FCL19 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 906

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FCL19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 906

File number:

SYG 3365 of 2019

Judgment of:

JUDGE SKAROS

Date of judgment:

18 September 2024

Catchwords:

MIGRATION – Judicial Review - Protection Visa – Procedural fairness – Impermissible merits review – Whether applicant was on notice that credibility was in issue before the Tribunal - Where applicant self-represented – Where applicant did not provide oral or written submissions as to the grounds of review – Where applicant did not appear to be aware of the grounds of review until the hearing - Application dismissed

Legislation:

Migration Act 1958 ss 5J, 5H, 425, 476

Cases cited:

AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

FRA18 v Minister for Home Affairs & Anor [2019] FCCA 2287

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992

Plaintiff S157/2002v Commonwealth of Australia [2003] HCA 2

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 889

Singh v Minister for Immigration, Citizenship, Multicultural Affairs [2023] FCA 571

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189

Division:

Division 2 General Federal Law

Number of paragraphs:

69

Date of hearing:

11 September 2024

Place:

Parramatta

The Applicant:

In person

Solicitor for the First Respondent:

Mr Dennis, Mills Oakley

Solicitor for the Second Respondent:

Submitting appearance, save as to costs

ORDERS

SYG 3365 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FCL19
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE SKAROS
DATE OF ORDER:	18 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to the Minister for Immigration and Multicultural Affairs.

2.The application filed on 19 December 2019 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 SKAROS:

1. By application filed 19 December 2019, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 28 November 2019. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs (the delegate) to refuse the applicant a Protection (subclass 866) visa (a protection visa).

   BACKGROUND

2. The applicant is a 27-year-old male Malaysian citizen. On 11 October 2016, the applicant applied for a protection visa. In summary, the applicant claimed that he had failed to repay a loan to a friend in Malaysia who then threatened to harm him and his family if the loan was not repaid.

3. On 20 March 2017, the delegate refused to grant the applicant a protection visa. On 31 October 2019, the applicant attended a hearing before the Tribunal for merits review of the delegate’s decision and was assisted by a Malay interpreter. On 28 November 2019, the Tribunal affirmed the delegate’s decision. A written copy of the decision was sent to the applicant.

   THE TRIBUNAL’S DECISION

4. The Tribunal outlined the assessment criteria for the protection visa under both the primary ‘refugee’ criteria and the complementary assessment criteria.

5. The Tribunal stated that it had regard to the Ministerial Direction No. 84, the Refugee Law Guidelines prepared by the Department of Home Affairs, the Complementary Protection Guidelines prepared by the Department of Home Affairs and Country information assessments prepared by the Department of Foreign Affairs and Trade prepared for protection status determination purposes.

6. The Tribunal set out the applicant’s claims for protection as follows:

   •I have borrowed a big amount of money from my friend n Forex and unfortunately I have lost a lot of money without telling them that they have threatened me as I failed to pay back the money so I have decided to go to Australia to settle the loan.

   •If I return to Malaysia myself and my family will be harmed.

   •My friends have threatened to harm myself and my family for me to pay back the loan.

   •I did not seek help because I did not tell my family members that I borrowed money from my friends to play Forex.

   •I have moved to other states such as Johor and I have stayed at my grandmother’s house in Perak.

   •I cannot relocate as my friends will get the information from my other friends and my family

   •[sic]

7. The Tribunal assessed the applicant’s claims against Malaysia as his country of nationality and as the receiving country.

8. The Tribunal set out the oral evidence given by the applicant at the hearing, which can be summarised as follows:

   ·The applicant came to know a person who taught him how to do Forex stocks and bonds;

   ·the economy was bad, and the applicant’s job was low paying;

   ·the applicant borrowed 50,000 RM from another friend and the original person (who taught him how to invest) invested the money on his behalf;

   ·the lender’s father was wealthy, and the applicant had to pay the money back within three months;

   ·the applicant lost the money on Forex;

   ·the applicant’s salary was 1,000 RM per month so he could not repay the loan;

   ·the applicant saw on Facebook that he could make more money in Australia and the applicant came to Australia to make money;

   ·the applicant’s friend was going to report him to the police;

   ·the applicant had no contract or anything in writing;

   ·the applicant did not realise he could lose the money;

   ·the applicant asked for half his money back but did not get it;

   ·the applicant wants to pay everything back so he can return to Malaysia; and

   ·the applicant’s friend would harm his family but to date nothing has happened.

9. The Tribunal had the following concerns regarding the applicant’s claims:

   ·The applicant was vague in terms of the conversations with his friend and the threats of harm;

   ·there is no documentary evidence of the 50,000 RM investment or the loan and any report to police would be difficult because there was no paperwork indicating any money was borrowed in the first place; and

   ·the applicant’s own evidence was that he could come to Australia and make money, whilst the evidence around the Forex and his friend’s loan were vague and evasive.

