Egu17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 153
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EGU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 153
File number(s): MLG 2046 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 22 February 2022 Catchwords: MIGRATION - judicial review of a decision of the Administrative Appeals Tribunal affirming a decision of the delegate of the Minister to refuse to grant the applicant a protection visa – claim to fear harm in Malaysia from loan sharks – the applicant’s ground of review assert errors in relation to claims that bear no relevance to the protection claims – no error of law identified – application dismissed Legislation: Migration Act 1958 (Cth), ss 5J, 36, 476 Cases cited: CGQ15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
EIC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 74
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZLHM v Minister for Immigration and Citizenship [2008] FCA 754
SZTGE v Minister for Immigration and Border Protection [2014] FCCA 1458
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of hearing: 22 February 2022 The Applicant appeared in person Solicitors for the Respondents: Mr C Orchard of Sparke Helmore Place: Sydney ORDERS
MLG 2046 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EGU17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
22 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The application filed on 22 September 2017 is dismissed.
3.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed with this Court on 22 September 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 September 2017 affirming a decision of a delegate of the Minister (delegate) to refuse to grant the applicant a protection visa (visa).
Background
The applicant, a citizen of Malaysia, first arrived in Australia on an Electronic Travel Authority visa on 7 March 2016 (Court Book (CB) 41). On 17 May 2016, the applicant applied for the visa (CB 1) by which he made the following claims:
(a)in Malaysia he worked with loan sharks who would blackmail persons who did not pay their debts;
(b)he no longer wanted to work with the loan sharks because he was “unwilling to use my own rudeness”, but he had been threatened with death by the group’s leader if he left;
(c)he went to make a police report but was beaten very badly and because of that he does not dare ask for further police help;
(d)he fled to several states in Malaysia but the group was able to track him down;
(e)he finally fled to Singapore and stayed there for eight years until one of the group saw him and then threatened him, so he came to Australia; and
(f)if he returns to Malaysia he is sure he will be killed.
On 2 September 2016, the delegate refused to grant the applicant the visa (CB 41). The delegate found the applicant’s claims were lacking in key details and were not supported by evidence. The delegate found that while the applicant’s claims were unlikely, in any case he would be able to avail himself of effective state protection in Malaysia such that the applicant was not a person to whom Australia owed protection obligations pursuant to ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (Act).
On 24 September 2016, the applicant applied to the Tribunal for review of the delegate’s decision (CB 58).
On 10 August 2017, the applicant was invited to attend a hearing scheduled for 5 September 2017 (CB 64) which he did and at which he gave evidence and presented arguments with the assistance of an interpreter (CB 66).
On 5 September 2017, the Tribunal made an oral decision affirming the decision of the delegate not to grant the applicant the visa (CB 71) and issued a record of the outcome of the decision which bore an incorrect date on its cover sheet. On 6 September 2017, the Tribunal issued a corrigendum to correct the date on the cover sheet to read 5 September 2017. This was sent to the applicant and to the Minister’s Department (CB 73). On 31 October 2017, the Tribunal provided the written statements of its reasons and decisions which also bore the correct date of decision.
After setting out the applicant’s claims for protection and the relevant legislation, the Tribunal summarised the evidence given at the hearing. The Tribunal accepted many of the applicant’s claims, including his date of birth, nationality, ethnicity, the circumstances of his childhood, his education level and his marital status. The Tribunal also accepted that he was charged and sentenced to three months jail in 2005 for offences relating to drugs and violence.
The Tribunal accepted the circumstances regarding the applicant’s arrival in Australia. In relation to the applicant’s claims to fear harm in Malaysia from gang loan sharks for whom he used to work, the Tribunal considered the applicant’s evidence to be vague and limited, and noted that if the applicant had been working for the gang for three years as claimed, the Tribunal would have expected that he could provide greater detail regarding the gang.
