Ehc20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 2049
•31 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EHC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2049
File number: PEG 278 of 2020 Judgment of: JUDGE KENDALL Date of judgment: 31 August 2021 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether Tribunal adequately assessed applicant’s claims – whether applicant was denied procedural fairness – whether Tribunal was “biased” – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36, 424AA, 476 Cases cited: Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Haq v Minister for Immigration & Border Protection [2018] FCCA 1523
Minister for Immigration & Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 106 Date of hearing: 26 August 2021 Place: Perth Applicant: In person Counsel for the First Respondent: Mr A Gerrard Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 278 of 2020 BETWEEN: EHC20
Applicant
AND: MINISTER FOR IMMIGRATION MULTICULTURAL AFFAIRS AND CITIZENSHIP
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
31 AUGUST 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of Malaysia (Court Book (“CB”) 23 & 48). He arrived in Australia as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa in December 2015 (CB 54, 97). This visa ceased in February 2016, following which the applicant was deemed to be residing in Australia “unlawfully” (CB 54).
On 29 August 2016, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 10-48). The applicant claimed, in effect, that he left Malaysia because he had significant debts owed to loan sharks (CB 42-44). Relevantly, the applicant claimed that he had been “chased for the money” and the loan sharks had threatened to “beat him or hurt him and his family” if he did not re-pay the money he owed.
On 15 February 2017, a Ministerial delegate refused to grant the applicant the visa (CB 54-67). The delegate was not satisfied that the applicant was a refugee and a person in respect of whom Australia has protection obligations.
On 2 March 2017, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 92-93).
On 27 August 2020, the Tribunal affirmed the decision not to grant the applicant the visa (CB 149-168).
On 25 September 2020, the applicant filed an application for judicial review of the Tribunal’s decision in this Court (CB 1-6). The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
While this Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring instead, where possible, to summarise the Tribunal’s core findings), at times it is indeed necessary to recite a substantial portion of the Tribunal’s reasons in order to draw attention, in some detail, to the Tribunal’s reasoning process and to properly consider and address the contentions raised against the Tribunal: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (per McKerracher J) at [29] to [32].
Here, the Tribunal’s decision is lengthy and detailed. It is 20 pages in length and spans 106 paragraphs. Three pages comprise of relevant legislative provisions.
The Tribunal began by identifying the type of visa under review and noted that the applicant had been notified of the delegate’s decision on 17 February 2017 (at [1]-[2]).
The Tribunal noted that the applicant was not represented and had appeared before the Tribunal by telephone on 2 April 2020 and by videoconference on 5 August 2020 (at [4]). The applicant had the assistance of an interpreter in the English and Mandarin languages on both occasions (at [7]). It appears the first hearing was adjourned because the Tribunal was not satisfied with the quality of the phone technology during the hearing (CB 121). In this regard, the Tribunal notes that the applicant did not object to his hearings being conducted electronically (at [5]).
The Tribunal summarised the criteria relevant to the visa and noted that, in accordance with Ministerial Direction No. 84, it had taken account of the Refugee Law Guidelines, the Complementary Protection Guidelines and country information assessments (at [8]-[13]). The Tribunal also outlined the law relevant to credibility assessments (at [14]-[22]).
The Tribunal identified the issue before it to be whether the applicant “has a well-founded fear of persecution in Malaysia because he owes money to loan sharks in Malaysia, or for any other reason, or whether complementary protection provisions otherwise apply” (at [23]).
The Tribunal then outlined the information before it relevant to the applicant’s travel history, family and schooling in Malaysia (at [28]-[31]).
The Tribunal then summarised the applicant’s original claims and evidence, as follows:
32.At the first hearing the Tribunal explained to the applicant the documents before it. The Tribunal read to the applicant the summary of claims contained in the delegate’s decision record, which are taken from the applicant’s written application for the visa. These claims were as follows:
•The applicant was involved in a multi-level marketing business and a few friends joined his network. He wanted to contribute more money to the network and decided to borrow money from a loan shark.
•The applicant discovered that the business was a scam and they took all the money and ran away. The “downline” chased the applicant for money and the applicant could not even repay the loan sharks.
•The applicant feared he would be threatened and beaten if he could not pay their money.
•If the applicant returns to Malaysia, all the “downline” in the network would hunt him down, and the loan sharks will ask for their money back.
•In Malaysia the applicant was beaten by his “downline” as they wanted their money. The loan sharks also threatened the applicant’s family if he did not repay the debt.
•The loan shark told the applicant not to report the matter to the authorities or else they would hurt the applicant’s family. The loan sharks are involved in “gangsterism” and are not afraid of the authorities.
•The loan sharks have gang members throughout the country and they would track the applicant down.
33.The Tribunal then noted that, in response to this summary, the applicant told the Tribunal:
Actually before I came to Australia a friend of mine said I can help you apply for a 3 year working visa and he applied the visa on my half. But I didn’t know the working visa is a protective visa.
The Tribunal then asked the applicant whether he “was talking about the application for the visa made on 26 August 2016 in Australia” and the applicant responded ‘yes’. Further, the applicant told the Tribunal that “back then a friend of a friend told him they could help him apply for a working visa in Australia”. The applicant then borrowed money in Malaysia and “it took a while for the person to apply for the visa for him” (at [34]).
