FDR17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 473
•28 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
FDR17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 473
File number: MLG 2554 of 2017 Judgment of: JUDGE BLAKE Date of judgment: 28 May 2024 Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal – application dismissed. Cases cited: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 262
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Division: Division 2 General Federal Law Number of paragraphs: 27 Date of hearing: 21 March 2024 Place: Melbourne Advocate for the Applicant: None Solicitor for the Applicant: In Person Advocate for the First Respondent: Mr Creedon Solicitor for the First Respondent: Australian Government Solicitor ORDERS
MLG 2554 of 2017 BETWEEN: FDR17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
28 MAY 2024
THE COURT ORDERS THAT:
1.The Application filed on 24 November 2017 be dismissed.
2.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $4,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 BLAKE:
This is an application to review a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 30 October 2017 (‘Application’). In its decision, the Tribunal affirmed a decision of a delegate of the Minister (‘delegate’) not to grant the Applicant a Protection (subclass 866) visa (‘visa’) (Court Book (‘CB’) 119).
For the reasons that follow, I have decided to dismiss the Application.
BACKGROUND
The Applicant is a Malay national. The Applicant arrived in Australia on 16 August 2016 on a UD-601 Electronic Travel Authority visa (CB 67). He applied for the visa in November 2016 (CB 52).
On 20 March 2017, the delegate refused to grant the Applicant the visa (CB 63).
On 20 March 2017, the Applicant applied to the Tribunal to review the delegate's decision (CB 81). On 21 August 2017, the Tribunal invited the Applicant to attend a hearing on 9 October 2017 in Coffs Harbour (CB 87).
On 24 August 2017, the Applicant wrote to the Tribunal requesting a change of venue as he was now residing in Mildura (CB 89). On 28 August 2017, the Tribunal confirmed the change of location of the hearing on 9 October 2017 to Melbourne (CB 92).
On 9 October 2017, the Tribunal adjourned the hearing to 30 October 2017 due to difficulties with the interpreter that attended (CB 100, 120).
On 22 October 2017, the Applicant sent an email to the Tribunal that attached a document in Malay, the letterhead of which read ‘The Green Co-operative Society Limited’ (CB 103-105).
On 23 October 2017, the Tribunal wrote back to the Applicant, requesting that the entire document be translated into English (CB-107). The Applicant did not provide a translated version.
On 30 October 2017, the Tribunal affirmed the decision not to grant the Applicant the visa (CB119-125).
The Application was filed on 24 November 2017. The Application was accompanied by an affidavit of the Applicant.
On 6 July 2023, the matter came on for directions before a Registrar. The Registrar made a notation on the orders made that day that the Applicant’s wife expects to give birth in October 2023, and that the Applicant had requested the final hearing not occur until 2024. The matter was subsequently listed for hearing before me on 21 March 2024.
On 22 February 2024, the Applicant wrote to the Court and sought an adjournment of the hearing on the basis that his ‘circumstances have recently undergone significant changes that make it extremely challenging for me to attend the hearing as planned’, which included the birth of his child in September 2023, and that he was experiencing financial difficulty. I declined to adjourn the hearing, but arranged to have the hearing proceed by Microsoft Teams to accommodate the Applicant and to alleviate the need for him to spend time and money travelling to Melbourne.
The Applicant appeared before me unrepresented. He was assisted by an interpreter. The Applicant did not file any written submissions despite having the opportunity to do so. The Applicant did send an email to the Court that contained a number of documents including copies of a rental agreement, a marriage certificate, a medical certificate, payslips, a police report, a birth certificate of his child, and invoices from a dental practice. The Applicant told me that he had sent these documents to ‘show my commitment right now’. The Minister filed written submissions on 6 March 2024 and relied on those, along with the material in the Court Book.
THE DECISION OF THE TRIBUNAL
In its reasons, the Tribunal:
(a)noted it had changed the location of the hearing to Melbourne to accommodate the Applicant (at [4]);
(b)recorded that the hearing on ‘24 August 2017’ was adjourned because of difficulties with the interpreter, and as a result a further hearing was conducted on 30 October 2017 (at [5]). I note the Tribunal’s reference to ‘24 August 2017’ would appear to be a typographical error given the Tribunal initially heard from the Applicant on 9 October 2017;
(c)set out the criteria for a grant of the visa at paragraphs [8]-[15];
(d)summarised the Applicant’s claims to fear harm from loan sharks if he is required to return to Malaysia at [17], [21]-[22];
(e)put to the Applicant concerns it had about his claims and his credibility including that it found it hard to accept he would take out a loan for a large amount of money for his cousin without knowing the reason for the loan (at [26]); that despite the threats of harm he received and knowledge of where he lived, the loan sharks nevertheless did not harm him or his family members prior to his departure from Malaysia (at [28]); that as the loan sharks had been unable to locate his cousin, they would not be able to locate him if he returned to Malaysia (at [29]); that the reason he did not tell his family or the police about the loan sharks was because the events recounted did not occur (at [30]); and that arrests of loan sharks by the police were rising and that there had been a crackdown on such activity (at [30]-[31]);
(f)stated it had ‘carefully considered the applicant’s claims and his evidence to the Tribunal and finds it unconvincing. His explanation of why he borrowed money from loan sharks for his cousin is implausible and lacking in credibility. The Tribunal does not accept that the applicant would not have informed his family or his cousin’s family or the police of the debt if one had indeed been incurred, or sought to locate his cousin’ (at [33]);
(g)stated it ‘is not satisfied that the Green Cooperative Society is a loan shark or the document he provided is a contract to repay a loan that either he, or his cousin, entered into, or if it is, that it has not been fabricated for the purposes of supporting his claim. The Tribunal is not satisfied that the applicant has engaged with loan sharks in any way or that he owes anyone any money. The Tribunal is not satisfied, therefore, that the applicant has suffered previous harm or that he will suffer future harm from loan sharks or from anyone else should he return to Malaysia’ (at [34]); and
(h)did not accept that the Applicant is a person to whom Australia owes protection (at [36]-[37]).