The applicant claimed that he had left the gang in 2007 when they wanted him to burn someone’s house down and he did not wish to. The applicant said that rather than telling the gang that he was leaving it, he simply departed, moved to Singapore and started a new life there which was peaceful until November 2015 when he was approached in Singapore and he was asked to re-join the gang.
The Tribunal noted that the applicant was unable to explain why this event would have happened such a long time after his departure in Malaysia, and considered such a significant effluxion of time not to be credible. To the extent that the applicant claimed the gang would be unhappy about a person who knew how they operated now being outside of the gang, and that he might be killed for this, the Tribunal noted that the applicant had remained in Singapore for 12 months after the first time he was approached there and asked to re-join before he then departed for Australia.
Overall, the Tribunal did not consider the applicant’s claims to be plausible and assessed the applicant as not being a credible witness. Accordingly, the Tribunal was not satisfied that the applicant had been in a gang in Malaysia and had left because he had been asked to do something that he did not wish to do. The Tribunal did not accept that the gang later found the applicant in Singapore and beat him to prevent him from going to the police. The Tribunal also did not accept that there were any gang members who were threatening to beat or kill the applicant.
Accordingly, the Tribunal did not accept that the applicant faced a real chance of serious harm from a gang or anyone else in Malaysia, and that he did not have a well-founded fear of persecution for one of the reasons set out in s 5J of the Act. Based on its anterior factual findings and the applicant’s claims, the Tribunal was equally satisfied that the applicant did not satisfy the complementary protection criterion.
Application to this Court
By his application to this Court, the applicant seeks judicial review of the Tribunal’s decision under s 476 of the Act and raises seven narrative grounds of review (errors in original):
1.Application for Protection Visa (Sub Class 866) has been refused and would like to make an appeal for Judicial Review of this matter with FCC.
2.Decision was affirmed by AAT to refused to grant me protection visa is a very poor decision by the tribunal.
3.AAT has not considered my case in full. I have advised AAT that I would have great deal of danger to my life if I go back to Malaysia. AAT has given no regard to my claim and unfairly affirmed decision by AAT and refused my application.
4.I claim that I am genuine applicant for refugee visa as per Immigration Law requirement, under Section 36 (2) (a).
5.I would like to request to FCC that I come from Malaysia and lived and grown in Malaysia and came in contact with local youth group where we were all from Christian religion. We were preaching our religious beliefs peacefully and local Muslim (native) went against us and this has lead to a very bad situation and I was put into a situation where either I leave the country or get beaten or kidnapped and go through torture.
6.I have explained to AAT I am a genuine refugee and would like FCC to review this matter and set new orders to replace old orders made by AAT through a error in law made by Administrative Appeals Tribunal.
7.AAT has dealt with my matter unfairly as they have ignored the verbal evidence provided to them by myself and relied on the information provided by Royal Malaysian Police. Please accept my application and give me chance to present my matter and provide you supporting documents as well.
The applicant appeared before me this afternoon using the Microsoft Teams platform with the assistance of an interpreter in the Malay language. The applicant confirmed at the outset of the hearing that he speaks English, and on a number of occasions he requested to address me in English. The applicant also indicated that he wished for these ex tempore reasons for judgment to be delivered in English, after I also confirmed that he would later receive a written copy of the reasons for judgment. The Minister was represented today by a solicitor. The connection appeared to be clear throughout without any technical difficulties, and the parties and the interpreter did not appear to have any trouble in understanding one another, nor engaging with the Court.
On 30 May 2018, a Registrar of this Court made orders by consent which provided, among other things, for the applicant to file and serve any Amended Application 28 days before the final hearing. This did not occur. On 22 December 2021, another Registrar made orders listing the matter before me today, and otherwise for the preparation of the matter by which the applicant was ordered to file written submissions, but none have been forthcoming. The Minister filed written submissions in accordance with the Court’s orders.
When I describe the grounds of review as being narrative, they are more of a written submission which urge upon the Court the truth of the applicant’s protection claims. At the outset of the hearing, I asked the applicant whether or not he had prepared this application himself, and he confirmed that he had. I also explained to the applicant the limitations on the Court’s jurisdiction regarding the ability of the Court to assess his claims, the truth of them, and to grant him a visa, and he said that he understood this.