The Tribunal asked whether it had provided “a fair summary of [the applicant’s] claims”. The applicant responded “No I thought the visa was a working visa.” When the Tribunal then asked if what the Tribunal had outlined were not his claims for protection the applicant responded that “he didn’t know the actual visa was a protection visa” (at [35]).
The Tribunal asked the applicant if he did, in fact, have any claims for protection. The applicant asked, if he was not successful in his application for the visa, whether the Tribunal could allow him ‘a little more time to pay the money back to the people in Malaysia’. The Tribunal clarified that it was only able to assess if the applicant met the criteria for the visa (at [36]).
The Tribunal then asked why the applicant was seeking a protection visa (at [36]). The applicant responded:
Can I put it this way, can I say the reason for the protection visa is to avoid the debt chasings from all my friends and family in Malaysia and it has been a while since I sent money home and it is really hard for me.
The Tribunal queried whether what the applicant was saying was that he wanted a protection visa so he didn’t have to return home and pay money to friends and family in Malaysia (at [37]). The applicant replied:
I was actually thinking if it is possible stay here a little bit longer so I can pay back the debt so if now I am going back to Malaysia they are just chasing me up for money and that will not be a good experience for me.
The Tribunal queried whether the applicant intended to return to Malaysia and the applicant responded “yes” (at [38]).
The Tribunal then asked the applicant if there was anything he “needed to change in his application for protection”. The applicant said “yes” and explained (at [39]):
I want to make my change because I wasn’t aware it was a protection visa, I want to make a change to the reason. What I meant was similar I just told the Tribunal, I want to stay a little bit longer and want them to stop them chasing them from money but I have to stay here to make the money first.
The Tribunal then extracted the written submissions the applicant provided to the Tribunal after the first hearing (at [40]). Those submissions provided as follows:
I’m [EHC20] from Malaysia. I hold tourist visa came to Australia on [omitted].
The reason I came to Australia is because someone introduced me that I can apply for an Australian work visa and can work legally in Australia for three years.
The customer of the optical shop I working introduced me to a person named [omitted].
[omitted] said that he has a friend named [omitted] who works in Australia with a work visa. His friend can help get a work visa and introduce jobs. [omitted] also wants to work in Australia, so he lobbied me work in Australia together.
[omitted] friend tell us we need to pay 7000 Australian dollars (about 22,000 MYR) each person for apply Australian work visa.
Because of working in optical shop and get low salary, I respond [omitted] came to Australia together I took out the 4,000 MYR that I had saved, and borrowed from my relatives, and finally made up the total of 24,000 MYR.(include flight ticket fee)
After that, we came to Perth, Western Australia. I took a taxi with [omitted] to his friend's house. After meeting, [omitted] arranged for me to live in a house already have 16 person live inside (36 ellerby way koondoola) rented by a Malaysian illegal farm agent named Eagle, and [omitted] lived elsewhere.
The second day [omitted] bring us to supermarket buy some daily supplies.
third day we were arranged to pick cherry tomatoes and do some maintenance jobs on the farm
fourth day [omitted] talked about the work visa with us, both of us need to pay him each person 4000 Australian dollars first, since [omitted] feet have been twisted in Malaysia he cannot do heavy work, he want to think about it.
Just me respond [omitted] want to apply Australia work visa, I pay [omitted] 4000 dollar. [omitted] just give me few pages from the form to sign and took some details from me. He never show me the complete form even I ask.
I get work visa after my tourist visa expired and then I pay 3000 dollar to [omitted].
[omitted] just stay in Australia 2.5 month and then go back to Malaysia.
After I pay [omitted] I cannot contact him again, he already move to other place and changed mobile number.
After that, I studied the work visa I got. That is not a work visa, is a bridging visa under visa protection. I can’t do nothing after that, because I already waste a lot of money to apply the wrong visa, and I just get bridging visa c with no work rights. I was cheat by [omitted].
I hope you can give me the opportunity to pay off my debts in Australia and Malaysia.
I signed up for the Australian driver’s license before and I have already spent a lot of money to learn to drive. I can take the road test in this November.
I hope sir can give me a time to take the road test and I hope you can give a times to pay off my debts in Australia and Malaysia, before cancel my visa.
(errors in original)
The Tribunal noted that it informed the applicant that all aspects of his claim were in issue before the Tribunal, including whether he satisfied each of the criteria of ss 36(2)(a) and 36(2)(aa) of the Act (at [41]).
The Tribunal then noted as follows:
42.At the second hearing the Tribunal asked the applicant again about the claims made in the application, summarised in the delegate’s decision. The applicant confirmed that the claims as expressed in the application were not correct. He said that ‘the first part about the loan shark is not correct’. He said he had a customer in Malaysia who introduced him to someone who said they could get a three-year working visa in Australia. He said he was told that to make the application for the working visa he needed to pay $7000 AUD. He then discussed this with a friend and they decided to come to Australia together. He said he then started to borrow money from friends which he added to the about $4000 Malaysian dollars he had in savings which added up to the $7000 AUD he needed.
