Err17 v Minister for Immigration

[2019] FCCA 2716

FEDERAL CIRCUIT COURT OF AUSTRALIA

ERR17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2716

Catchwords:
MIGRATION – Application for judicial review – citizen of Malaysia – applicant arrived in Australia on tourist visa – application for a protection visa – former triad gang member – Administrative Appeals Tribunal decision found no risk of serious harm – jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.5LA

Applicant: ERR17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2257 of 2017

Judgment of: Judge Riethmuller

Hearing date: 1 August 2019

Date of Last Submission: 1 August 2019

Delivered at: Melbourne

Delivered on: 1 August 2019

REPRESENTATION

The Applicant appeared In Person.

Counsel for the Respondents: Mr Goodwin

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2257 of 2017

ERR17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘AAT’) made on 14 September 2017. The applicant is a citizen of Malaysia who came to Australia in November 2015. He arrived on a visitor visa which ceased in February 2016. On 30 May 2016 he applied for a protection (subclass 866) visa.

2. On 8 September 2016 a delegate of the Minister refused to grant the applicant a protection visa. The applicant then sought a review by the AAT. The AAT refused the application in September 2017. After that, on 19 October 2017, the applicant applied to this Court for judicial review of the AAT decision.

3. The applicant said that he was at risk in Malaysia because he was a former triad gang member. He said that his job in the gang was to collect money from their moneylending business. The AAT outlined his case at paragraph 19 saying:

   19. The applicant made the following claims for protection in his application for Protection he submitted to the Department of Immigration and Border Protection:

   ·He claims he left Malaysia because he was a former Triad member and the head of the Triad did not approve the applicant’s request to leave the gang.

   ·The applicant claims that sworn Triad members cannot resign or exi[t] the gang; they can only die or be murdered.

   ·The applicant claims that he managed to escape the gang and came to Australia.

   ·The applicant claims that he will not be safe in Malaysia as the Triad group will not stop looking for him. He is certain he will be killed and his family’s life will be jeopardised if he lives with them.

   ·The applicant claims that Triad members are in the whole country and it is very easy for them to find him.

   ·The applicant does not trust the authorities in Malaysia because they are connected with the Triad and he will not be protected.

4. The AAT generally accepted the applicant’s version about his history:  see paragraphs 55 to 57. 

5. The Tribunal ultimately concluded that the applicant was not at real risk of serious harm because he would be able to obtain sufficient protection from the Malaysian police and legal system. The AAT considered the legal test in section 5la of the Migration Act1958 (Cth). The AAT also considered a range of country information about gangs and law enforcement in Malaysia.

Grounds

1. The applicant set out three grounds for judicial review, as follows:

   1. The Tribunal failed to properly consider all of my claims.

   2. The Tribunal committed jurisdictional error by taking into account irrelevant considerations.

   3. The Tribunal referred to my willingness to approach the Authorities for identifying documents being a strong support for the contention that I did not fear harm in Malaysia.

Ground 1

1. In support of ground 1, the applicant said that the AAT had not considered whether or not to grant him work rights and had not taken into account that he was detained in Australia for a period because he was working unlawfully. 

2. In the context of this case, whether or not the applicant had received work rights in Australia, or had breached his visa by working, has no logical connection to whether or not he is entitled to a protection visa.

3. As a result this ground cannot succeed.

Ground 2

1. The applicant was unable to point to anything that he says was irrelevant that the AAT took into account. 

2. As a result this ground cannot succeed.

Ground 3

1. It was difficult to understand what ground 3 meant in the context of this decision by the AAT. The Tribunal did consider whether or not the applicant was prepared to go to the police in his circumstances in Malaysia: see paragraph 58 of the decision. It was clearly appropriate for the AAT to consider whether or not the applicant felt able to go to the police in his circumstances. 

2. The applicant was not able to explain what he meant by this ground when he appeared and made oral submissions.

3. In these circumstances, I am not persuaded that this is a ground for judicial review.

4. At the hearing before me, I asked the applicant if there were any other grounds that he wished to argue. The applicant again raised his request for work rights and asked that I consider giving him a visa because his family is here and he wishes to support his family. These matters are not relevant to the question of whether he receives a protection visa.

5. In Australia, judges hearing judicial review application have no discretion to grant visas, only to decide whether or not to set aside an AAT decision and send the case back for the Tribunal to decide it again. 

6. As a result, the applicant has not established a ground for judicial review and I must dismiss his application.

[Further argument ensued]

Costs

1. In this matter the Minister has been successful. Ordinarily, the applicant should pay the Minister’s costs if the applicant is not successful. There is nothing unusual about the costs in this case. The amount of costs sought is reasonable as it is the scale fee. I will, therefore, order that the applicant pay the Minister’s costs. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:  

Date:  25 September 2019