Etg17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 313

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

ETG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 313

File number(s):	MLG 2297 of 2017
Judgment of:	JUDGE A KELLY
Date of judgment:	3 May 2022
Catchwords:	MIGRATION – Protection (Class XA) (subclass 866) visa – judicial review of decision of Administrative Appeals Tribunal – claims to threats from loan sharks – additional claims to risk of harm from same-sex partner – credibility – application dismissed.
Legislation:	Migration Act 1958 (Cth), ss 36, 65, 474, 476
Cases cited:	Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division:	Division 2 General Federal Law
Number of paragraphs:	23
Date of hearing:	12 April 2022
Place:	Melbourne
Applicant:	In person
Solicitor-advocate for the First Respondent:	Ms M. Stone
Solicitor for the First Respondent:	Mills Oakley

ORDERS

MLG 2297 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

ETG17

Applicant

AND:

MINISTER FOR IMMIGRATION, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE A KELLY
DATE OF ORDER:	3 MAY 2022

THE COURT ORDERS THAT:

1.Pursuant to ss 202-203 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.

2.The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

3.The application dated 24 October 2017 be dismissed.

4.The applicant pay the costs of the first respondent fixed in the sum of $4,125.

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).

REASONS FOR JUDGMENT

KELLY A, J

Introduction

1. By application filed 24 October 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 26 September 2017 affirming a decision of a delegate of the first respondent (Minister) refusing to grant a Protection (Class XA) (subclass 866) visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).

2. For the reasons that follow, the application should be dismissed.  In substance, the applicant has not demonstrated that the decision of the Tribunal, or the process by which it arrived at its decision, was tainted by jurisdictional error.  To the contrary, the Tribunal considered in detail the applicant’s claim that she faced a real risk of significant harm by reason of her suggested failure to have repaid certain debts to loan sharks (as detailed in her protection visa application) or by reason of the failure of a same-sex relationship or a consequent fear of harm she held from her former partner (as suggested for the first time in the course of the Tribunal hearing).

   Background

3. The background is gleaned from the Minister’s submissions together with my examination of the materials in the court book and those documents that have been filed in this Court.

4. The applicant, a female citizen of Malay ethnicity and Islamic faith, now aged 35 years, first arrived in Australia on 9 March 2016 as the holder of a Visitor (Electronic Travel Authority) (subclass 601) visa.  The applicant stated that she was not married, had not travelled elsewhere in the world and had come to Australia to obtain employment.  Upon arrival at the airport, the applicant met Malaysian people who recommended her finding employment in north western Victoria.  As such, the applicant moved to a town in north western Victoria and attained employment picking fruit.

5. On 16 May 2016, the applicant lodged an application for the visa with the then Department of Immigration and Border Protection (Department) and attached her passport and identity card.  The applicant claimed protection on account of a debt that remained outstanding with loan sharks (known as “Ah Long”) in Malaysia.  She had borrowed this money to renovate her restaurant and claimed Ah Long had been threatening to kill her for the non-payment of the debt.  Also, the applicant claimed to have unpaid debts with family members.

6. On 6 September 2016, a delegate of the Minister, not being satisfied that the applicant was a person in respect to whom Australia had protection obligations, refused to grant the visa.  The  Minister found there were effective protection measures available to the applicant and that she could obtain such protection if she returned to Malaysia. 

   Tribunal’s decision

7. On 22 September 2016, the applicant lodged an application for review of the decision by the Tribunal attaching the refusal letter of the protection visa from the Department and requesting the review of her ‘bridging’ visa.  On 28 September 2016, the Tribunal acknowledged the application for review and informed the applicant that if she sought to review a decision other than the decision to refuse to grant the protection visa, to contact the Department by 12 October 2016.  The Tribunal added that if no contact was made it would proceed to review the protection visa refusal decision.

8. On 24 August 2017, the applicant attended a Tribunal hearing, doing so with the assistance of a Malay interpreter.  During the hearing, the applicant raised another claim for protection.  She explained that she had been in a relationship with a Malaysian woman in Malaysia and Australia.  The applicant submitted that after the relationship ended the woman had threatened to kill her.  Further, the applicant claimed the woman was willing to extort her for RM5000.  

9. On 26 September 2017, the Tribunal made a decision affirming the Minister’s decision to refuse to grant the protection visa and provided a statement of reasons for doing so (Reasons). 

10. At [60] of its Reasons, the Tribunal summarised that it had not accepted each of the claims contained in, or to be discerned from, the protection visa application.

11. As concerned the applicant’s credibility, set out below are the Reasons at [61]–[63]:

    61.On the basis of the credibility findings above, it follows the Tribunal does not accept that were the applicant to return to Malaysia now or in the reasonably foreseeable future, she or her family will face any of the difficulties she claims, including that she will be killed at the hands of Ah Long or any other individual due to an outstanding debt.  The Tribunal also does not accept that the applicant has been threatened including with death, harassed on the phone, followed by Chinese men harassing her for the loan, or that she faces any of the difficulties claimed in any manner whatsoever for the reasons she claims.