The Tribunal continued to summarise the applicant’s evidence, noting that the applicant told the Tribunal that his friend had told him that he could work legally in Australia and it was only when he received an email regarding his bridging visa in 2016 that he knew that it was not lawful for him to work. Further, when he found out that “the application” was actually for a protection visa, he thought that he had to pay back the debt and had “no choice but to work, even though illegally” (at [46]).
The Tribunal then noted that, when it put it to the applicant that it had concerns regarding his credibility and his willingness to disregard immigration laws by choosing to work when his visa did not permit him to do so, the applicant told the Tribunal that he had looked for information and did not contact the Department because he feared detention and deportation (at [47]).
The Tribunal continued:
48. The Tribunal explained that it is responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. It is also the responsibility of an applicant to provide truthful and accurate information in support of a visa application. The applicant said that he understood and that he had made a 'big mistake'.
49. The Tribunal noted that the fact the applicant had provided information in support of his application in the form of claims which were not accurate may cause a concern regarding the credibility of information he provided in support of the visa application. He said he understood this. The Tribunal clarified with the applicant that he had made an application for a bridging visa with work rights on his own and he said that he had.
50. The Tribunal asked whether the applicant planned to return to Malaysia and he said that ‘if I earn money and pay back debt I would love to go back’. The Tribunal asked the applicant to describe the experiences in Malaysia that made him fear returning to where he lived before coming to Australia and he said ‘I cannot pay back money and those people were chasing me all the time. Other thing is I am also worried if I ever go back because economic situation is very bad.’
The Tribunal then summarised the applicant’s evidence about “the loan”, as follows:
51. The Tribunal asked who it was the applicant had borrowed money from. He told the Tribunal he borrowed money from his aunty, [omitted], the sister of his father. He said she was living and working in Singapore. The Tribunal queried whether the applicant's aunt had pursued him for repayment of the loan and he said, ‘She constantly went to talk to my mum because my mum is working in Singapore.’ He said his aunt also worked in Singapore. The Tribunal asked whether his aunt had threatened him or his mother and he said that when she talks to his mother she (his mother) tries to help him out by paying back a little bit of the money. He said he couldn't give an exact figure on the amount he borrowed but as he needed $7000 AUD he thought it was about $6000 AUD. The Tribunal asked how much of the loan his mother had repaid and he said he thought he owed about $3000AUD.
52. The Tribunal asked again whether the applicant's aunt had made any threats to him or his family and he said he couldn't exactly say but that his mother ‘feels intimidated and bothered’ by his aunt. The Tribunal asked what the applicant feared his aunt may do if he returned to Malaysia and he said, ‘I guess she might come to me and ask me pay the money all at once.’ The Tribunal asked whether he thought he could arrange a payment schedule with his aunt and he said ‘yes’. The Tribunal queried what the applicant thought his aunt would do if he could not repay the debt and he said ‘probably say nasty things and say things in front of the other relatives. And probably she would try and force me to pay the money’. He said she would do this by coming to his home and scolding him.
53. The Tribunal discussed with the applicant that while it could appreciate this might be embarrassing and unpleasant it was difficult to see how his aunt scolding him in family would amount to serious or significant harm. He said he understood and his only intention was to be able to pay the debt.
54. The Tribunal noted the applicant's mother has been paying the debt off for the applicant and queried if the members of his family would be able to assist him to pay off the loan and the applicant said that his brother and sister earn very little money and could not help him.
55. The Tribunal queried if the applicant had been paying off the debt himself and the applicant said that previously he had been able to pay of around $10000 Malay dollars (Ringgit) but at the moment he cannot pay rent or food and has to ask his parents to pay the money.
56. The Tribunal queried why if he is unemployed in Australia the applicant wouldn't return to Malaysia and he said, ‘I was just thinking to stay a bit longer and see how the situation would be, maybe getting better.’
The Tribunal then explained that it was required to put certain adverse information to the applicant that appeared in the relevant Departmental file (at [57]). That information related to the applicant’s submission to the Department that he had sought help from a person from Malaysia to apply for the Bridging visa and had paid this person $1200 (at [58]). The Tribunal explained that this information was relevant because the applicant had told the Tribunal that he had paid $7000 in two instalments of $3000 and $4000 and he had “borrowed money in Malaysia to pay for this” (at [59]).
The Tribunal continued:
60.The applicant commented that the first time he mentioned the amount he said it was $1200 AUD but ‘at that time I wasn’t telling the full truth of the fact to the member’. He said that at the time of the first hearing he was ‘a bit concerned what would happen later on’. He said the written submission he made following the first hearing was ‘all the information I want to let the member know. All the things I want to say, included in my statement.’
61.The Tribunal clarified that the information it put to him was information provided to the Department with respect to the Bridging visa application, not information provided at the first hearing. The Tribunal asked why the applicant would provide different information to the Department. The applicant said that the purpose of that application was to obtain work rights so he didn’t think he had to provide all the information. The Tribunal queried why he would provide information that was incorrect or untruthful and the applicant said that he made a mistake because he didn’t know the procedures or that ‘everything goes on in this kind of way’.
62.The Tribunal queried if the applicant was saying he didn’t know he had to provide truthful information and he said, ‘yes I have applied for the working rights for 4 times and I was thinking I would make some amendment each time and try to get approved’.