Ground 1 of the application simply narrates the purpose of the application, and the applicant agreed with me when it was put to him that this does not set out any error on the part of the Tribunal. Similarly, ground 2 claims that the decision of the Tribunal was very poor, albeit making no allegation of error, and I assumed that this was intended to be a disagreement with the outcome of the Tribunal’s review, which the applicant confirmed.
Each of grounds 4, 5 and 6 of the application to review assert the truth of the applicant’s protection visa claims, albeit ground 5 curiously did so on the basis that the applicant was a genuine Christian who feared harm from Muslims and claims that the applicant had had to leave Malaysia by reason of this feared harm.
Expressed in this way ground 5 was difficult to understand because the applicant made no such claims to the delegate or to the Tribunal. When asked about this ground, the applicant said that after the Tribunal hearing he had gone to see a lawyer in the city in Melbourne. The applicant then said that the Court application was not proposed by him, but by a lawyer on his behalf.
The applicant confirmed that the signature at CB 88 (being the signature page of the application to this Court) is his, and that he had signed the application before filing it with the Court. When I impressed upon the applicant that it was his responsibility to ensure that the matters that were in his application were accurate, he told me that he would be honest and he really had not read the grounds of application until today. The applicant said he thought that the grounds would be the same as the claims which were made to the Tribunal.
When asked whether or not he wished to press ground 5, the applicant said that he did not wish to because it should not be part of the application.
This is the second time in a week that I have considered an application by a Malaysian applicant which contains a ground of review asserting error in relation to claims which bear no relevance to the actual protection claims raised before the Tribunal, see EIC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 74 at [5].
This suggests that someone was, at least in 2017, assisting applicants of Malaysian nationality with the preparation of applications to this Court with grounds with no relevance to their actual claims.
In SZLHM v Minister for Immigration and Citizenship [2008] FCA 754 at [35]-[36], Flick J made pertinent observations about the use by unrepresented litigants of template grounds:
35. First, there is a self-evident difficulty if a ground which may have prevailed in one set of circumstances is sought to be transposed to different proceedings in which the ground is simply not apposite. The success of a particular argument in the circumstances of a particular case obviously does not mean that the same argument will always prevail and does not mean that the argument is even appropriate to be advanced in other proceedings.
36. It may well be understandable that an unrepresented litigant may wish to call upon all possible arguments and that an unrepresented litigant may well lack the ability to discern whether an otherwise successful argument is even relevant to his own circumstances. Indiscriminate reliance, however, upon arguments transposed from other proceedings may simply provide false hope to the unrepresented. And indiscriminate reliance upon grounds divorced from the circumstances of the particular proceedings under consideration may well only serve to detract from such prospects of success as an application may otherwise present.
The comments in SZLHM are apposite. However, even if ground 5 was reiterating the applicant’s actual protection visa claims, as I explained to him at the outset of the hearing, it is still not something which I could review. The applicant must identify an error of law or procedure.
This leaves grounds 3 and 7, not because they expressly alleged jurisdictional error on the part of the Tribunal, but because they sufficiently raised issues which could give rise to a jurisdictional error if properly particularised and then made out. By ground 3, the applicant said that the Tribunal did not consider his case in full. The second part of the ground alleged that the Tribunal unfairly affirmed the Tribunal’s decision. In that regard, and as was noted by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25] (accepting there a submission from the Minister), what is required by procedural fairness is a fair hearing and not a fair outcome.
When asked what he meant by his statement that the Tribunal had not considered his case in full, the applicant told me that he was not sure whether the Tribunal really did consider his claims. He said he was confused and that it was not his decision; it was the decision of the Tribunal. When I specifically asked the applicant if there was some part of his claims the Tribunal had failed to consider, the applicant said, “the Tribunal actually did consider all of my evidence”.
