Eue17 v Minister for Immigration and Border Protection

[2022] FedCFamC2G 368

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EUE17 v Minister for Immigration and Border Protection [2022] FedCFamC2G 368

File number(s):	MLG 2317 of 2017
Judgment of:	JUDGE RILEY
Date of judgment:	4 April 2022
Catchwords:	MIGRATION – Administrative Appeals Tribunal – protection visa – citizen of Malaysia – Chinese ethnicity – loan sharks – no jurisdictional error.
Division:	Division 2 General Federal Law
Number of paragraphs:	12
Date of hearing:	4 April 2022
Place:	Melbourne
Counsel for the First Applicant:	In person
Counsel for the Second Applicant:	No appearance
Advocate for the First Respondent:	Julia Hodkinson
Counsel for the Second Respondent:	No appearance
Solicitor for the Respondents:	Sparke Helmore Lawyers

ORDERS

MLG 2317 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EUE17
First Applicant

EUF17
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

ORDER MADE BY:	JUDGE RILEY
DATE OF ORDER:	4 APRIL 2022

THE COURT ORDERS THAT:

1.The title of the proceeding be amended so that the name of the first respondent is “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.The application filed on 27 October 2017 be 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).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE RILEY:

1. This is an application to review a decision of the Administrative Appeals Tribunal. The first applicant came to Australia on 21 February 2010 and applied for a protection visa on 4 May 2015. The second applicant is the first applicant’s wife. She does not make any protection claims of her own.

2. The Minister’s delegate refused first applicant’s protection visa application. The Tribunal affirmed the delegate’s decision. The applicant sought review in this court. The court remitted the matter to the Tribunal to reconsider on the basis that the Tribunal, as first constituted, had not considered the applicant’s claims based on his Chinese ethnicity. On remission, the Tribunal conducted another hearing and, again, affirmed the delegate’s decision.

3. The first applicant, who I will refer to as “the applicant”, is a citizen of Malaysia. He claims to fear persecution on the basis of his Chinese ethnicity and on the basis that he had borrowed some money from loan sharks and not repaid them. As a consequence, he claimed that they were threatening to harm him.

4. The Tribunal considered country information relating to the situation of ethnic Chinese people in Malaysia. The Tribunal considered, on the basis of that country information, that the applicant’s fear of harm on the basis of his Chinese ethnicity was not well-founded. The Tribunal considered the applicant’s claims about corruption in the police. However, the Tribunal considered, on the basis of country information, that the applicant would receive protection from the police if he sought it.

5. The Tribunal considered that the applicant’s claims about loan sharks were not credible. The tribunal considered that the claims were not credible because:

   (a)the applicant could not say how much he owed;

   (b)the loan sharks, according to the applicant, knew his father’s whereabouts but had never harmed him; and

   (c)the applicant and his wife gave inconsistent evidence about the amount of the loan.

6. In these circumstances, the Tribunal affirmed the delegate’s decision.

7. The applicant filed an application in this court. It has not been amended. It appears to have been prepared without any substantial legal assistance. The applicant did not file written submissions, although he was permitted to do so by orders made by a registrar. The applicant appeared at the hearing today without the benefit of legal assistance. His wife also appeared but did not wish to address the court. 

8. The first ground of the application is:

   Jurisdictional error has been made. The tribunal does not accept my claims on the ground of irrelevant information and makes wrong conclusions.

9. The applicant said at the hearing before this court that he could not say anything in support of that ground. He said, simply, that if he was sent back to Malaysia, he will have a lot of trouble and he asked the court to reconsider the decision. The applicant did not identify any irrelevant information that the Tribunal took into account. It does not seem to me that the Tribunal did take into account any irrelevant information. It seems to me that the Tribunal’s conclusion was open to it on the material before it. Essentially, this ground is seeking merits review, which this court is not authorised to provide. The court is not permitted to assess whether the applicant will have a lot of trouble when he goes back to Malaysia. The court can only see if the Tribunal has made a jurisdictional error. I do not consider that the Tribunal has made a jurisdictional error as alleged in ground 1.

10. The second ground in the application is:

    Tribunal member does not consider my case unfairly and properly. Tribunal did not properly consider whether I would be harmed if I returned to Malaysia.

11. Again, the applicant did not elaborate on this ground in oral submissions. The Tribunal decision shows that it did consider whether the applicant would be harmed if he returned to Malaysia. The Tribunal considered the various elements of the applicant’s claims and gave reasons for rejecting those claims. The reasons given by the Tribunal, in my view, were open to it. Ground 2 is not made out.

12. The applicant has not identified any jurisdictional error on the part of the Tribunal. I have looked at the material and have been unable to identify a jurisdictional error myself. In these circumstances, the application will be dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Riley.

Associate:

Dated:       16 May 2022