The Tribunal then noted as follows:
63.The Tribunal did not accept the applicant’s explanation for having provided an earlier inconsistent account of his application for the protection visa and his arrangement with [omitted] which provided a significantly smaller figure for the amount paid to the person who assisted him. The inconsistency and the lack of any reasonable explanation for it, leads the Tribunal to have concerns regarding the applicant’s account of the debt and the amounts paid with respect to lodging the visa application…
The Tribunal then considered the relevant country information contained in the delegate’s decision and in the latest Department of Foreign Affairs and Trade (“DFAT”) Country Information Report: Malaysia dated 13 December 2019 (at [64]).
The Tribunal outlined the country information in relation to loan sharks (at [65]-[71]).
In this regard, the Tribunal determined as follows:
65.However, the Tribunal notes that in evidence before the Tribunal the applicant did not claim to have borrowed money from loan sharks in Malaysia or to have been in debt to anyone other than his aunt who had not made any threats to the applicant or his family but had been repaid in part by the applicant’s mother. The applicant told the Tribunal he did fear his aunt may seek repayment from him on return to Malaysia and may seek to force him to repay her by ‘scolding him’ in front of the family.
66.Further, the Tribunal considered the relevant country information and finds that the country information considered against the applicant’s circumstances did not establish any basis on which the applicant may face harm on return to Malaysia under the refugee or complementary protection criterion.
The Tribunal then outlined the country information regarding the Malaysian economy (at [72]-[75]). The Tribunal put it to the applicant that the country information suggested that the applicant would be able to obtain employment in Malaysia to support himself and service his debt (at [73]).
The Tribunal noted that the applicant gave evidence to the Tribunal that “he agreed” but queried, if he could not “pass this hearing and reach a favourable decision on [his] case”, whether the Tribunal could “consider that he still had debts in Australia and so needed a longer time to stay in Australia to pay those debts” (at [73]).
The Tribunal also noted that the applicant did not raise any claim to fear harm on return to Malaysia with respect to an Australian loan (at [75]).
The Tribunal then considered the applicant’s claims as detailed in his original application for protection and his subsequent application to the Tribunal, individually and cumulatively (at [76]). Relevantly, the Tribunal determined as follows:
77.The Tribunal expressed to the applicant credibility difficulties with some aspects of his evidence, in particular his inconsistent evidence regarding the amounts he had paid to [omitted] and the fact he was in the country unlawfully for a period and, on his own evidence, had been working unlawfully. While the Tribunal found that the applicant genuinely desires to remain in Australia for economic reasons, the Tribunal was concerned that the delay in seeking protection was not consistent with a genuinely held well-founded fear of persecution on return to Malaysia or with a claim to have left Malaysia to seek protection in Australia due to harm or threats of harm.
78.Further the Tribunal found the applicant’s evidence regarding when he discovered he was in the country unlawfully and whether he was able to work in Australia was inconsistent and implausible. He initially said he engaged [omitted] to apply visa with work rights once he arrived in Australia. However he commenced working a week after arriving while on a tourist visa and many months before he applied for the protection visa. He later said he didn’t know he didn’t have work rights until he received notice from the Department in 2016. However, he continued working as he has ‘no choice but to work even though illegally’. While the Tribunal is prepared to accept the applicant may have been confused about the nature of the protection visa application the Tribunal finds the applicant’s claim to have be under the impression he could work while on his tourist visa was inconsistent with his evidence he paid [omitted] to apply for a visa in Australia so he would have the right to work.
79.On the basis of the evidence the Tribunal accepts the applicant paid money to a third person to assist him with making an application for a visa which would give him work rights. The Tribunal also accepts the applicant did not intend to apply for a protection visa but thought he was applying for a work visa. However, the inconsistencies in the evidence regarding the amounts paid to [omitted] and the fact this account was not raised in the original application, cause the Tribunal not to accept the applicant’s account of these transactions or the claim that he borrowed money from friends and family in Malaysia.
80.The Tribunal does not accept the applicant paid $7000 AUD to [omitted]. Giving the applicant the benefit of the doubt, the Tribunal accepts that the applicant may have paid the a fee of $1200 AUD to a person to assist with his application, as indicated to the Department in 2016, the year he says the payment was made. The Tribunal accepts this figure as more credible on the basis it was given at a time relatively close to the time the payment was said to have been made and in a context where the applicant was seeking the right to work rather than attempting to establish a claim for protection. Having considered all the information before it, the Tribunal finds that the applicant exaggerated the amount he paid for assistance in applying for the visa in order to strengthen his claims for protection and to provide a rationale for the claims that he loaned money in Malaysia in relation to which he had outstanding debts which placed him at risk on return.
The Tribunal accepted that the applicant had borrowed money from his aunt to assist with the costs of moving to Australia but did not accept that he borrowed money from anyone else, including loan sharks (at [81]).
The Tribunal did not accept that the applicant was at any risk of serious harm from his aunt (at [82]).
The Tribunal also noted the applicant’s evidence that he had not been threatened by, and would not be harmed by, his aunt or his family members and the applicant indicated that he might be able to negotiate a repayment schedule with his aunt (at [83]).
The Tribunal then highlighted that the applicant had not provided any corroborative supporting evidence of any debts owed in Malaysia or to any serious harm he might face due to the loan from his aunt (at [84]).