The Minister agrees and says that there is no basis for the allegation that the Tribunal failed to properly consider the applicant’s claims and that contrary to what is raised by the ground the Tribunal did properly identify the applicant’s claims and then went on to make findings that were open to it for the reasons that it gave, citing in particular [13] to [23] of the Tribunal’s reasons for decision.
The Minister says that, having been based on rational grounds and arrived at on consideration matters that were logically probative to the issue of credibility, citing CGQ15 v Minister for Immigration and Border Protection (2016) 253 FCR 496, that these findings do not disclose jurisdictional error. I agree with that submission, and am of the view that even when particularised by the applicant, the allegation in ground 3 could not be made out on a fair reading of the Tribunal’s findings and reasons. Although, again, I note that the applicant appears to have conceded that the Tribunal actually undertook the task required of it.
Lastly in relation to ground 7, when asked via the interpreter how it was that the applicant says that the Tribunal had dealt with his matter unfairly, the applicant said he did not agree with ground 7.
The applicant said it was difficult for him to say now that the Tribunal treated him unfairly. He said it considered all the information based on his experiences and that he is “just the applicant”. The applicant said he “did not mention that it was unfair”, and he “did not put this information”. Explored further, this again appeared to be a submission by the applicant that he had not drafted ground 7. He again said that he did not agree with ground 7 and it was not pressed.
The applicant then said he was very sorry and that when he opened the application again to find grounds 5 and ground 7, they “were not right” and he did not agree with them. In light of the fact that the applicant is unrepresented before me today, that he has not availed himself of the opportunity afforded to him by the Court to file an amended application in 2018, that he failed to provide written submissions to the Court and the fact that he seemed to resile from a number of the grounds in his application on the basis that he said he had not prepared them, I gave the applicant a further opportunity to raise any ground before me that he wished.
In response the applicant said that when he went to the Tribunal he was asked to take an oath and to tell the truth. He said that even after he had taken the oath and he had been very honest and had given all of the facts to the Tribunal, the Tribunal still did not accept what he said. He then said that he had “been given the wrong decision”. The applicant said that he had put the application to this Court in order to rectify it so that he could have a chance to stay in Australia. Again, when pressed to identify an error on the part of the Tribunal, the applicant said that he believed that the error was that after he had taken the oath to tell the truth, the Tribunal still did not find his claims to be true.
The first respondent says that this is an impermissible attempt at merits review and repeated the submission that the Tribunal had carefully considered the issue of credibility, and having turned its mind to the question it assessed credibility and found it to be lacking on the basis of rational grounds arrived at on probative evidence, which was available to it, and logically linked to the issue of credibility.
As an example, the first respondent pointed to the fact that the applicant claimed to have been in Singapore for eight years before having been contacted out of the blue by persons asking the applicant to re-join the gang. The first respondent says the applicant is claiming that the Tribunal simply did not believe him, and this does not give rise to a jurisdictional error.
It is well-established that the Tribunal is not required to uncritically accept the evidence of the applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Beaumont J. Similarly, the Tribunal was not required to have rebutting evidence before it could decide not to accept the applicant’s claims: see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J.
To the extent that the applicant is suggesting that because (and only because) he took an oath, the Tribunal ought to have uncritically accepted his claims, this does not change matters. If it were the case that simply by virtue of having taken an oath a witness was to be uncritically believed, there would be no basis upon which any decision-maker could assess credibility or the veracity of claims.
While it is no doubt disappointing to the applicant that he was not believed, and that he feels that the decision of the Tribunal was wrong, then as noted earlier the outcome is not what is required to be fair, rather it was whether or not the hearing itself and the processes of the Tribunal’s decision making were fair, and in this case I find that they were. The fact that the applicant clearly disputes the outcome does not give rise, in and of itself, to a jurisdictional error.
The second part of ground 7 also referred to independent country information, which the applicant says was information from the Royal Malaysian Police. It is suggested that this information was preferred over the applicant’s own evidence.
