Evv17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 332

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EVV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 332

File number(s):

MLG 2368 of 2017

Judgment of:

JUDGE BURCHARDT

Date of judgment:

10 May 2022

Catchwords:

MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal – applicants seeking protection visa but application disclosing only economic basis for desire to live in Australia – Tribunal’s decision clearly open on the materials – no jurisdictional error – application dismissed.  

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Craig v South Australia (1995) 184 CLR 163, 175

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76]

Division:

Division 2 General Federal Law

Number of paragraphs:

31

Date of hearing:

4 May 2022

Place:

Melbourne

The Applicants:

The Applicants did not appear

Advocate for the Respondents:

Ms Hodkinson

Solicitor for the Respondents:

Sparke Helmore

ORDERS

MLG 2368 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EVV17

First Applicant

EVW17

Second Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	10 MAY 2022

THE COURT ORDERS THAT:

1.Application dismissed.

2.The applicants pay the first respondent’s costs fixed at $5,000. 

3.The name of the first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

THE COURT NOTES THAT:

A.These Orders have been amended pursuant to rule 17.05(2)(h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021.

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 BURCHARDT

INTRODUCTION

1. By originating application dated 3 November 2017, the applicants seek judicial review of a decision of the Administrative Appeals Tribunal made on 9 October 2017 affirming a decision of a delegate of the first respondent (the Minister) refusing to grant a Subclass XA-866 Permanent Protection visa pursuant to s 65 of the Migration Act 1958 (Cth).

2. The application should be dismissed.  

   PRELIMINARY

3. When the matter was called on the applicants did not appear.  The court has been provided with an affidavit of Madlin Richardson sworn 3 May 2022, which indicates the endeavours made by the first respondent to ensure that the applicants were served with the relevant notices of hearing and court book.  These were sent to the email address on file for the applicants and Counsel for the Minister has assured me that they did not bounce.  In the circumstances, I decided to proceed with the matter.  I also determine to dispose of the matter on its merits rather than to dismiss it due to the non-attendance of the applicant.  I adopted that course because the materials on the court file (which I had already read) suggested in the strongest possible terms that the claim was devoid of merit.  It is appropriate that it be bought to a conclusion now. 

   BACKGROUND

4. 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.

5. The applicants, Malaysian citizens of Chinese ethnicity and Buddhist faith, first came to Australia on 11 October 2016 holding UD-601 Electronic Travel Authority visas.  The first applicant is 44 years old.  The second applicant, the first applicant’s son, is aged 21 and joined to the visa application.  

6. On 19 December 2016, the applicants lodged an application for the visa with the then Department of Immigration and Border Protection and attached their passports.  The first applicant stated she sought protection in Australia because of the economic climate in Malaysia.  

7. As the second applicant was a minor at the time of the lodgement of the visa application, the Department required consent to acquire fingerprints and a digital photograph which was given on 14 February 2017.  

8. On 22 March 2017, the Minister made a decision to refuse to grant the visa.  The decisional record of the Minister’s delegate found they were not satisfied the first applicant feared harm for a reason in s 5J(1)(a) of the Act or that she faced a real risk of significant harm on the basis of the economic situation in Malaysia.  

9. On 4 April 2017, the applicants applied for a review of the delegate’s decision.  

10. On 15 September 2017, the Tribunal invited the applicant to attend a hearing of merits review, scheduled for 4 October 2017, to give evidence and present arguments.  On 27 September 2017, the Tribunal received the first respondent’s response to the invitation and requested the assistance of Cantonese and Mandarin interpreters for the Tribunal hearing.  The applicants attended the hearing assisted by only a Cantonese interpreter.  

