DZL17 v Minister for Immigration

[2018] FCCA 3827

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZL17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3827

Catchwords:
MIGRATION – Protection visa – Administrative Appeals Tribunal – whether tribunal misunderstood the nature of the case being advanced by the applicant – audio of tribunal hearing put into evidence – whether tribunal failed to take account of a relevant consideration –applicant claimed to fear harm on the basis of a debt owed in Malaysia – applicant admitted he could repay the debt – whether applicant’s claim met Refugees Convention or complementary protection criteria – no basis for fear of harm – application dismissed.

Applicant: DZL17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1928 of 2017

Judgment of: His Honour Judge Wilson

Hearing date: 6 December 2018

Date of Last Submission: 6 December 2018

Delivered at: Melbourne

Delivered on: 20 December 2018

REPRESENTATION

Counsel for the Applicant: Mr A Aleksov

Solicitors for the Applicant: Clothier Anderson & Associates

Counsel for the First Respondent:

Solicitors for the First Respondent: Sparke Helmore

Counsel for the Second Respondent: No appearance

Solicitors for the Second Respondent: Sparke Helmore

ORDERS

1. The application filed on 6 September 2017 as amended on 20 November 2018 is dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the amount of $7 467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1928 of 2017

DZL17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed 6 September 2017 the applicant sought judicial review of a decision of the Administrative Appeals Tribunal made on 10 August 2017 pursuant to which the tribunal affirmed a decision of the minister’s delegate to not grant the applicant the protection visa he sought.

2. The applicant relied on one ground only in his amended application.  It was as follows (with an error in the original) –

   The Tribunal failed to respond adequately to evidence before it in relation to the applicant’s claim that the [sic] faces a risk of harm at the hands of money lenders if returned to Malaysia.

   Particulars

   (a)     The applicant relies upon legal submissions dated 20 November 2018 between paragraphs [2]-[5].

3. When the case proceeded in accordance with the unamended application, a registrar of this court determined to fix the case for a show cause hearing before me on 12 November 2018.  On the hearing of the show cause application, I took the view that it was appropriate for developed argument to be advanced so I gave directions for the filing of an amended application by 16 November 2018, for further submissions by the applicant by that date, for any amended response and submissions by 23 November 2018 and for a full hearing – not a show cause hearing – to be conducted on 6 December 2018.

4. On 6 December 2018 a full hearing was duly conducted.

5. The main issue in the case was whether the tribunal misunderstood the nature of the case being advanced by the applicant.  The applicant contended that the tribunal failed to grasp the point the applicant was endeavouring to make. 

6. The minister’s counsel argued that irrespective of transcription errors elsewhere in the transcript of the tribunal hearing the tribunal member put a particular paraphrasing of the applicant’s evidence to the applicant and the applicant agreed with the proposition as put with the consequence that the tribunal made no error as alleged.

Synopsis

1. For the reasons that follow, in my view no error was shown.  This application for judicial review fails.  The applicant must pay the minister’s costs.

Relevant factual history

1. The applicant is a Malaysian citizen who arrived in Australia on a tourist visa on 7 December 2015.  He applied for protection on 3 March 2016.  He claimed protection because he said he borrowed money from a person, the purpose of the loan being financial assistance for the applicant’s trip to Australia to take up a job opportunity.  When the applicant arrived in Australia, the job opportunity vanished.  Meanwhile the money lender visited the applicant’s family home asking for repayment of the debt where he threatened to kill the applicant for not repaying the loan.

2. The applicant said he feared returning to Malaysia before the debt was repaid and he said corruption Malaysian authorities would not protect him.

3. The delegate refused to grant the protection visa the applicant sought.

4. On 6 May 2016 the applicant applied for a merits review before the tribunal.  On 24 July 2017 the applicant attended a hearing before the tribunal assisted by Malay interpreter. 

5. On 10 August 2017 the tribunal affirmed the delegate’s decision.

6. In the single ground of review, the applicant’s particulars incorporated by reference four paragraphs of the applicant’s counsel’s written submissions.  That is not a practice I encourage as submissions blend factual and legal matters.  In all events, counsel for the applicant cast the case for the applicant on the basis that –

   a)the currency in which the applicant gave evidence was incorrectly understood by the tribunal;

   b)the applicant told the tribunal that he had liabilities that the tribunal should have but failed to take into account; and

   c)transcription errors appeared elsewhere in the transcript.

7. The last point was not the subject of a frontal assault on the tribunal’s reasons as were the first two propositions set out immediately above.  At the request of Mr Aleksov of counsel for the applicant I listened to the audio recording of the hearing before the tribunal. 

8. Having heard the competing propositions, the points seemed to boil down to one issue.  It was not the currency in which the discussion took place before the tribunal member and the applicant.  It was not whether on a net asset position the applicant did or did not disclose all funds to meet his debt to the money lender.  The issue was whether the applicant’s claim to fear harm met Convention or complementary criteria.  It seemed to me that the answer lay in the applicant’s own evidence.  He said he could repay the loan and that it was not a problem.  It seemed to me that the amount of the debt was not an issue.  Rather, the applicant’s own evidence was that he could repay the loan irrespective of the currency in which the loan was expressed, and irrespective of whether deductions were to be made for family or other purposes.  Based on that fact, the applicant did not face an ongoing chance or risk of harm.

9. In my view, Mr Aleksov raised a fascinating point but the applicant’s own evidence answered it.  In my view, the applicant’s only ground of review was not made out.

Conclusion

1. I dismiss this application and order the applicant to pay the minister’s costs.

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

Date:     20 December 2018