THE APPLICATION
The Application contained various purported Grounds of Review. They are set out below. All errors are as contained in the Application.
1.EVERYDAY I WAS HUNTED BY A SHARK LOAN. THEY WILL ANNOY ME EVEN WHERE I AM. THIS CAUSE MY LIFE IN A STRESSFUL.
2.COERCION MADE BY THEM MAKE MY LIFE THREATENED AND SUFFERED.
3.I ALSO WANT TO LIVE SAFELY AND PEACEFUL LIKE OTHER PEOPLE WITHOUT INTEREFERENCE.
4.I WILL DEFINITELY SUFFER SIGNIFICANT HARM, IF I RETURN TO MALAYSIA
On January 2016, my cousin asked me to use my personal detail such as my name, address and my bank statement for him to make a personal loan on a shark loan. Although I and my cousin are quite close but he does not share the problem of why he wants to borrow money. I did know what was going on in him and where he was so much the shark loan. I was looking for to pay off his debts for 3 months had no payment from him. (No 34). Although I have given proof of loan form from loan shark but AAT did not received because the company’s name does’nt exist on the internet. In Malaysia, so many unlisted loan company shark and Green Cooperative Society is one of them.
In terms of the orders sought, the Application provides as follows:
1. PROTECT ME FROM SHARK LOAN WHICH ALWAYS DISTURBED MY LIFE.
2. I WAS FORCED TO PAY ALL DEBTS MADE BY OTHERS. I LIVE IN FEAR.
3. THEY PROVOKING ME AND ALWAYS ASKING THE SAME QUESTION.
In his affidavit, the Applicant says that ‘I going to tell the truth all the point I mentioned’ and ‘all the document I attached it was the true’.
Before me, the Applicant stated that the Tribunal was not convinced of his claims, perhaps because of how he spoke or because of his inexperience. He mentioned that the Tribunal only required a day to deliver its decision. He said he had not felt like returning to Malaysia because it was not secure for him. He mentioned that he had got married and was blessed with a child. He said that perhaps the Tribunal did not believe him because there were many cases of Malaysians lying to the Tribunal and presenting the same case. He mentioned near the end of the hearing before me, that there had been a difficulty with the interpreter used by the Tribunal.
The Applicant has, in part, correctly characterised the reasons of the Tribunal. The Tribunal was not convinced about his claims. The Tribunal’s reasons for not being convinced about the Applicant’s claims, however, have nothing to do with how he spoke, or because of his inexperience. Rather, the Tribunal found the Applicant’s claims implausible and lacking in credibility on the basis of the account given by the Applicant, and the Tribunal’s concerns about that account, which I have outlined above.
The Applicant’s Grounds of Review are not proper Grounds of Review. They, subject to what I say below, do not identify any error in the reasons of the Tribunal. Instead, the Grounds of Review effectively restate the Applicant’s claims about the loan sharks and his fear of being threatened or suffering harm from them if he is returned to Malaysia. In advancing these grounds, the Applicant effectively asks the Court to engage in merits review, something this Court is unable to do: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
In the Application, in the paragraph that follows the specified Grounds of Review, the Applicant says he gave proof of the loan document from the loan shark to the Tribunal and then seems to complain that the Tribunal didn’t ‘received it’ (which I understand to mean, accept it as evidence of the loan) because the name of the company does not exist on the Internet. The Tribunal noted the existence of this document at paragraph [22] of its reasons. The Tribunal noted the document had been supplied in untranslated form. Nevertheless, during the hearing the Tribunal asked the Applicant about the document and whether he knew what the repayment amount was. The Tribunal noted that the Applicant was evasive and that he did not know the amount (at [23]). As I have noted above, the Tribunal was not satisfied that Green Co-operative Society was a loan shark, or that the document was a contract to repay a loan or that if it was, it had not been fabricated. These conclusions were open to the Tribunal.
It is plain from the Tribunal’s reasons that notwithstanding the document had been supplied in untranslated form, it was considered by the Tribunal. Further, it is clear that the Tribunal formed its view about the authenticity or otherwise of the document based on answers the Applicant gave. Nowhere in the reasons of the Tribunal does it indicate the Tribunal had regard to information obtained on the Internet or other extraneous information. It is well accepted that the Tribunal is entitled to give such weight to evidence as it thinks appropriate: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at [27].
I have otherwise reviewed the reasons of the Tribunal, and the information contained in the Court Book. The Tribunal has not fallen into error having regard to any procedural fairness issue. I note that the Applicant was properly invited to attend a hearing, and that the location of the hearing was ultimately changed in order to suit the Applicant.
Towards the end of the hearing before me, the Applicant appeared to raise a complaint about the interpreter that had been provided to him at the Tribunal. The Tribunal recorded how it dealt with this issue at paragraph [5] of its reasons. In short, the Tribunal needed to adjourn the initial hearing because the Applicant could not understand the interpreter. A further hearing was arranged with a different interpreter and the hearing proceeded without issue. The Applicant, having raised the issue before me, under questioning from me, accepted that in fact the second hearing had proceeded without issue.
It seems clear that the Applicant has settled into life in Mildura and is making a contribution to society. While he is to be commended for this, regrettably for him, he has not been able to demonstrate any jurisdictional error committed by the Tribunal. In the circumstances, the Application must be dismissed.
The Applicant has been entirely unsuccessful. The Minister seeks costs of $4,500. In all the circumstances, I will make an order for costs in favour of the Minister.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 28 May 2024
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