ETS19 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 249
•27 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ETS19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 249
File number(s): SYG 3153 of 2019 Judgment of: JUDGE KAUR-BAINS Date of judgment: 27 February 2025 Catchwords: MIGRATION – judicial review – protection visa – alleged failure to consider a claim – alleged misconstruction of the law – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 476, 477 Cases cited: BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095
Craig v South Australia (1995) 184 CLR 163
Hamod v New South Wales [2011] NSWCA 375
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585
SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445
Division: Division 2 General Federal Law Number of paragraphs: 34 Date of hearing: 19 February 2025 Place: Sydney Solicitor for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr M Cleary Solicitor for the First Respondent: Clayton Utz Solicitor for the Second Respondent: Submitting Appearance save as to costs ORDERS
SYG 3153 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ETS19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KAUR-BAINS
DATE OF ORDER:
27 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application is amended to seek a writ of mandamus directed to the Tribunal requiring it to determine the applicant’s application according to law.
2.The application is dismissed.
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
Judge Kaur-Bains
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 5 November 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to refuse the applicant a protection visa (visa). The application failed to seek an order for a writ of mandamus directed to the Tribunal requiring it to determine the applicant’s application according to law. Leave was granted to amend the application to seek such a writ.
This Court has jurisdiction to determine this matter pursuant to s 476 of the Migration Act 1958 (Cth) (Act). The application for review has been brought within the time set out in s 477 of the Act.
The following issues arise for determination:
(a)Failure to consider a claim – Whether the Tribunal considered what happened to the applicant in Malaysia in 2007 when he alleged he was involved in an altercation with some customers, who were said to be members of a gang, after which time he could not stay in one place and moved around to avoid the gang.
(b)Failure to consider a claim – Whether the Tribunal considered what would happen to the applicant if he returned to Malaysia.
(c)Misconstruction of the law – Whether the Tribunal correctly construed the law relating to serious harm.
For the reasons set out below, I find the applicant has not demonstrated jurisdictional error.
DELEGATE’S DECISION
The delegate summarised the applicant’s claims for protection as follows:
The applicant claims that he left Malaysia because he was involved in a truck accident which killed six members of a ‘gangster’s leader’ family.
The applicant claims that when he was in Malaysia the gangster demanded he pay a sum of money to the gangster’s family or he would be killed.
The applicant claims that when he was in Malaysia ‘they’ threatened him with a knife, ‘knocked down’ his car and stole his wallet.
The applicant claims that if he returns to Malaysia and does not pay the money to the gangster he will be killed.
The applicant claims that the Malaysian authorities would not be able to protect him because they are corrupt and work in collusion with the gangsters.
The delegate noted the applicant’s claim to fear harm from gang members in Malaysia was not such that he was a person with a ‘well-founded fear of persecution’ for reasons of ‘race, religion, nationality, membership of a particular social group or political opinion’ as required under s 5J of the Act (Court Book (CB) 41).
Similarly, the delegate found the applicant was not owed complementary protection as there was not a ‘real risk’ he would face ‘significant harm’ as a ‘necessary and foreseeable consequence of being removed to Malaysia’ (CB 42). The delegate found, given country information, the applicant would be adequately protected from the gang by the Royal Malaysian Police and other Malaysian authorities (CB 42).
TRIBUNAL’S DECISION
On 23 October 2019, the applicant appeared before the Tribunal, assisted by an interpreter in the Mandarin language (CB 78).
Resiling from Previous Claims
At the hearing, the applicant resiled from the claims he had previously made to the delegate as summarised at [5] of this judgment ([30] of the reasons). The applicant claimed he hired a man to write his application, telling him what to include ([33] of the reasons). As the applicant did not read English well, he did not realise the man had included ‘an entirely different and completely false story’ ([33] of the reasons).
New Claims
At the hearing, the applicant raised new grounds which the Tribunal set out at [36] of the reasons. The applicant said in 2007 he worked at a table tennis bar. The applicant said some customers, who were members of a gang, hit him causing him to break his leg and be hospitalised for several weeks. The applicant said he asked the customers to compensate him, but they refused, and as a result the applicant ‘made some kind of [unspecified] trouble for the customers’. The applicant said after this he could no longer stay in one place as the gang would make trouble for him.
The applicant said he did not have any short-term fears about returning to Malaysia ( [38] of the reasons). The applicant said if he remained in one location the gang would find him and ‘he is not really sure what will happen’ ( [38] of the reasons).