    THE MATERIALS BEFORE THE TRIBUNAL

11. Before coming to the Tribunal’s decision, it is appropriate to look at what at what was actually before the Tribunal itself.  In the original application filed 19 December 2016 in response to the question “Why did you leave that country(s)?” (CB32) the primary applicant stated:

    I LEAVE FROM MALAYSIA BECAUSE OF MY FAMILY’S ECONMY IS GETTING WORSE. SINCE I AM SINGLE MOTHER, IS VERY DIFFICULT FOR ME TO RAISE AND GIVE PLEASURE TO MY SON. THIS IS BECOME MORE SERIOUS PROBLEM WHEN INCREASING THE COST OF LIVING. NOW, THE COST OF LIVING IN MALAYSIA AND MY MONTHLY COMMITMENT IS HIGHER THAN MY MONTHLY INCOME. MALAYSIA IS CURRENLY FACING SOME REAL CHALLENGES, OVER THE ABOVE LOWER OIL PRICES, THE FALLING VALUE OF RINGGIT, AND A SLOWDOWN IN THE RATE OF ECONOMIC GROWTH. I HAVE MADE THE DECISION LEAVE FROM MALAYSIA TOGETHER WITH MY SON. I CAN NOT AFFORT TO LIVE IN MALAYSIA ANYMORE AS THE ECONOMY OF MY FAMILY IS GETTING WORSE. 

12. When asked on the same page “What do you think will happen to you if you return to that country(s)?” The primary applicant stated:

    IF I RETURNE TO MALAYSIA, I WOULD NOT BE ABLE TO SUPPORT AND TAKE CARE OF MY FAMILY SINCE NOW COST OF LIVING IN MALAYSIA IS HIGHER THAN MY MONTHLY INCOME. 

13. She went on to assert at CB33 that she could not relocate in Malaysia because the cost of living would be the same.  

14. At CB34 the primary applicant asserted:

    AUTHORITIES IN MALAYSIA CAN NOT PROTECT ME BECAUSE AUTHORITIES IN MALAYSIA DOES NOT INTERFERE IN THE ECONOMIC AFFIARS OF THE FAMILY. THE AUTHORITIES WILL CONSIDERED THIS ISSUES AS A FAMILY MATTER. 

15. Unsurprisingly the primary applicant’s son’s application merely said at CB57:

    I LEAVE FROM MALAYSIA BECAUSE I FOLLOW MY MOTHER TO COME HERE. 

    TRIBUNAL’S DECISION

16. On 9 October 2017, the Tribunal made a decision affirming the decision to refuse the application.  In affirming the decision to refuse the visa, the Tribunal provided a statement of reasons for doing so (Reasons), a copy of which was provided via email to the first applicant the day after. 

17. The applicants had not added anything to their original grounds of application noted above in their application to the Tribunal.  The Tribunal noted those matters at paragraph 13 and 14 of its decision (CB106). At CB107, the court noted the following evidence of the hearing of 4 October 2017 at paragraphs 15-19. 

    At the hearing the principal applicant indicated that prior to coming to Australia she lived at her parents’ home in Klang in Selangor state (the address given at question 81 of her protection visa application). She indicated that her parents are now deceased but said her older brother (of her eight siblings) lives at that address. The principal applicant indicated that she has a second, older son (aged 21 years) in Malaysia who also lives at that address.  She said her older son is a mechanic and works repairing cars.

    The principal applicant indicated that she worked part-time in Malaysia in a supermarket and in a café, doing miscellaneous duties.

    When asked why she came to Australia, the principal applicant said she came to work to earn more money to support her son’s studies. She indicated that her son is not studying in Australia at the moment but commented that she needed to work to save some money for his future studies. She indicated that while she is working in Australia her son is not.

    The Tribunal asked the principal applicant what would happen to her if she had to return to Malaysia. She replied that nothing would happen. The Tribunal asked her why, in that case, she had applied for a Protection visa. She said she wanted to remain in Australia so she could work, so that she could financially support her son’s studies. She commented that her salary is extremely low in Malaysia and it is important to support her son’s studies. She added that her son had stopped his studies in 2014 when he was 14 years old and he wished to study cookery.

    The secondary applicant indicated that he had nothing he wished to add to his mother’s comments. 

