2016.  It should be noted that although the grounds are numbered one to four, there is no ground three.  Accordingly, ground four in the application, has been renumbered as ground three below. The grounds of judicial review are as follows verbatim:

    Ground One

    The Tribunal misconstrued the risk and fear of significant harm as set out in s 36(2A) of the Migration Act 1958.

    Ground Two

    The Tribunal had no jurisdiction to make the said decision because its 'reasonable satisfaction' was not arrived in accordance with the provisions of the Migration Act.

    Ground Three

    The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of infom1ation it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

    Particulars

    The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

    THE APPLICANT’S SUBMISSIONS

  14. The applicant appeared before the Court unrepresented.  The applicant was assisted by a Malay Interpreter.  The hearing was conducted by telephone due to COVID 19 health restrictions.

  15. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that a copy of the first respondent’s written submissions had been interpreted to him. The Court also ensured that the applicant had access to a pen and paper so that he could take notes during the course of the hearing should he wish to.

  16. At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review and the difference between the two types of review.  The Court also explained how the hearing would be conducted.

  17. Despite Court orders, no written submissions or other material was filed by the applicant in support of his case other than as set out below.

  18. In an Affidavit affirmed on 12 December 2016, the applicant stated that the Tribunal decision was unjust and was made without taking into account the full gravity of his circumstances and the consequences of the claim.

  19. The applicant told the Court that he was a member of a group who feared persecution, being the victim of a loan shark and that this fell within the definitions set out in s 5J of the Act. The applicant also stated that the Tribunal did not properly apply s 36(2)(aa) of the Act. The applicant suggested that it was well known that Malaysian Police were not able to protect him and were unable to stop the activities of loan sharks.

  20. Following completion of the first respondent’s oral submissions, the applicant was asked if he wished to state anything further in reply. The applicant replied that the country information relied upon by the Tribunal was not suitable to his circumstances. The applicant acknowledged that the Tribunal did accept that he was the victim of a loan shark.

    THE FIRST RESPONDENT’S SUBMISSIONS

  21. Counsel for the first respondent noted that the applicant’s claim that he fell within the definitions of s 5L of the Act (although not contained in the grounds of judicial review), was misplaced and he was instead, presumably relying upon the definition of a social group contained within s 5L of the Act. If this was the case, then on a proper reading of s 5L of the Act, being the victim of a loan shark was not a characteristic that placed the applicant as a member of a particular social group, as defined in that section in that the applicant did not meet the requirements of s 5L(a)-(d) of the Act. 

  22. It was submitted that the grounds of judicial review identify general types of error, but without anchoring in facts, so as to give an indication of why there is an error of the sort alleged.  This problem is particularly acute in respect of ground two which is simply addressed to an assertion concerning the Tribunal’s state of satisfaction.

  23. Ground one states that there is a misconstruction of s 36(2A) of the Act, but does not identify the misconstruction itself. Ground three, in effect, merely restates the terms of s 424A and


    s 424AA of the Act, stating that no invitation was given pursuant to those sections, but fails to identify why that was required in this particular case.  The first respondent concedes that no invitation was given. 

  24. It was submitted that it is well-established that where grounds of appeal are put with a high degree of generality, and lack specificity or are without any real particulars that of itself is sufficient basis for dismissing the application: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35]). In this particular case, the un-particularised grounds, prevent the first respondent fully addressing any specific error and therefore, in effect, places an onus on the first respondent to identify the reasons why the general assertion of error does not apply. Given these significant limitations, the following submissions were made.

  25. In relation to ground one, it was submitted that it is clear from the terms of the decision that the Tribunal concluded the applicant was in a position to obtain state protection from any harm he claimed to fear. Although the Tribunal did not expressly refer to it, it is apparent that it was applying s 36(2B)(b) of the Act which provides that there is not a real risk of significant harm if the applicant “could obtain, from an authority of the country, protection such there would not be a real risk that the non-citizen will suffer significant harm”.  The Tribunal weighed independent country information against the claims made by the applicant.  The Tribunal assessed whatever harm might befall the applicant, noting that the Tribunal made no finding that such harm was “significant harm” for the purposes of s 5(1) of the Act.

