Eeo16 v Minister for Immigration

[2018] FCCA 2991

FEDERAL CIRCUIT COURT OF AUSTRALIA

EEO16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2991

Catchwords:

MIGRATION – Migration Act 1958 (Cth) – application for a protection visa – Administrative Appeals Tribunal affirms decision of Delegate not to grant – Applicant claimed decision of Administrative Appeals Tribunal affected by jurisdictional error – grounds asserted generalised and unparticularised and in effect seeking merits review – no basis to claims of jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604

Applicant: EEO16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3773 of 2016

Judgment of: Judge Dowdy

Hearing date: 18 October 2018

Delivered at: Sydney

Delivered on: 18 October 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Ms M. Donald

Solicitors for the First Respondent: Sparke Helmore

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 30 December 2016 is dismissed.

2. The Applicant is to pay the First Respondent’s costs of the proceeding in the sum of $5,000.

3. Pursuant to Rule 36.03(b) of the Federal Court Rules 2011 (Cth) the Applicant has up to and including 16 November 2018 to file any Notice of Appeal in the Federal Court of Australia from orders 1 and 2 above.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3773 of 2016

EEO16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The Applicant in this proceeding is a male citizen of Malaysia aged 29 years, having been born on 23 September 1989. 

2. By Application filed in this Court on 30 December 2016, he seeks to quash and impliedly have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 2 December 2016 which affirmed the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 20 October 2015 refusing to grant him a Protection (Class XA) (Subclass 866) visa (Protection visa).

Background

1. The Applicant arrived in Australia on 2 December 2013 as the holder of a Visitor (Class WD) (Subclass 601) visa (Visitor visa). That Visitor visa ceased on 2 March 2014 and he remained in Australia as an unlawful non-citizen. 

2. The Applicant then lodged an application for the Protection visa on 9 February 2015 where he stated that he read, wrote and spoke both the Cantonese and English languages. 

Claims for Protection

1. Within his Protection visa application he included a statement which set out his claims for protection, which were essentially:

   a)That he borrowed 50,000RM from a finance company in Malaysia to set up a company in April 2013 and he needed to repay 5,000RM to that finance company every month. He did computer assembly maintenance and software updating.

   b)In September 2013 a customer complained about a quality program with a computer which the Applicant had built for the customer and asked for a refund. The Applicant did a test on the computer and found no problems at all but the customer still insisted on a refund. The Applicant only offered him a 50 per cent refund, there was a quarrel and the customer was very angry.

   c)Before long, two policemen came to visit the Applicant. They said that they had received the customer’s complaint and they suspected the Applicant of fraud.  He was brought by the police to the police station for investigation but the police did not listen to him and said that he lied and they beat him. The police asked him to give them 10,000RM within two weeks or otherwise he would be imprisoned. 

   d)Whilst he was raising money, two police officers often threatened him to give the money more quickly.  He gave the money after two weeks but then did not have the money to repay the finance company and the finance company sent people to threaten him and to tell him he would be killed if the finance company was not repaid.

   e)He requested police protection but no action to protect him was taken.  The Applicant said in a statement that his life was at risk and he was forced to flee Malaysia.  His family in Malaysia was harassed by the finance company and, because his safety cannot be guaranteed, he is scared to return to Malaysia, so he wishes to stay in Australia legally.

Relevant Criteria and Law Applicable to Protection Visas

1. A convenient summary of the relevant grounds and criteria for the grant of a Protection visa can be found in the judgment of Charlesworth J in AWA15 v Minister for Immigration [2018] FCA 604 at [5] – [7] as follows:

   [5] The Minister is to grant a visa if satisfied that the visa applicant satisfies the relevant criteria. If the Minister is not so satisfied, he must refuse to grant the visa: s 65(1) of the Act. For the appellant to qualify for the grant of a protection visa it was necessary for the Minister to be satisfied that (among other things) the appellant fulfilled either the criterion in s 36(2)(a) of the Act (Refugee Criterion) or the criterion in s 36(2)(aa) of the Act (Complementary Protection Criterion).

   [6]The Refugee Criterion requires that the Minister be satisfied that the visa applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention, as amended by the Refugees Protocol, namely a person who:

   ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

   [7]Relevantly, the Complementary Protection Criterion requires that the visa applicant be a non-citizen in Australia 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; ....

Decision of Delegate

1. The Applicant attended an interview with a Delegate on 11 June 2015.  In his Decision Record, the Delegate found that the Applicant was not a refugee under the Refugee Convention criterion and that, whilst he might face significant harm if he returned to Malaysia, it was reasonable for him to relocate within Malaysia. 

2. Accordingly, the Delegate found that Australia did not owe protection obligations to the Applicant under either the Refugees Convention criterion or the complementary protection criterion, and refused to grant a Protection visa to the Applicant.

Tribunal Decision

1. The Applicant lodged a review application of the Delegate’s decision with the Tribunal on 16 November 2015 and he appeared before the Tribunal on 30 November 2016 to give evidence and present arguments.

2. The Decision Record of the Tribunal is dated 2 December 2016. The structure and form of the Decision Record is somewhat unconventional and I raised the bifurcation of the form of the Decision Record with the Minister’s lawyers yesterday and this morning Ms Donald, who appeared for the Minister, submitted that whilst the setting out of the decision record was a little unconventional it nevertheless complied with the obligations required of the Tribunal’s decision under s.430 of the Migration Act 1958 (Cth) (the Act) and I agree with that submission.