18. The Tribunal found there was no evidence that indicated the applicants would face significant harm, as set out in s 5J(1)(a) of the Act, in the circumstances they be returned to Malaysia, at 23:

    Based on the applicants’ evidence at the hearing the Tribunal finds that there is nothing to suggest that there is a real chance the applicants would suffer persecution involving serious harm for one or more of the five reasons set out at paragraph 5J(1)(a) of the Act should they return to Malaysia. The Tribunal accepts that the principal applicant is a single mother who has come to Australia to work because she wishes to be able to earn more money than she has been able to in Malaysia so she can save money to fund a course or courses of study for her younger son (the secondary applicant). However, considering the principal applicant was working in Malaysia, that she was living in the family home with her brother and her two children, including her elder son who is employed as a mechanic, and that she indicated at the hearing that nothing would happen to her if she had to return to Malaysia, the Tribunal finds that the applicants would not suffer serious harm such as significant economic hardship that threatens their capacity to subsist; denial of access to basic services, where the denial threatens their capacity to subsist; or denial of capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist, as outlined in the (non-limiting) instances of serious harm detailed in paragraph 5J(5) of the Act.

19. The Tribunal found the applicants would not suffer economic hardship, denial of access to basic services or denial of capacity to earn a livelihood of any kind that would threaten the applicants’ capacity, at 24:

    In reaching this conclusion the Tribunal has also given consideration to country information from DFAT6 (and Focus Economics as indicated) detailed below, as discussed with the applicants, which indicates that, notwithstanding some economic challenges in recent years, the Malaysian economy continues to perform reasonably well:

    •Malaysia is classified by the World Bank as an upper middle-income, export-oriented economy. In 2015 its GDP growth was five per cent and per capita GDP was over USD11, 000.

    •Economic growth in 2016 is predicted to be 4 to 5 per cent.

    •Since independence, Malaysia has transformed from a commodity-based economy, focused on rubber and tin, to a leading producer of electronic parts and electrical products and exporter of palm oil, oil and gas. Manufactured goods made up 76 per cent of Malaysia’s exports in 2012. Malaysia is ASEAN’s largest energy exporter and the government’s largest revenue source comes from the state-owned oil company Petronas. The 2015-2016 drop in oil price has negatively affected government revenues.

    •Malaysia’s economic growth has led to a significant reduction in poverty with the share of households living below the national poverty line (USD8.50 per day in 2012) falling from over 50 per cent in the 1960s to 0.28 per cent in 2016.

    •The UNDP’s Human Development Index ranked Malaysia 62 out of 188 countries in 2015, placing it in the ‘high human development’ category.

    •In December 2015, the Malaysian Department of Statistics reported a labour force participation rate of 67.8 per cent and an unemployment rate of 3.3 per cent.

    •Inflation in 2015 was reported to be 2.7 per cent, the same level as 2014 and down from 3.2 per cent in 2013.

20. The Tribunal found that there was not a real risk that the applicants would suffer significant harm due to the Malaysian economy or the cost of living in Malaysia, or for any other reason, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, at 25:

    The Tribunal concludes that the state of the Malaysian economy is not such that the applicants cannot subsist in Malaysia. The Tribunal also finds that there is not a real risk that the applicants would suffer significant harm, including being subjected to cruel or inhuman treatment or punishment; or degrading treatment or punishment, due to the state of the Malaysian economy or the cost of living in Malaysia, or for any other reason, as a necessary and foreseeable consequence of their being removed from Australia to Malaysia.

21. Accordingly, the Tribunal found that the applicants did not satisfy the criteria for the visa under ss 36(2)(a) or 36(2)(aa) of the Act, at 26:

    For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa.

    JUDICIAL REVIEW

22. 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].

23. The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the Court may consider ought to have been made.  The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error, and where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

    GROUNDS OF REVIEW

24. The applicant’s four grounds of review read:

    1.The Tribunal misconstrued the risk of significant harm as set out in s 36(2B) of the Migration Act 1958.

    The Tribunal construed erroneously the existence of risk to life of significant harm to the applicants upon they returns to Malaysia because of their economic situation.

    2.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with provisions of the Migration Act

    3.The Tribunal has failed to investigate applicant’s claim, especially the grounds of economic situation in Malaysia.