  26. In relation to ground two, the applicant asserts that the Tribunal reached the state of “reasonable satisfaction” in a manner that was not in accordance with the Act.  It was submitted that the term “reasonable satisfaction” is not one contained in s 65 of the Act. To the extent the applicant calls into question how the Tribunal reached the state of satisfaction that the applicant did not meet the criteria contained in s 36 of the Act, that claim cannot be meaningfully assessed, in the absence of a specific allegation of  error.

  27. Ground three makes allegations in respect of non-compliance with s 424A and s 424AA of the Act.  Which in appropriate cases, the decision-maker is required to put to the applicant, where it might be the reason or part of the reason for affirming a decision, certain information, this information must be the reason or part of the reason for affirming the decision; the information must constitute a rejection, denial of undermining of the applicants claims: (see; SZYBR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17]).

  28. It is clear that both sections are predicated upon there being information that falls into the requisite category. The assertion of any error requires both the information to be identified and there to be an arguable basis for suggesting that such information involved “a rejection, denial of undermining” of the applicant’s claims such that the Tribunal is obligated, either in writing or orally, to put the information to the applicant. The applicant’s claims fail at the threshold. The relevant information is not identified. Further, the information relied upon by the Tribunal was country information that, in any event, constitutes an exception to the operation of s 424A and s 424AA of the Act: (see; s 424A(3)(a) of the Act).  

    CONSIDERATION

  29. In relation to the claim raised by the applicant in oral submissions that he was part of a social group, being persons who owe money to loan sharks, the Court is not satisfied that this claim falls within the relevant definition of a social group as set out in s 5L of the Act.

  30. It is common ground that the applicant claims to fear harm on the basis that he owes money to a loan shark.  The Tribunal was prepared to give the applicant the benefit of the doubt in accepting his claims that he did owe about AUS $18,000 to a person from whom he borrowed money.  In terms of the refugee criteria, the Tribunal correctly concluded that this was not a reason that entitled the applicant to claim protection.  In terms of the complimentary protection criteria, relying upon relevant country information, the Tribunal was satisfied that the applicant could and would receive proper protection from the Royal Malaysia Police, should he make a complaint upon his return.

  31. The Court is satisfied there is nothing irrational, illogical or unreasonable in the factual findings made by the Tribunal based on the evidence that was before it and for the reasons it gave.

  32. In terms of the applicant’s grounds of judicial review, ground one is a general statement that the Tribunal misconstrued the risk and fear of significant harm as set out in s 36(2A) of the Act, but provides no particulars to ground the claim.  If grounds of judicial review are not supported by particulars, then for that reason alone they are liable to be dismissed: (see; WZAVW at [35]). The Court accepts the first respondent’s submission that the applicant could obtain state based protection. This was based on relevant country information. This country information was material the Tribunal was entitled to take account of and give such weight to it as it thought fit. Ground one has no merit.

  33. Ground two is an assertion the Tribunal failed to reach a state of “reasonable satisfaction” in a manner that was not in accordance with the Act. As pointed out by the first respondent, that term is not contained in s 65 of the Act.  In the absence of any particulars as to how the Tribunal failed to carry out its duty in accordance with the Act, the claim is incapable of assessment and is simply a bare assertion of jurisdictional error. For the reasons as set out above it has no merit: (see; WZAVW).

  34. In relation to ground three, the Court is satisfied that there was no information before the Tribunal that was capable of amounting to a rejection, denial or undermining of the applicant’s claims such that it was required to be put to the applicant. The Tribunal accepted the applicant’s claims that he owed money to a loan shark. Accordingly, there was no information that enlivened the requirements of either s 424A or s 424AA of the Act. Country information, as pointed out by the first respondent, constitutes an exception to the operation of s 424A and


     

    s 424AA of the Act.  It was the country information that was relied upon by the Tribunal to determine that the applicant was not entitled to protection under the refugee criteria, and due to the fact that the applicant was entitled to protection from a state authority, being the Royal Malaysia Police Force, he was not entitled to protection under the complimentary protection criteria.  Ground three has no merit.

  35. As the applicant is unrepresented the Court has perused the decision record of the Tribunal but is unable to find any unarticulated jurisdictional error.

    CONCLUSION

  36. Accordingly, the application is dismissed.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:  

Dated:       6 August 2021

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