The Tribunal was concerned that there were significant inconsistencies in the applicant’s account of the circumstances of having made the application and having taken loans in Malaysia to facilitate the application. This included having initially suggested he had paid someone $1200 to make the application on his behalf and later claiming he had paid $7000 to that person (at [85]).
Overall, the Tribunal formed the view that applicant had embellished aspects of his account of the loans he claimed to have taken in Malaysia “in order to strengthen his claims for protection” (at [85]).
The Tribunal did not accept that the applicant would face a real chance of serious harm amounting to persecution as a result of the loan. The Tribunal gave weight to the following factors in reaching this conclusion (at [86]):
•at the Tribunal hearings the applicant claimed only to have borrowed money from his aunt and said his claims to have borrowed from a loan shark were not true;
•the applicant left Malaysia more than four years ago;
•neither he nor his family members have been harmed or threatened by his aunt;
•the applicant did not articulate any fear harm on return to Malaysia from his aunt or anyone else with respect to loans taken out in Malaysia or Australia, other than being asked to repay the loan by his aunt and being scolded in front of his family if he did not;
•the applicant agreed he could work out a payment plan with his aunt and his mother is working in Singapore and has been making payments on the loan on his behalf.
The Tribunal accepted that, if the applicant returns to Malaysia, it is plausible that his aunt may request repayment of the loan. However, the Tribunal did not accept the applicant’s claims that there is a real chance that he will face serious harm from his creditors on his return to Malaysia. Overall, the Tribunal determined that the applicant came to Australia to seek employment, not because he feared serious harm from a loan shark, his aunt or any other person (at [87]).
The Tribunal continued:
88.Having considered all the circumstances of the applicant’s claims regarding debts, his delay in seeking protection and credibility concerns regarding his claimed payments for visa assistance in Australia (as the reason for seeking the loan), the Tribunal finds the applicant does not have a subjectively held well-founded fear of persecution on his return to Malaysia.
89.In any event, even if the applicant held such a fear, were the applicant’s aunt to seek to enforce the debt, the Tribunal does not consider that the applicant’s fear of persecution is well-founded. The Tribunal has considered relevant country information and while it accepts that the country information reflects that predatory lending practices in Malaysia can be associated with violence and crime, it also finds that the Malaysian police and government authorities have taken, and continue to take, prosecutorial action against such practices and violence, arresting large numbers of illegal and or violent money lenders in actions across the country. Further, the Tribunal accepts there are organisations such as the MCA who offer assistance to individuals and businesspeople in circumstances such as the applicant has described and that such services may be available to assist the applicant on return to Malaysia.
90.Moreover, the Tribunal is satisfied that the applicant would be able to access effective protection measures should he return and receive threats in relation to loans in Malaysia. While the Tribunal acknowledges that the 2019 DFAT report identifies some problems with corruption in the Royal Malaysian Police (RMP) force, it is generally described as professional, and there is no indication that assistance from the RMP would be withheld from the applicant if reported incidents of threats or harm to the police. The DFAT report refers to the fact that the RMP have in fact taken action against loan sharks, including fining and prosecuting them. The Tribunal considers that this meets the requirements in relation to s.5LA(2) regarding effective state protection being taken to be available where a person can access protection, that protection is durable, and in the case of protection provided by the relevant state, that protection consists of an appropriate criminal law (specifically, legislation addressing the activities of loan sharks), and a reasonably effective police force.
Overall, the Tribunal did not accept that the applicant had established that there was any basis on which it could be satisfied that the applicant faced a real chance of suffering serious harm in Malaysia from a loan shark, his aunt or any other person now or in the reasonably foreseeable future (at [91]).
The Tribunal also considered the applicant’s claims that he would suffer economic hardship if he returned to Malaysia and determined as follows:
92.The Tribunal has also considered the applicant’s claim that he will suffer economic hardship if returned to Malaysia. The Tribunal notes that the applicant was previously able to find work before coming to Australia. While it acknowledges that work in Malaysia may pay lower wages than he could earn in Australia were he employed here, the Tribunal notes that the applicant has family support in Malaysia and has been receiving support from his mother in paying the loan. The Tribunal finds the applicant would have family support on return to Malaysia.
93.Seeking economic benefits in another country in and of themselves do not give rise to a well-founded fear of harm for the purposes of the refugee criteria. The Tribunal finds based on credible country information discussed at the hearing that the economic circumstances in Malaysia are generally not such as would constitute serious harm. Further, the applicant provided no evidence of any particular circumstance applying to him which would lead him to face a real chance of serious harm on this basis on account of his race, religion, nationality, membership of a particular social group or political opinion. The applicant did not claim to fear harm on any of those bases. There is no information before the Tribunal to suggest that the applicant will be subjected to harm on his return to Malaysia for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Act. In particular he has not raised any basis on which the economic hardship he claimed he will suffer arises by reason of race, religion, nationality, membership of a particular social group or political opinion.