10. Given the concerns, the Tribunal did not accept that the applicant was a credible witness. The Tribunal did not accept the applicant’s claim of losing 50,000 RM on Forex or that he borrowed the money from a friend. Consequently, the Tribunal did not accept that the applicant was threatened by his friend.

11. Given those findings, the Tribunal did not accept that if the applicant returned to Malaysia that he would face a real chance of persecution from his friend or anyone else associated with him. It found that the applicant does not face a well-founded fear of persecution as per s 5J(1) and was therefore not a refugee within the meaning of s 5H(1) of the Migration Act 1958 (the Act)

12. The Tribunal also did not accept that there were grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant would suffer significant harm from his friend or his associates.

    APPLICATION TO THIS COURT

13. The application which commenced proceedings in this Court contained five grounds of review which have been considered by the Court further below.

14. The applicant also filed an affidavit, sworn/affirmed on 17 December 2019, which annexes a copy of the Tribunal’s decision record and the letter notifying him of the decision.

15. On 13 January 2020, the Minister filed a Response pleading that the application does not invoke the Court’s jurisdiction under s 476(1) of the Act as it does not seek a writ of mandamus or prohibition or an injunction, that the application fails to raise an arguable case for the relief claimed, the application fails to establish jurisdictional error and for costs.

16. On 6 February 2020 a Registrar of the Court made orders by consent providing for, inter alia, the Minister to file the Court Book by 19 March 2020, the applicant to file any amended application and any additional evidence by 30 April 2020, the Minister to file any additional evidence by 11 June 2020, the applicant and the Minister to file submissions 28 and 14 days before the hearing respectively.

17. On 12 March 2020 the Minister filed a copy of the Court Book. No other documents were filed by either party in compliance with the 6 February 2020 orders.

18. On 12 June 2020 the Court ordered by consent that the time for the Minister to file any additional affidavit material, including any transcript of the Tribunal hearing be extended to 9 July 2020.

19. On 30 June 2020 the Minister filed an affidavit annexing a transcript of the Tribunal hearing.

20. At a call over before a Registrar of the Court on 18 March 2024, the Court ordered that, inter alia, the applicant file and serve written submissions by 10 April 2024 and the Minister file and serve written submissions by 17 April 2024.

21. On 16 April 2024 the Minister filed written submissions. No amended application or additional evidence was filed by the applicant.

22. The matter was heard on 11 September 2024 at the Parramatta Registry of the Court. The applicant appeared in person. The applicant was assisted by an interpreter in the Malay and English languages. Mr Liam Dennis, Solicitor, appeared on behalf of the Minister.

23. The Minister sought to rely on material in the Court Book. Accordingly, the Court Book, filed on 12 March 2024, was tendered at the hearing and marked Exhibit CB.

24. Being mindful that the applicant was unrepresented, the Court explained to him how the hearing would proceed and the role and powers of the Court in judicial review proceedings.

25. The Court also noted that the application for judicial review filed by the applicant only sought orders to quash the Tribunal’s decision and did not seek a writ of mandamus requesting the matter be remitted to the Tribunal. An application that fails to seek a writ of mandamus or prohibition, or an injunction, has the result of the application not properly invoking the Court’s Jurisdiction in the matter pursuant to s 476(1) of the Act: FRA18 v Minister for Home Affairs & Anor [2019] FCCA 2287 [15] & [21]. Noting that the applicant was unrepresented and it is understandable that the applicant may not have appreciated the importance of this technicality, the Court proposed that the application filed 19 December 2019 is taken to have been amended so as to seek a writ of mandamus. The Court has the power to do so, even on its own motion: Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 889 [44] – [51]. There being no objection by the Minister, the Court so ordered.

26. Noting that no amended application or written submissions had been filed by the applicant, the applicant was invited to make oral submissions in support of the grounds of review set out in his originating application. The Minister also made oral submissions at the hearing which largely reflected the written submissions filed on 16 April 2024.

    Consideration

27. The Court can only grant relief if it can be established that the decision of the Tribunal is affected by a jurisdictional error: Plaintiff S157/2002v Commonwealth of Australia [2003] HCA 2.

28. In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (SZMTA) at [81], the High Court, per Nettle and Gordon JJ explained that:

    The categories of jurisdictional error are not closed. Jurisdictional error by a statutory decision-maker includes identifying a wrong issue; asking the wrong question; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; and failing to observe some applicable requirement of procedural fairness.

29. To constitute jurisdictional error, the error must be material, in the sense that it could have realistically deprived the applicant of the opportunity of a successful outcome: SZMTA at [2].