The Tribunal found ‘good reasons to be sceptical about the applicant’s new evidence’, but found even taking the new evidence at its highest, it did not establish any basis for protection ([53], [60] of the reasons). This was for the reason, the persecution the applicant claimed to fear was in relation to a dispute over the alleged events in 2007 which could not establish the applicant had a ‘well-founded fear of persecution’ as required by s 5J of the Act for reasons of ‘race, religion, nationality, membership of a particular social group or political opinion’ ( [55] and [56], [58] of the reasons).
Further, the applicant did not have a ‘well-founded fear of persecution’ as he would not be seriously harmed if returned to Malaysia ([59] of the reasons). Similarly, the Tribunal found the applicant was not entitled to complementary protection under s 36(2)(aa) of the Act, as there was not a ‘real risk’ he would face ‘significant harm’ as a ‘necessary and foreseeable consequence of… being returned to Malaysia’ ([65], [67] of the reasons).
RELEVANT LAW
Relevantly, at the material time, the Act provided as follows:
Section 5H Meaning of refugee
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality — is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality — is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
…
Section 5J Meaning of well-founded fear of persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
…
(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
…
Section 36 Protection visas - criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm [complementary protection]; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
…
GROUNDS IN THE APPLICATION
The applicant’s application filed on 2 December 2019 contained the following grounds for judicial review:
Jurisdictional errors are established.
1. Tribunal member did not correctly understand what had happened to me in Malaysia, which caused adverse decision against me.
2. Tribunal member did not correctly consider what would happen to me if l return to Malaysia.
3. Relevant regulations related to serious harm were not applied properly.
(as per original)
CONSIDERATION
The applicant appeared at the hearing before me as a litigant in person, assisted by a Mandarin interpreter. Mindful of the Court’s duty to unrepresented litigants (Hamod v New South Wales [2011] NSWCA 375 at [309] to [316]; SZRUR v Minister Immigration and Border Protection (2013) 216 FCR 445 at [37]), I explained to the applicant the role of the Court in undertaking judicial review. I ensured the applicant was in possession of all relevant documents, namely the Court Book, application, supporting affidavit of the applicant filed on 2 December 2019 and the Minister’s written submissions filed on 4 February 2025. Before the hearing started the interpreter interpreted the Minister’s submissions for the applicant. The applicant did not provide any written submissions.
The applicant filed an affidavit affirmed on 29 November 2019 in which he said the following:
1. I was hit by the gang and was hospitalised.
2. I negotiated compensation with the gang but failed.
3. The gang made trouble for me continuously wherever I moved.
4. I feared to return Malaysia, because the gang would locate me and make trouble for me.
The Minister objected to this evidence on the basis it raised factual matters not relevant to any grounds of judicial review but rather was seeking to adduce fresh evidence to engage this Court in merits review. I accepted the Minister’s submissions and ruled the affidavit inadmissible.
Ground 1
In relation to ground 1, the applicant alleges the Tribunal member did not correctly understand what had happened to him in Malaysia. I asked the applicant to expand upon this, which the applicant did and said ‘So, I experienced an accident. I called the police, but the police told us, “It’s a small town here, so even you call us, you reported to us, what we can do is to put this person in detention for a few days and after some days we still need to release him.”’ (Tp 6:1- 5). He said the accident happened in 2007 at his workplace where he was injured and admitted to hospital (Tp 6.9-14).
I referred the applicant to [36] of the Tribunal’s reasons, where the Tribunal said:
In 2007 the applicant was working as a cashier at what he described as a table-tennis bar. Some customers lost money in a game and hit the applicant. As a result, the applicant suffered a broken leg and was hospitalised for a few weeks. After he was discharged from hospital the applicant wanted to negotiate proper compensation from the customers but they wouldn't pay. The applicant then made some kind of trouble for the customers which he was unable to specify and then he left for Singapore. The applicant never explained, despite being given a number of opportunities, what it was he feared these customers would do to him if they found him. However, he did say that from that point he couldn't stay in one place. The applicant claimed that if he stayed in one place for a long time that 'the gang make trouble for me so I move'. The gang referred to were the customers he had a dispute with in 2007.