    4.The second respondents failed to comply with the mandatory requirement under section 424A of the Migration Act to give the applicant clear particulars of information it considered would be part of the reason for affirming the decision under review, to ensure the applicant understood why that information was relevant to the review and the consequences of its being relied upon, and to invite the applicant to comment upon or respond to that information.

    Particular:

    The Tribunal did not issue any written invitation under section 424A of the Act and, make no attempt to, and did not, comply with the requirements set out in section 424A of the Act.

    FIRST RESPONDENT’S SUBMISSIONS

25. The first respondent submitted that ground one contends the Tribunal misconstrued the risk of significant harm as set out in s 36(2B) of the Act, the Tribunal did not rely on s 36(2B) in this case as it was not satisfied that the applicant faced a real risk of significant harm in accordance with s 36(2A) or met s 36(2)(aa) of the Act:

    In this regard, the Tribunal correctly identified and applied the relevant test (CB 105-106 and 108-109, [5]-[9] and [25]-[27]). The Tribunal’s findings were open to it on the evidence before it for the reasons it gave. At its highest, ground one amounts to an invitation to the Court to engage in impermissible merits review. This ground should be dismissed.

26. The first respondent submitted in relation to ground two the applicants do not identify how the Tribunal is said to not have arrived at its decision in accordance with the Act:

    As noted above at [15], the Tribunal correctly identified and applied the relevant test and its findings were open to it for the reasons it gave:

    Without more, this ground rises no higher than an emphatic disagreement with the Tribunal’s decision and invites the Court to engage in impermissible merits review.3 This ground should be dismissed.

27. The first respondent submitted ground three broadly contends the Tribunal failed to investigate the applicants claims:

    This ground is misconceived. It is well-established that it is for an applicant to make out their claims before the Tribunal. The Tribunal had no duty to investigate, nor any duty to consider utilising such permissive statutory powers as it had which might enable it to investigate (e.g. s 427(1)(d)).4 Further, this was not a case where the Tribunal failed to make an inquiry about a critical fact the existence of which was easily ascertained.5

    The Tribunal plainly considered the applicants’ claims to fear harm on the basis of the economic climate in Malaysia (CB 106-109, [13]-[19] and [23]-[26]) together with country information (CB 108, [24]). Its findings that the applicant did not meet s 36(2)(a) and s 36(2)(aa) of the Act on the basis of the material before it were open to it. This ground should be dismissed.

28. Finally, the first respondent submitted in relation to ground four the applicants do not identify what information the Tribunal was required to put to them under s 424A:

    The information relied on by the Tribunal was provided either by the applicants in writing to the department, orally to the Tribunal or was country information. These matters fall within the exceptions in ss 424A(3)(ba), 424A(3)(b) and 424A(3)(a) of the Act. There was no information the Tribunal was required to put to the applicants for comment under s 424A.

    CONSIDERATION

29. This is an unusual case.  It can be said shortly that the first respondent’s submissions, paraphrased above, are all clearly and obviously correct. 

30. In circumstances where the applicants protection visa application itself disclosed that the primary applicant’s aim in coming to Australia was to achieve a better economic outcome, it is immediately apparent that the first applicant simply could never satisfy the matters raised by ss 36(2)(a) or 36(2)(aa) of the Migration Act. The tribunal correctly found that the question of economic hardship was one of universal application in Malaysia. The Tribunal also, based on country information properly available to it, concluded that the applicants would not suffer serious harm such as significant economic hardship that threatened their capacity to subsist in Malaysia. The Tribunal’s finding at 25 (referred to above), was plainly clearly open to the Tribunal on the materials before it. It could not be said to be illogical or made without evidence or contrary to undisputed evidence. Indeed, on the facts of the case as disclosed by the application, it was the only finding sensibly to the tribunal in any event. The decision of the tribunal is plainly unaffected by jurisdictional error and the application will be dismissed with costs.

1. The Minister has sought costs fixed at $5,000, lower than scale. In the circumstances, this is a reasonable amount. 

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Associate:

Dated:       10 May 2022