94.In any event, the Tribunal finds that poor economic circumstances in Malaysia do not, in the absence of other considerations, give rise to a cognisable, well-founded fear of harm, for the purposes of the refugee criteria. In this respect, the Tribunal refers specifically to s.5J of the Act, relating to a well-founded fear of persecution in a country. In particular, the requirement that persecution must involve systematic and discriminatory conduct. Generalised economic circumstances in a country do not meet the requirement of systematic and discriminatory conduct as required by s.5J(4)(c) of the Act, in the absence of other considerations. The Tribunals find that the applicant has not provided any evidence that the economic circumstances which he referred to in his claims, amount to systematic and discriminatory conduct with respect to him. Accordingly, and having regard to the applicant’s individual circumstances and the country information regarding the economic circumstances in Malaysia, the Tribunal finds that the applicant would not face a real chance of serious harm on return to Malaysia now or in the reasonably foreseeable future on this basis.
Having considered the applicant’s claims individually and cumulatively, the Tribunal was not satisfied that that the applicant would face a real chance of serious harm now or in the reasonably foreseeable future if he returned to Malaysia (at [95]).
The Tribunal then considered complementary protection under s 36(2)(aa) of the Act and determined as follows:
98. The test which the Tribunal must apply is a forward-looking test, namely, whether the applicant faces a real risk of significant harm in the reasonably foreseeable future on return to Malaysia. The Tribunal finds that the applicant has not been threatened or harmed with respect to loans owed to his aunt. He has family in Malaysia with whom he maintains contact including his mother who has previously provided financial support for him when needed, including with respect to meeting loan repayments. His brother is working in Singapore and his sister is working in Malaysia. His aunt provided him with financial support in the form of the loan when the applicant sought assistance from her. Further the applicant has worked in Malaysia and Australia. He has family members working in Malaysia and Singapore. The Tribunal finds based on the applicant's evidence and circumstances he would have family support and prospects for employment in Malaysia or Singapore. This combination of facts leads the Tribunal to find that the applicant does not face a real risk of significant harm on return to Malaysia.
99.For the reasons set out above, the Tribunal has found there is no real chance of the applicant suffering serious harm if returned to Malaysia. In Minister for Immigration and Citizenship v SZQRB [2013] FCAFC, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well- founded fear’ in the Refugee Convention definition. The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J. To the extent that that the definitions of ‘serious harm’ and ‘significant harm’ differ, the Tribunal is satisfied that economic hardship falling short of denial of the ability to subsist does not constitute ‘significant harm’ of the kind contemplated by ss 36(2A) and 5(1).
100.Noting the findings the Tribunal has already detailed, relating to the applicant’s claims, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, that there is a real risk that he would suffer significant harm, now or in the reasonably foreseeable future, from any person or for any reason.
On the basis of the above, the Tribunal concluded that, taking the applicant’s claims individually and cumulatively, at their highest they do not meet the required thresholds under either the refugee assessment criteria or the alternative complementary protection assessment criteria (at [102]); the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act (at [103]); and, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act (at [105]).
The Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa (at [106]).
PROCEEDINGS IN THIS COURT
The application for judicial review filed on 25 September 2020 contains nine “grounds of review” as follows:
1. I, [ECH20], applied for a protection visa on 26 August 2016.
2. On 17 February 2017, my application for a protection visa was refused by the Delegate of the Minister.
3. I applied to the Administrative Appeals Tribunal for a merits review of the decision.
4. I appeared before the Administrative Appeals Tribunal trying to explain my situation.
5. On 27 August 2020, the decision of the Delegate of the Minister was affirmed and the refusal was upheld.
6. I do not think that my position, situation or circumstances have been adequately assessed for the visa.
7. I think I am entitled to give my thoughts and reasoning for my position.
8. I have relevant matters to discuss that I hope the court will take into consideration.
9. I feel that I have not been listened to and do not understand why my visa was refused and would like a chance to put forward my side of the situation.
On 25 September 2020, the applicant filed an affidavit sworn on 23 September 2020. That affidavit attached a copy of the Tribunal’s decision but did not raise anything that can be interpreted to be a further ground of review.
The applicant was given an opportunity to file any amended application, supporting affidavits and written submissions. No further materials were filed.
The materials before the Court thus include the application for judicial review filed on 25 September 2020, correspondence from the Minister confirming that the applicant had been sent the Court Book and the Minister’s written submissions (marked as Exhibit 1), a Court Book numbering 168 pages (marked as Exhibit 2) and written submissions filed by the Minister on 11 August 2021.
On 20 August 2021, the applicant advised chambers that he could not attend in person as he was suffering from dental inflammation and was experiencing cold symptoms. The Court granted leave for the applicant to appear electronically. No objection or concerns were raised in this regard. The applicant appeared electronically on 26 August 2021. He did so without legal representation. Initially, the applicant appeared via Microsoft Teams. That proved to be problematic as the applicant’s screen seemed “blurred”. The applicant then reconnected and appeared via telephone. Again, no objections were raised in this regard and the Court is satisfied that the applicant was able to engage with the Court and present his arguments without difficulty. The applicant was assisted by an interpreter in the Mandarin and English languages. The Court confirmed with him that he had a copy of the Court Book and the Minister’s written submissions with him.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or application for review), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong”.