I asked the applicant whether he had told the Tribunal the matters set out at [36] of the Tribunal’s reasons and he confirmed he had (Tp 6.25-7.25). I then referred the applicant to [37] of the reasons which said:
When asked how this gang was able to locate him in places like Kuala Lumpur, the applicant said he had no idea. Asked how he knew they had located him he said 'if I stayed in one place my vehicle would be damaged or scratched'. The applicant agreed with the proposition that he 'guessed' that it was the gang that damaged his vehicle.
The applicant confirmed he had told the Tribunal the matters recorded at [37] of the reasons (Tp 7.27-34). I referred the applicant to [38] of the reasons, which recorded as follows:
When asked what he feared if he had to go back to Malaysia, the applicant said he did not have any fear in the short term but if he stayed in one place 'they' would locate him and he is not really sure what will happen.
Again, the applicant confirmed he told the Tribunal the matters set out at [38] of the reasons (Tp 7.36-8.4).
I asked the applicant why he said the Tribunal did not correctly understand what happened to him in Malaysia as set out in ground 1 and the applicant said his agent had prepared the application for him and he did not really know.
The Minister submits, contrary to what the applicant alleges, the Tribunal did in fact correctly understand the applicant’s claim and identified the claim correctly at [36] to [38] of the reasons.
I find no jurisdictional error is established by ground 1 because the applicant at the hearing before me, in fact, confirmed the Tribunal did correctly understand his claim as articulated at [36] to [38] of the reasons. I find the Tribunal actively engaged in considering the applicant’s said claims from [53] to [66] of the reasons and made the findings as summarised at [11] to [13] of this judgment.
Ground 2
By ground 2, the applicant asserts the Tribunal member did not correctly consider what would happen to him if he returned to Malaysia. In relation to this ground, the applicant said ‘After the incident happened, for a very long period of time, how do I put it, those people would come and harass me. I came here for many years. I’m not sure that would continue if I return.’ (Tp 8.44-46). I referred the applicant to [38] of the Tribunal’s reasons, set out at [23] of this judgment, and asked whether that is what he told the Tribunal. The applicant confirmed he had told the Tribunal those matters (Tp 9.1-4).
I find no jurisdictional error disclosed by ground 2, as the Tribunal did in fact consider what would happen to the applicant if he returned to Malaysia, as follows:
65. The evidence which the applicant gave at his oral hearing did not provide any basis for concluding that as a necessary and foreseeable consequence of the applicant being returned to Malaysia that there is a real risk that the applicant will suffer significant harm.
66. In his oral evidence the applicant indicated that he had no fears in the short term if he was returned to Malaysia and he was not really sure what would happen if 'they' located him. Based on the history he gave, there did not appear to be any risk of significant harm befalling the applicant if he returned to Malaysia. He had suffered one injury in 2007 as a result of a dispute in a bar. In the years which followed he had not been the subject of any threats of violence or any actual violence. The most hostile act he could point to was damage to a motor vehicle which he guessed was inflicted by the customers who he claimed were pursuing him. Nothing in the applicant's account provided 'substantial grounds' for believing that as a necessary and foreseeable consequence of the applicant being removed back to Malaysia that he would suffer significant harm.
Ground 3
In relation to ground 3, the applicant asserts the relevant regulations relating to serious harm were not applied properly. I have interpreted this ground to mean the Tribunal misconstrued the relevant legislation such that it misconceived the nature of the function it was performing or the extent of its powers (Craig v South Australia (1995) 184 CLR 163 at [177]-[178]). In Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [74] to [75], the plurality characterised misconstruction of a statute which leads a court to misapprehend the limits of its powers as an error which was jurisdictional in nature.
The Minister contends the Tribunal did properly construe and apply the relevant law being the provisions identified at [14] of this judgment.
I find ground 3 does not disclose jurisdictional error because the Tribunal did in fact properly construe the relevant law, which it identified at [46] to [52] of the reasons and correctly applied the law to the facts of the applicant’s case at [53]-[67] of the reasons.
Given that the applicant was self-represented, I reviewed the reasons of the Tribunal to determine whether there was any self-evident jurisdictional error: BGZ15 v Minister for Immigration and Border Protection [2017] FCA 1095 per Flick J at [11]. I did not find any obvious jurisdictional error in the Tribunal’s reasons.
CONCLUSION
As no jurisdictional error has been disclosed, the application must be dismissed.
COSTS
I will hear the parties as to costs.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains. Associate:
Dated: 27 February 2025
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