30. Further, as explained to the applicant at the hearing, it is not for the Court to review the merits of the Tribunal decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

    Grounds of review

31. There were five grounds provided in the application for judicial review. It became apparent at the hearing that the applicant was unaware of the grounds set out in the originating application. The applicant informed the Court that he paid a friend to assist him with the judicial review application, which included completion of the form and the grounds contained therein.

32. When asked why he applied for judicial review of the Tribunal’s decision and what legal error he believes the Tribunal made when conducting a review of his case, the applicant said he does not think the Tribunal made an error and that he wanted to get a visa, temporarily, so he could pay off his debt.

33. Out of fairness to the applicant, who was unrepresented, the Court invited him to make submissions in respect of the grounds of review, each of which were read out to him with the assistance of the interpreter.   

    Ground one  

34. Ground one was set out in the application as follows (without alteration):

    When the interview session, I was been given a chance to talk but due to my situation which was so nervous and under pressure so it so hard for me to talk and I can’t remember any point at all.

35. The Court notes that the applicant did not attend an interview with the delegate, the reference to the “interview session” therefore is taken to be in reference to the Tribunal hearing.

36. Broadly interpreted, the complaint in this ground appears to be suggest that, due to his nervousness, the applicant was deprived of a meaningful opportunity to participate in the hearing mandated by s 425 of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [19] per Gleeson CJ; Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [20] per Keane CJ.

37. In oral submissions, the applicant stated that he could not recall the date of the hearing and was unsure what to say in relation to this ground of review.  

38. The Minister submitted that the applicant was able to appear before the Tribunal, give evidence and present arguments in relation to the dispositive issues: CB 89 [16]-[18], and that the transcript of the hearing does not support any contention that the applicant was not in a fit state to participate in the hearing.

39. The material before the Court does not suggest that the applicant was deprived of a meaningful opportunity to participate in the hearing. The applicant attended the hearing on 31 October 2019 and was assisted by an interpreter in the English and Malay languages. The transcript of the hearing indicates that the Tribunal asked the applicant questions about his claims, that he responded to those questions and he was given an opportunity to respond to concerns raised by the Tribunal about his claims for protection. At the conclusion of the hearing, the applicant was also asked whether there was anything else he would like to say about his claims, to which the applicant said “no”.

40. It is understandable that the applicant would have been nervous at the hearing before the Tribunal, however, the material before the Court, including the transcript of the hearing, does not disclose that this prevented him from effectively participating in the hearing.

41. Ground one does not establish jurisdictional error.

    Ground two

42. Ground two was set out in the application as follows (without alteration):

    I was not conversant in English and I ask one of my friend which was not really close to apply and do for my protection visa. I explain and do tell him everything what is the main purpose I do come to Australia. I believe in him and pay sum amount just to get a protection visa to this country. Cause my life and my parents (family) life is in danger in Malaysia, in a meantime because of believe I do not get a copy of what is the main purpose that he has submit when apply for the visa.

43. At the hearing, the applicant said he was unsure of what else he could say in relation to this ground.

44. The Minister submitted that this ground does not articulate any ground of jurisdictional error and that, in any event, it was the applicant’s responsibility to ensure that his visa application was accurate and complete. It was further submitted that any suggestion by the applicant that he was unaware of the protection claims made on his behalf should have been ventilated with the Tribunal and that doing so in these proceedings amount to a request for impermissible merits review.

45. In oral submissions, the Minister further contended that it was the applicant’s responsibility to present his claims and that there is no evidence which suggests that the application was vitiated by third party fraud.

46. The evidence before the Court indicates that the applicant was aware of (and had given instructions for) a protection visa application to be lodged on his behalf. The applicant appeared before the Tribunal at a hearing to give evidence and present arguments in support of his claims for protection. The transcript of the hearing indicates that the applicant told the Tribunal that his friend assisted him with the protection visa application, that everything in that application was true and correct and there were no mistakes in the application. The transcript does not disclose that the applicant raised any concerns or was not aware of the claims in his protection visa application.   

47. The Court accepts that the Minister’s submission that this is not a case where the evidence suggests fraud by a third party (be it by the applicant’s friend or another person), which would give rise to a jurisdictional error or lead the Court to conclude that there had been a fraud on the Tribunal which prevented it from duly discharging its statutory functions when conducting the review: see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189.

48. Ground two does not establish jurisdictional error.

    Ground three

49. Ground three was set out in the application as follows (without alteration):

    I have a good case and need another opportunity to present my case.

50. In respect of this ground, the Court explained to the applicant that he had the opportunity to present the merits of his case to the Tribunal and that the Court could not undertake a review of the merits.  When asked if he had any other concerns about the Tribunal’s decision or the way the Tribunal conducted the review, the applicant indicated that he did not.