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 (“SZRUI”)at [2]; and
(g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 (“Li”) at [26]-[28]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa that he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant outlined concerns he had with the Tribunal’s approach and its decision. In effect, the applicant highlighted three areas “of concern”. First, the applicant seemed to suggest that the Tribunal had overlooked relevant evidence or seemed reluctant to address some evidence. Second, the applicant suggested that the Tribunal was “biased” because, in effect, it appeared to him that the Tribunal had “already made up its mind”. Third, the applicant raised what is arguably a procedural fairness issue – that being that he was not given an opportunity to speak and advance his case.
These oral submissions are addressed below when addressing the applicant’s “grounds of review”.
CONSIDERATION
In its duty to assist self-represented litigants, the Court has interpreted the applicant’s grounds of review as broadly as possible to ensure that, to the extent that legal error of any sort is identified, it can be scrutinised: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”). The Court has also considered for itself whether any error arises in the Tribunal’s decision (as per the decision in MZAIB).
Grounds 1 to 5 are factual and outline the procedural history of the applicant’s protection visa application. No identifiable error arises in this regard. These grounds of review also refer to the delegate’s decision. This Court has no jurisdiction to review the delegate’s decision: the Act, s 476(2) and (4). The Tribunal’s decision on review “cures” any error in the delegate’s decision or processes: Minister for Immigration & Border Protection v SZVCH [2016] FCAFC 127 at [37]-[38]. Hence, no error (of a sort that this Court can address) is identified in this regard.
Similarly, grounds 7 and 8 do not allege jurisdictional error. They are statements of fact or an indication that the applicant wishes to plead his case.
Only grounds 6 and 9 of the applicant’s “grounds of review” can, taken at their highest, be read to allege jurisdictional error. The Court again notes that these grounds of review provide as follows:
6. I do not think that my position, situation or circumstances have been adequately assessed for the visa.
…
9. I feel that I have not been listened to and do not understand why my visa was refused and would like a chance to put forward my side of the situation.
In relation to grounds 6 and 9 the Minister submits as follows in written submissions dated 11 August 2021:
33. Insofar as the applicant alleges at grounds 6 and 9 that his claims or evidence have not been adequately assessed or heard or understood, the first respondent’s submits that the grounds must fail for the following reasons:
33.1. It is apparent from the Tribunal’s statement of reasons for decision that it thoroughly considered the applicant’s evidence. The Tribunal held 2 hearings and carefully considered the applicant’s written submissions. The Tribunal provided a detailed account of the evidence to which it had regard: [32]-[39], [41]-[62].
33.2. The applicant was given a real and meaningful opportunity to present evidence and arguments. In proper compliance with s 425 of the Act, the Tribunal invited the applicant to give evidence and present arguments in relation to the issues arising in relation to the decision under review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592.
33.3. The applicant was assisted by an interpreter in the English and Mandarin languages and there is no evidence or suggestion that the applicant was not able to successfully give oral evidence.
33.4. The Tribunal put to the applicant adverse information for comment, pursuant to s 424AA of the Act, to which the applicant responded at the hearing. No error is disclosed in the Tribunal’s approach: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609.
34. It cannot be said that the applicant was not afforded a meaningful hearing, or that the Tribunal failed to adequately assess his claims and evidence.
For the reasons that follow, the Court accepts the Minister’s submissions that no error arises in the Tribunal’s decision as suggested in grounds 6 and 9 or, indeed, generally.
Ground 6
Ground 6 states:
I do not think that my position, situation or circumstances have been adequately assessed for the visa.
The Court interprets this ground of review as suggesting that the Tribunal did not properly address all of the evidence before it or as suggesting that the Tribunal’s decision is “unreasonable”.
In relation to the assessment of the evidence before it, the applicant has not outlined what evidence, in particular, was not “assessed” by the Tribunal.
The Tribunal’s reasons for decision spans 20 pages and 106 paragraphs. The decision is lengthy, forensic and, indeed, a template for effective decision writing that others would do well to emulate.
The Tribunal carefully outlined the applicant’s claims and evidence at paragraphs [32] to [62] of its reasons. It considered in detail the following evidence and the applicant’s responses to questions that were put to him about the following evidence:
(a)the applicant’s summary of claims as per the delegate’s decision (at [32]-[39]);
(b)the applicant’s written submissions to the Tribunal (at [40]); and
(c)the applicant evidence at both hearings before the Tribunal (at [41]-[62]).
The Tribunal also put adverse information to the applicant at [57] to [63] as per s 424AA of the Act. The applicant was given an opportunity to respond to this information.
The Tribunal also considered the relevant country information in detail (at [64]-[75]).
The Tribunal then comprehensively outlined its consideration of the applicant’s claims (even those which, on the applicant’s own evidence, he had effectively abandoned) and the basis for its findings (at [76]-[96]).
There is nothing before the Court that can, in anyway, be seen as suggesting that Tribunal overlooked relevant evidence or that it “seemed reluctant” to address all of the evidence before it.
In relation to whether the Tribunal’s approach and determination is “unreasonable”, the Court notes as follows.
"Unreasonableness" can occur in circumstances where a decision is made that is so devoid of plausible justification that no reasonable person could have taken that course: Li at [28] per French J. It can also occur when a decision has been made that lacks an "evident and intelligible justification": Li at [76]. As explained by Bell and Crennan JJ in SZMDS, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it (at [133]).