    62.As the Tribunal does not accept that the applicant has an outstanding debt to repay to Ah Long it follows that the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm were she to return to Malaysia now or in the reasonably foreseeable future at the hands of Ah Long and the applicant does not satisfy the criteria in section 36(2)(a).

    63.Section 36(2)(aa) refers to a 'real risk' of an applicant suffering significant harm. The 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear' in the refugee definition: MIAC v SZQRB [2013] FCAFC 33. Based on the findings and reasons earlier, 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, there is a real risk she will suffer significant harm, being that she will be arbitrarily deprived of her life, that the death penalty will be carried out on her, that she will be subjected to torture, that she will be subjected to cruel or inhuman treatment or punishment or that she will be subjected to degrading treatment or punishment.

12. As concerned her additional claim, set out below are the Reasons at  [72]–[73]:

    72.As the Tribunal has rejected the applicant's claims about having been in an exploitative lesbian relationship, it follows that the Tribunal finds there is not a real chance she will suffer serious harm at the hands of her ex-partner if she returns to Malaysia now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution on the basis of any claimed lesbian relationship and therefore does not satisfy the criterion set out in s.36(2)(a) of the Act.

    73.The Tribunal has also considered whether the applicant meets the complementary protection criterion under s.36(2)(aa) of the Act on the basis of her claims to be in a financially exploitative relationship with her ex lesbian partner. For the same reasons already articulated above, the Tribunal finds that the applicant's credibility is so marred as to have poisoned the well. Accordingly, 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, there is a real risk she will suffer significant harm, being that she will be arbitrarily deprived of her life, that the death penalty will be carried out on her, that she will be subjected to torture, that she will be subjected to cruel or inhuman treatment or punishment or that she will be subjected to degrading treatment or punishment, on account of her past relationship with a lesbian partner who is trying to profit from the applicant so that the applicant can be released from the relationship. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa) of the Act.

    Procedural history

13. On 24 October 2017, the applicant filed an application for judicial review of the Tribunal’s decision together with an affidavit affirmed by the applicant to which was exhibited a copy of the Reasons but adducing no further evidence in support of the application for judicial review.  

14. By way of response, the Minister opposed the application and all orders sought on the basis that the applicant had raised no arguable case for the relief sought.  The Minister further sought costs upon dismissal of the application.    

15. On 27 June 2018, an order was made by a registrar of this Court, by consent, for the parties to file and serve documents prior to hearing; the application be listed for a show cause hearing.

16. On 3 February 2022, an order was made by a registrar of this Court vacating the show cause hearing and listed the matter for final hearing.

    Judicial review

17. If the decision is a privative clause decision, it is not amenable to judicial review: Act, s 474(2). A decision upon the merits review of a visa application is not amenable to judicial review unless it is vitiated by jurisdictional error: Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76].

    Grounds of review

18. The grounds of review in the application for review read:

    1.I owe RM70,000 to loan sharks in Malaysia for which I have been threatened to be killed, on several occasions.

    2.My business was also disrupted by money lenders.

    3.Despite being aware of loan sharks and the operations in Malaysia, Tribunal failed to understand the intensity of the situation and emphasising on function government in Malaysia gave little consideration to my life and circumstances.

    4.Loan sharks are a mafia and have a huge network all around Malaysia from which Malaysian government cannot provide personalised protection, and money lending business being illegal government hardly helps the victims.

    5.Last time I left Malaysia I had to plan very secretly but if I go back the loan sharks will definitely restrict me from leaving the country and then my life would be at their mercy.

    6.As the Tribunal has not correctly assessed criteria for my protection, I hope the court would give due importance to my life and will assess the circumstances and risk to my life in Malaysia and the error made by DIBP and Tribunal.

    As is immediately apparent, nothing in these grounds contains any complaint respecting the applicant’s new claim to fear harm arising from the failure of her same-sex relationship.

    Consideration

19. As the applicant was self-represented before me, I have examined the Minister’s submissions, materials in the court book together with the Tribunal’s Reasons.

20. I agree with the Minister that Grounds 1, 2, 4 and 5 merely restate the applicant's claims for protection and do not reveal any jurisdictional error by the Tribunal.

21. Similarly, I agree that Grounds 3 and 6 do no more than disagree with the findings of the Tribunal and make no allegation of jurisdictional error.  These Grounds are otherwise wholly unparticularised and for that reason alone are liable to be rejected.  In the course of the hearing before me, I attempted to discern from the applicant’s submissions whether she had any substantive complaint in relation to either the process by which the Tribunal had arrived at its decision or the decision itself.  The applicant made no such submission identifying any substantive complaint respecting such process or decision (having been expressly invited to do so on two occasions).  So too, I discern no such error.

22. Finally, insofar as Ground 6 complains about the decision of the delegate, the Court does not have jurisdiction to review that decision: Act, s 476(2)(a).

23. There being no error in the decision the subject of this application and no complaint being made in relation to the process by which it was arrived at, the application should be dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly.

Associate:

Dated:       3 May 2022