3. The structure of the Decision Record is that [1] is to be read first and then one jumps to Annexure A to the Decision Record, which sets out the Applicant’s protection claims and evidence from [19] – [28], and then one returns to [2] – [18] where the Decision Record ends. A decision-maker, just as a judge, has a reasonable discretion to set out the relevant decision in the way preferred so long as the decision otherwise complies with any applicable statutory and legal requirements and in the result the Decision Record does, in my view, comply with s.430 of the Act.

4. In its Decision Record, the Tribunal expressed its view at [13] that it did not accept that the Applicant had suffered any previous harm in Malaysia, nor that there was a real chance that he would suffer serious harm from the finance company or people hired by the finance company or the police or anyone else in the reasonably foreseeable future.  It expressed its view at [12] that the Applicant was not a credible witness and had fabricated his claims in order to found a claim for protection.

5. The Tribunal, in effect, rejected the Applicant’s claims root and branch. 

6. First, the Tribunal made adverse findings about the Applicant’s claims concerning the timing of important events fundamental to those claims. At [24] of its Decision Record the Tribunal recorded that the Applicant could not recall if he had come to Australia before or after the claimed problems with the police in Malaysia.

7. At [25] of its Decision Record the Tribunal recorded that the Applicant agreed that he had applied for the Protection visa because of and after his problems with the police in Malaysia.

8. At [26] the Tribunal recorded that the Applicant stated that he came to Australia “for no reason”.

9. At [27] the Tribunal put to the Applicant for comment that at the interview with the Delegate on 11 June 2015 he said that he had applied for a visa to come to Australia in October 2013 due to problems with the police in Malaysia which had occurred from 10-15 September 2013 but the Department of the Minister’s movement records indicated that his Visitor visa had been granted on 7 September 2013 prior to the claimed problems with the police. The Tribunal indicated that the Applicant could comment or respond immediately or seek an adjournment and he chose to respond immediately but could not confirm any dates.

10. At [10] of its Decision Record the Tribunal recorded that at the Tribunal hearing the Applicant had been unable to recall if he had applied to come to Australia before or after he had problems with the police in Malaysia and found that if the Applicant’s claims were true “then he would have been able to recall that he applied to come to Australia after he had problems with the police”.

11. At [11] of its Decision Record the Tribunal found that the Applicant had delayed in applying for a Protection visa, and did not accept his explanations (recorded at [28] of the Decision Record) explaining or excusing his delay in this regard.

12. The Tribunal then concluded as follows:

    [12]The Tribunal is of the view that the applicant is not credible and has fabricated his claims in order to found a claim for protection. The Tribunal does not accept that the applicant did borrow money to set up his own company, or that a customer complained or that he had trouble with the police, or they beat him and asked him to pay money to solve the problem or that when he paid them money he could not repay the finance company. Neither does the Tribunal accept that he fled Malaysia as a result, or that the finance company took away computer accessories and goods from his home or harassed his family.

    [13]For the reasons above, the Tribunal does not accept that the applicant has suffered any previous harm in Malaysia, nor that there is a real chance that he will suffer serious harm from the finance company or people hired by the finance company, or police or anyone else in the reasonably foreseeable future.

13. In the result, the Tribunal was of the view that the Applicant did not satisfy s.36(2)(a) or s.36(2)(aa) of the Act and that Australia did not owe protection obligations to the Applicant and, accordingly, it affirmed the decision of the Delegate not to grant a Protection visa to him.

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds are as follows:

   1. The Tribunal considers irrelevant facts regarding my application.

   2. The Tribunal does not consider my claims properly and believes I will not be harmed after I return to Malaysia. Thus, the Tribunal wrongly applied the law s.36(2)(aa).

Consideration

1. As can be seen, the two Grounds are expressed in general terms and are unparticularised. 

Ground 1

1. The Applicant this morning, in his submissions, has not identified any facts which were “irrelevant” but were taken into consideration by the Tribunal. 

2. Further, on the face of the Decision Record of the Tribunal itself, I cannot discern that the Tribunal has taken into account any irrelevant facts.  The Tribunal’s decision is, in fact, based on the Applicant’s claims as made in his Protection visa application form, including his statement and at his interview with the Delegate and as given at the Tribunal hearing.

Ground 2

1. Ground 2 alleges that the Tribunal did “not consider [the Applicant’s] claims properly” but this, in effect, seeks to invoke a merits review of the Tribunal’s decision.  On my reading of the claims as made the Tribunal did consider them and did give meaningful consideration to them. I cannot discern again, on the face of Decision Record of the Tribunal, that the claims of the Applicant were not considered properly and meaningfully by the Tribunal.

2. The fact of the matter is that, unfortunately for the Applicant, the Tribunal did not believe him and made credibility findings which, in my view, on the evidence, were legally and reasonably open to it and, in my view, neither of the grounds argued by the Applicant establish that the decision of the Tribunal is affected by jurisdictional error. 

Conclusion

1. Accordingly, the Application filed in this Court is to be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Associate: 

Date:  26 October 2018