The test for unreasonableness is "stringent" and only arises in rare cases: Haq v Minister for Immigration & Border Protection [2018] FCCA 1523 at [36].
In Minister for Immigration & Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 the Full Court of the Federal Court explained, in connection with the principles of unreasonableness:
[65] … The expressions that have been utilised include decisions which are "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", and "obviously disproportionate". It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a "checklist" exercise: Singh at 445 [42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
In this matter, the Tribunal determined, overall, that the applicant had come to Australia to seek employment – not because he feared serious harm from a loan shark, his aunt or indeed any other person (at [87]). That finding was, the evidence (all of which was forensically “unpacked” by the Tribunal as being contradictory, inconsistent and unreliable) pointed to an application for protection visa that appears to have been made in “by mistake”.
The Tribunal was not satisfied that the applicant would face a real chance of serious harm amounting to persecution if returned to Malaysia and, as such, determined that the applicant did not meet the criteria for protection under s 36(2)(a) of the Act (at [95]-[96]). The Tribunal also considered complementary protection under s 36(2)(aa) of the Act (at [97]) but found that there was no real chance that the applicant would suffer serious harm if returned to Malaysia (at [99]).
It cannot be said on the evidence that any error arises in this regard. In the circumstances of this matter, and according to the authorities canvassed above, there is nothing in the Tribunal’s decision that can, in any way, be described as arbitrary, capricious, without common sense, plainly unjust, or lacking an evident and intelligible justification.
Ground 6, accordingly, fails.
Ground 9
Ground 9 states:
I feel that I have not been listened to and do not understand why my visa was refused and would like a chance to put forward my side of the situation.
Arguably, although not entirely clear, the applicant’s concerns here relate to “procedural fairness” – ie, that he wasn’t given an adequate opportunity to “present his case”.
The Court disagrees with the applicant’s assessment of what occurred in this regard.
The applicant’s application was lodged with the Tribunal on 2 March 2017 (CB 92-93). The Tribunal’s decision was made on 27 August 2020 (CB 149). The applicant had over three years to make any relevant submissions to the Tribunal.
The applicant attended two hearings before the Tribunal and was given an opportunity to make both oral and written submissions (CB 130-132). He was assisted by a Mandarin interpreter at both hearings (CB 121 & 141).
The hearing record indicates that in relation to the first hearing, the “line [was not] not clear – matter stood down and brought back with new interpreter” (CB 121).
If anything, the Tribunal’s decision to adjourn the first hearing shows a firm commitment on the part of the Tribunal to ensuring that the applicant could, indeed, “speak” and participate in the hearing without disadvantage.
The second hearing was held via video conference.
It is noted that no objection was raised to the second hearing being conducted via video conference. As per the principles relevant to s 429A of the Act, it was both fair and reasonable for the Tribunal to proceed in this manner. The Court further notes there is no evidence that conducting the hearing via video conference caused any prejudice.
It is also noted that the second hearing ran for more than two hours (starting at 9:50am and ending at 11:54am (CB 141). This is a significant period of time and reflects the Tribunal’s commitment to carefully analysing the evidence before it and allowing the applicant to respond to any credibility concerns. Here, the Tribunal assessed the applicant’s “original” protection claims and, when it was evident that the applicant and had effectively abandoned them, allowed him to “re-phrase” his protection concerns. Those concerns were then assessed, again forensically – with the applicant given ample opportunity to address the Tribunal’s conclusions about the evidence presented (as relevant to those new concerns).
As noted above, adverse information was also put to the applicant pursuant to s 424AA of the Act and the applicant responded to this information at the hearing (CB 143).
There is no evidence before the Court that the applicant was not given the opportunity “to present his case”. Indeed, the Tribunal here appears to have done everything it could have to ensure that the applicant was heard and given an opportunity to speak. The applicant was aware of the issues that were to be assessed and given ample opportunity to clarify or bolster his position. Overall, the applicant was given a real and meaningful opportunity to present arguments and give evidence as required by s 425 of the Act.
Ground 9, accordingly, fails.
Otherwise – bias
Before this Court, the applicant seemed to suggest that the Tribunal was “biased” because the Tribunal “seemed reluctant to take his case” and “appeared to have already made up its mind”.
In relation to any concerns about bias, it is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that:
(d)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(e)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
The applicant has not advanced any evidence in support of his assertion that the Tribunal “had already made up its mind”. Without a transcript of the hearing the Court is confined to determining from the face of the decision record if bias arises in relation to this matter.
Nothing on the face of the decision record suggests that the Tribunal displayed actual or apprehended bias. The second Tribunal hearing went for approximately 2 hours. The Tribunal explored with the applicant the claims made in his visa application, as well as those made at the hearing. In particular, the Court notes that at [52] the Tribunal made an attempt to explore with the applicant any chance of harm he might face at the hands of his aunt. This was done comprehensively and indicates that the Tribunal was open to exploring any possible matters that arose in the course of the applicant’s oral evidence and assessing them in the context of the relevant visa criterion.
No error arises in this regard.
CONCLUSION
The applicant’s application for judicial review filed on 25 September 2021 has failed to identify any jurisdictional error. The Court is otherwise unable to identify any jurisdictional error in the Tribunal’s decision.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 31 August 2021
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