Ffo17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 378

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FFO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 378

File number(s):	MLG 2602 of 2017
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	20 May 2022
Catchwords:	MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision made by the Administrative Appeals Tribunal affirming decision not to grant a protection visa – no jurisdictional error.
Legislation:	Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 476
Division:	General
Number of paragraphs:	14
Date of hearing:	13 May 2022
Place:	Sydney
The Applicant:	Appeared in person, assisted by an interpreter, by telephone
Solicitor for the First Respondent:	Mr S Kovacs of Clayton Utz, by telephone

ORDERS

MLG 2602 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FFO17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	20 MAY 2022

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs set in the amount of $6,700.

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

INTRODUCTION

1. The applicant, a citizen of Malaysia, applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (subclass 866) visa (Protection visa).

2. It would be convenient to begin by setting out the claims for protection the applicant made before the Tribunal because the claims the applicant stated in his form of application for a Protection visa are sparse, and difficult to understand.

   CLAIMS FOR PROTECTION

3. The applicant made the following claims:

   (a)Before coming to Australia the applicant worked as a factory worker.

   (b)The applicant borrowed RM40K from a Malaysian bank, and borrowed a further amount from a local loan shark. The applicant borrowed money from the bank because he wanted to start a new business; but that did not come to fruition.[1] The applicant borrowed the money to go into business with a friend selling motor vehicles, but his friend “disappeared”, leaving the applicant alone to pay the bank loan.[2]

   (c)After the applicant’s funds had run out he still had the problem of honouring his loan commitments to the bank. To do that the applicant borrowed RM3,000 from a local loan shark.[3] The applicant did not make a formal written agreement with the loan shark. Instead the applicant provided to the loan shark a copy of his Malaysian identity card which included his residential address.[4]

   (d)The applicant was unable to service the loan he obtained from the loan shark;[5] and the bank “blacklisted” the applicant for non-repayment of the loan he had taken out with the bank.[6] Further, when the applicant was unable to service the loan from the loan shark, the applicant received verbal threats from the loan shark.[7] After two months of not having paid the loan shark, the loan shark would come looking for the applicant.[8] The applicant feared reprisals from the loan shark; and the applicant chose not to report his fears about the threats because he feared for his family.[9]

   (e)The applicant decided to leave Malaysia to come to Australia because he could not live in Malaysia and support himself there. The applicant left Malaysia before the loan shark threatened him.[10]

   [1] CB146, [21]

   [2] CB154, [55]

   [3] CB146, [22]

   [4] CB146, [23]

   [5] CB146, [24]

   [6] CB146, [25]

   [7] CB147, [26]

   [8] CB147, [26]

   [9] CB154, [55]

   [10] CB147, [27]

   TRIBUNAL’S REASONS

4. The Tribunal accepted:[11]

   (a)the applicant was faced with a personal crisis as far as that concerned his personal finances;

   (b)the applicant owed RM40K to a financial institution, and the applicant may face legal proceedings because he has not repaid that loan; and

   (c)the applicant was attracted to, and negotiated a loan for RM3,000 with a loan shark or money lender which remains unpaid, and which has caused the applicant issues and concerns about his personal safety.[12]

   [11] CB154, [53]

   [12] CB154, [53]

5. The Tribunal, however:

   (a)did not find credible the applicant’s explanation of the circumstances which he claimed compelled him to leave for Australia;[13]

   (b)found there is nothing in the evidence to suggest the applicant would not be able to access the Malaysian legal system and attempt to represent his defence in any bankruptcy proceedings;[14]

   (c)did not have a well-founded fear of persecution in relation to his dealings with the loan shark;[15]

   (d)did not accept the applicant’s evidence that even if he were threatened the Malaysian police would not provide him with adequate protection, should he require it;[16] and

   (e)found that:[17]

   effective protection measures are available, namely that protection against serious or significant harm could be provided to the applicant by the Malaysian State, that protection is durable and the Malaysian State is willing and able to offer such protection.

   [13] CB154, [55]

   [14] CB154, [55]

   [15] CB154-155, [55]

   [16] CB155, [56]

   [17] CB156, [59]

6. Given these findings the Tribunal concluded it was not satisfied the applicant met the criteria for the granting of a Protection visa as provided under s 36(2)(a) and s 36(2)(aa) of the Act.

   GROUNDS OF APPLICATION

7. The application contains the following grounds of application (errors in original):

   The Tribunal did not make it’s decision on 8 November 2017 according in law.

   The Tribunal was made decision without looking at the evidence of the applicant.

8. At the hearing before me the applicant, who was not legally represented, but was assisted by an interpreter, said he borrowed money from a loan shark, and for that reason he needs protection, as does his family. The applicant said he was chased by a loan shark because he has not been able to repay the loan shark. The applicant also said that he borrowed money from the bank, but he lost it because he was tricked by someone and, for that reason, he could not repay the bank, and will be bankrupted and blacklisted.

9. I asked the applicant whether he had read the Tribunal’s decision. The applicant said he did. I then asked the applicant whether he can tell me why he believes the Tribunal did not make its decision according to law. The applicant said he told the Tribunal he has problems with loan sharks, and he was verbally threatened by loan sharks. I also asked the applicant whether he could tell me what evidence the Tribunal did not look at or consider. The applicant said he had nothing further to add.

10. The grounds as stated in the application by themselves do not disclose any jurisdictional error because they do not identify the matters on which the applicant relies for claiming the Tribunal did not make its decision according to law; and they do not identify the evidence the applicant gave to the Tribunal which the Tribunal is said not to have looked at or considered.

11. The submissions the applicant made at the hearing before me went no further than appealing to the merits of the case for protection that he advanced before the Tribunal. Although the Tribunal accepted the essential factual premises of the applicant’s claims, it was not satisfied that those facts gave rise to a real chance that the applicant will face serious or significant harm; and that is because the Tribunal was satisfied the applicant could access effective protection from the Malaysian authorities.

    DISPOSITION

12. I will order that the application be dismissed.

13. The Minister applies for an order that the applicant pay the Minister’s costs set in the amount of $6,700. The applicant submitted he would not be able to meet a costs order. A party’s inability to meet a costs order by itself is no reason for not applying the usual order that an unsuccessful party should pay the costs of the successful party.

14. I am satisfied that costs should follow the event, and that $6,700 is a fair indemnity for the costs the Minister has incurred in successfully defending this application. I will therefore also order that the applicant pay the Minister’s costs set in the amount of $6,700.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       20 May 2022