Given the ground was ultimately withdrawn, it is not probably not strictly necessary to address this. However, given my observations at [22] to [23] above I will note that the Tribunal did not in fact rely on any independent country information, let alone specifically rely on information which regarding/from the Royal Malaysian Police. In this regard, and as the Minister says that the weight to be given to such evidence would generally have been considered to be uniquely in the purview of the Tribunal as part of its fact-finding function: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ.
Accordingly, even if pressed, that allegation would fail at a factual level because no such information was considered.
While also not raised by the parties I will also briefly address the Tribunal’s issuance of the corrigendum on 6 September 2017 to say in the interests of completeness that nothing turns upon it. The creation of the date on the front of the record at outcome did not, in my view, do anything to the substantive decision or the Tribunal’s reasons for that decision.
It has been held that a Tribunal cannot, by a corrigendum, avoid the consequences of a jurisdictional error if one exists: see SZTGE v Minister for Immigration and Border Protection [2014] FCCA 1458 per Judge Driver at [28] to [30].
A corrigendum may be prudent to indicate recognition of a clerical, typographic or other error which does not go to jurisdiction, and in this case the correction on the face of the outcome of decision record to an error in the date had the effect of tidying the written record, but nothing more.
To the extent that the applicant has today resiled from several of the grounds which were included in his application, I reiterate that he was then given an opportunity at the conclusion of the Minister’s submissions to say anything he wished. In addition, when given the opportunity to make submissions in reply to the Minister’s oral submissions, the applicant said that he did not really have anything to say, but that the decision made by the Tribunal is “fair enough”. The applicant said that whatever information he had provided to the Tribunal was true he said but he equally did not agree that the application put to the Court was right. The applicant said that after today’s hearing, while he had no errors he could identify in the decision of the Tribunal, he would be going back through the Court papers to identify any errors that he considered to be there.
I reiterated to the applicant that it was his responsibility to have ensured that the grounds advanced in this Court were accurate, and that he was content with his application, particularly in circumstances where the matter has been on foot for more than four and a half years. While the applicant now says that he did not prepare the grounds himself and has clearly sought to withdraw or not press several of them today, there is no evidence before me that he was not involved in the preparation of the application. He did not suggest that he had not filed it himself and, in fact, he expressly concedes that he had signed the application.
While it may be that the applicant had assistance and that certain content of the grounds of application were not matters he wished to press, there is nothing before me to suggest that there is any particular issue arising from the preparation of the application which means he has not received a fulsome review in this Court, nor which would give rise to a jurisdictional error on the part of the Tribunal.
While it is true that applicants do not assist themselves by recycling the grounds of others, in this case I am satisfied that the applicant has been given ample opportunity by the Court and over a significant period of time to prepare his case and also to amend his application. He did not avail himself of the grant of leave to file further documents with the Court, nor did he attempt to do so outside of any grant of leave. I am satisfied that the applicant has been given every opportunity to advance, amend and present his case including by a “carte blanche” invitation by me today to raise any matter he so wished.
In all of those circumstances, and for the reasons which have already been given, I am satisfied that there is no error present in the decision of the Tribunal as alleged by the application and the remaining grounds as pressed before the Court today. Further, having reviewed the decision of the Tribunal there is nothing on its face that suggests to me that it is affected by a jurisdictional error. Absent a jurisdictional error, the decision is, therefore, a privative clause decision and should be dismissed and I will so order.
Consequent upon the dismissal of the application, the first respondent seeks an order that the applicant pay costs fixed in the sum of $5,000.
When asked to comment or make submissions on this, the applicant said that he understood the costs order but that he would like to know if he had to pay the amount in one go or whether it could be paid in instalments. I explained to the applicant that he would receive correspondence from the solicitors for the first respondent setting out details of to whom at the Department he could speak in regards to time to pay or payment by instalments. When asked if there was anything further that the applicant wished to say, he indicated that $5,000 is a huge amount for him to pay because he now has children and he is no longer single.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 10 March 2022
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