Fho17 v Minister for Immigration
[2018] FCCA 2919
•15 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FHO17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2919 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.36 |
| Applicant: | FHO17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3748 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms S Gaussen of Sparke Helmore |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3748 of 2017
| FHO17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 7 November 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 8 October 2018.
The applicant, a citizen of Malaysia, entered Australia on 17 May 2017 as the holder of a tourist visa.[1] On 23 May 2017, the applicant applied for a protection visa.[2] The application was refused by the delegate on 25 August 2017.[3]
[1] Court Book (CB) 50
[2] CB 1
[3] CB 50
On 3 September 2017, the applicant applied to the Tribunal for review of the delegate’s decision.[4] The applicant attended a hearing before the Tribunal on 24 October 2017.[5]
[4] CB 59
[5] CB 71
On 7 November 2017, the Tribunal affirmed the delegate’s decision to refuse the grant of the visa.[6]
[6] CB 129
The applicant’s claims
The applicant’s claims were set out in his protection visa application and related to a debt owed to a Malaysian bank.[7] His claims were, in summary, as follows:
a)because of difficulties with his business, he had been unable to repay his credit card debt, the debt was initially RM3,000, increased to RM6,000 and at the time of his application was RM146,792.40; and
b)if he returned to Malaysia, he would not be able to travel to any other country if he did not settle the debt.
[7] CB 32 - 34
At the Tribunal hearing on 24 October 2017, the applicant also indicated that, should he return to Malaysia:
a)bankruptcy proceedings would be brought against him, and if he were prosecuted he would go to jail;[8]
b)he had been blacklisted and could not borrow money in Malaysia;[9]
c)debt collectors “called him and threatened him and wanted to make him bankrupt…”;[10] and
d)the debt collectors are “like gangsers”.[11]
[8] CB 132, [17]
[9] CB 132, [14]
[10] CB 132, [17]
[11] CB 135, [28]
Tribunal decision
On 7 November 2017, the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa. The Tribunal accepted the following aspects of the applicant’s claims:
a)he was a citizen of Malaysia;[12]
b)he had an outstanding debt to a Malaysian bank in the sum of RM146,792.40 and debt collectors had been engaged to recover the money from him;[13]
c)he had been blacklisted from borrowing money from other banks and lenders in Malaysia;[14]
d)if he returned to Malaysia, he would be unlikely to be able to generate sufficient income to repay his outstanding debt and there was a real chance that he would be the subject of bankruptcy proceedings;[15] and
e)if he was declared bankrupt, he might be prevented from leaving Malaysia during the period of his bankruptcy, his assets might be confiscated and he might be unable to obtain credit or further finance.[16]
[12] CB 133, [19]
[13] CB 133, [21]
[14] CB 133, [22]
[15] CB 134, [24]
[16] CB 134, [25]
However, the Tribunal did not accept that there was a real chance that the applicant would be jailed as a consequence of bankruptcy proceedings.[17] The Tribunal also found that the applicant had embellished his evidence about what he feared would happen to him if he returned to Malaysia. In particular, the Tribunal rejected the applicant’s evidence that the debt collectors were gangsters or that gangsters had threatened him or his family members with serious or significant harm.[18]
[17] CB 134, [25]
[18] CB 135, [28]
Noting that bankruptcy proceedings in Malaysia resulted from the enforcement of a law of general application, the Tribunal found that there was not a real chance that the applicant would suffer serious harm for any of the Convention reasons (or for any other reason) and accordingly found that the applicant did not satisfy the criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act).[19]
[19] CB 134, [26] and 136, [31]
Having regard to its anterior findings of fact, the Tribunal did not accept that any of the consequences that might flow from bankruptcy proceedings would amount to significant harm within the meaning of the Migration Act, and was not satisfied that there were substantial grounds for believing that as a necessary or foreseeable consequence of the applicant being removed to Malaysia, he would suffer significant harm.[20] Accordingly, the Tribunal found that the applicant did not satisfy the criterion in s.36(2)(aa) of the Migration Act.
[20] CB 136, [32]
The present proceedings
These proceedings began with a show cause application filed on 4 December 2017. The applicant continues to rely upon that application. There are two grounds in it:
1.The Tribunal had no jurisdiction to make the said decision because its "reasonable satisfaction" was not arrived in accordance with the provisions of the MigrationAct.
2.The Tribunal constructively failed to exercise its jurisdiction:
Particulars:
The applicant provided documents to the Tribunal to corroborate his claims. The Tribunal failed to engage in an active intellectual process of these documents. The Tribunal ultimately gave the documents no weight on the basis of credit findings. It was an error for the Tribunal to place no weight on the documents without engaging to the contents of these documents. It was an error for the Tribunal to assess the applicant's credit without first assessing whether the substance of the documents corroborated his claims.
The application is supported by a short affidavit filed with it, which I received. I also have before me as evidence a corrected court book filed on 2 October 2018.[21]
[21] A court book had been filed on 15 February 2018 but it required repagination
I invited oral submissions from the applicant this afternoon. He is concerned about his indebtedness, which apparently commenced in about 1997 and has been increasing exponentially. The applicant has apparently had experience with aggressive debt collectors. However, as the Tribunal found, the real risk faced by the applicant is one of bankruptcy because he cannot pay his debts. That bankruptcy, as the Tribunal found, would not amount to persecution.
There is, in my view, no substance to the applicant’s grounds of judicial review. I agree with the Minister’s submissions concerning those grounds.
By Ground 1, the applicant contends that the Tribunal had no jurisdiction to make its decision because “its ‘reasonable satisfaction’ was not arrived in accordance with the provisions of the Migration Act.” This ground is without merit. This is not a case in which the Tribunal was not satisfied of the factual basis for the applicant’s claims. Rather, the Tribunal accepted most of the applicant’s claims, but found that the harm that the applicant claimed to fear did not engage Australia’s protection obligations.[22]
[22] CB 136 - 137
By Ground 2, the applicant contends that the Tribunal failed to exercise its jurisdiction. The particulars of the ground assert that:
a)the applicant provided documents to the Tribunal to corroborate his claims, but the Tribunal failed to engage in an active intellectual process with those documents; and
b)it was an error for the Tribunal to place no weight on the documents (on the basis of its anterior credit findings) without engaging with the contents of these documents. Instead, the Tribunal ought to have considered the substance of the documents before making a finding as to the applicant’s credibility.
The applicant’s contention is misconceived. The documents provided by the applicant at the hearing related to the quantum of the debt owed by the applicant and showed that debt collectors had been engaged.[23] The Tribunal accepted this evidence.[24] Contrary to the applicant’s assertion, the Tribunal did not disregard the documents prior to making a finding as to the applicant’s credibility.
[23] CB 131, [13]
[24] CB 133, [21]
The Tribunal assessed the balance of the applicant’s claims that it had accepted against independent country information before it. On the basis of that information, the Tribunal considered that the applicant’s claims did not engage Australia’s protection obligations.[25] Those findings were open to the Tribunal on the material before it and for the reasons it gave. Accordingly, Ground 2 discloses jurisdictional error on the part of the Tribunal and no arguable case is raised.
[25] CB 136 - 137
Conclusion
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will therefore dismiss the application, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale at the time the application was filed. The applicant is concerned about his capacity to pay, but as I told him, the issue for me is whether the costs have been reasonably and properly incurred. I am satisfied that they have been.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 18 October 2018
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