51. The Minister submits this ground is a blatant request for impermissible merits review.

52. If by ground three the applicant is requesting that the Court reconsider the merits of his case, then the Minister is correct that this is impermissible: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17]. To the extent that the applicant is alleging that he was not given an opportunity to present his case before the Tribunal, this ground is simply not made out.

1. Ground three does not establish jurisdictional error.

   Ground four

2. Ground four was set out in the application as follows (without alteration):

   There’s no prejudice to the respondent if my application is allows, all I’m asking is an opportunity to present my case, I believe there are merit in the appeal before the Court.

3. At the hearing the applicant was unable to say anything further about this ground.

4. The Court accepts, as submitted by the Minister, that this ground, in raising the issue of prejudice, is misconceived because any prejudice to the first respondent is not a relevant factor when considering whether the Tribunal’s decision is affected by jurisdictional error. The issue of prejudice to the first respondent is relevant to an extension of time application, which the Court notes is not applicable in the circumstances of this case as the application for judicial review was received with the 35-day period prescribed by the Act. It is not relevant to this judicial review application.

5. To the extent that ground four invites the Court to reconsider the merits of his claims, this the Court cannot do. The applicant has also not been able to articulate on what basis his appeal to the Court has merit.

6. Ground four does not establish jurisdictional error.

   Ground five

7. Ground five was set out in the application as follows (without alteration):

   I didn’t received any guidance to obtained any information to attend at a community centre for assistance.

8. The Court accepts, as submitted by the Minister, that this ground raises no recognised ground of jurisdictional error. Further, there is no entitlement in this Court to legal representation:  Singh v Minister for Immigration, Citizenship, Multicultural Affairs [2023] FCA 571 at [19].

9. Ground five does not establish jurisdictional error.

   Ground raised by the Minister

10. As a model litigant, the Minister brought to the Court’s attention a procedural fairness issue, being whether the Tribunal, in affirming the delegate’s decision on a different basis, had put the applicant on notice that the credibility of his claims was in issue.

11. The Minister submitted that it was not necessary for the Tribunal to put to the applicant that he was lying, that he may not be accepted as a witness of truth or that he may be embellishing the account of certain events. It was also submitted that the Tribunal does not need to adopt the position of a contradictor and that procedural fairness obligations did not require the Tribunal to give the applicant a running commentary of what it thought about his evidence: AZAAD v Minister for Immigration and Citizenship [2010] FCAFC 156 at [103]. These principles are well established: see also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, the High Court, in a unanimous decision, stated at [47] as follows:

    "First, there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events.

12. The Minister contended that the applicant was on notice of the dispositive issue, being whether his claims for protection could be accepted. The Minister drew the Court’s attention to parts of the transcript where the Tribunal had raised concerns with the applicant about his claims for protection, including the matters set out in paragraph [9] above.

13. It was further submitted that it is open for the Court to also infer, from the delegate’s decision, that the applicant was on notice that credibility was also an issue. When asked which parts of the delegate’s decision supported this submission, the Minister referred the Court to the following paragraphs:

    “there is nothing before me to suggest that the applicant will be targeted on their return to Malaysia for one or more the reasons mentioned in paragraph 5J(1)(a) of the Act. (CB 50)

    “I note that the applicant has outlined their situation in minimal detail and with no supporting evidence. (CB55)

14. The Court does not agree that it could be inferred from the delegate’s decision that the applicant’s credibility or the veracity of his claims were in issue. While the delegate was concerned about the limited evidence provided by the applicant in support of his claim to have borrowed money from a friend and to fear harm because he was unable to repay that money, it can be inferred from the analysis of the claims and evidence that the delegate had accepted the applicant’s claim but found that the harm feared in Malaysia was not for a convention reasons: s 5J(1)(a) of the Act. Further, in assessing the claim against the complementary protection criteria, the delegate found, based on country information, that Malaysian authorities would be able to provide an adequate level of protection.

15. Nevertheless, the Court is satisfied, after having carefully reviewed the transcript of the hearing, that the Tribunal’s line of questioning and the concerns raised with the applicant about his claims sufficiently indicated to the applicant that the veracity of those claims was in issue. The Court accepts the Minister’s submission that, in this way, the applicant was on notice of the dispositive issue in the review and there was no failure on the part of the Tribunal to afford procedural fairness in that regard.

16. The additional ground raised by the Minister does not disclose jurisdictional error on the part of the Tribunal.

    CONCLUSION

17. As none of the grounds establish jurisdictional error, the application for judicial review must be dismissed.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros.

Associate: T A

Dated:       18 September 2024