FJZ17 v Minister for Immigration, Citizenship, and Multicultural Affairs

[2022] FedCFamC2G 547

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FJZ17 v Minister for Immigration, Citizenship, and Multicultural Affairs [2022] FedCFamC2G 547

File number(s):	MLG 2700 of 2017
Judgment of:	JUDGE VASTA
Date of judgment:	5 July 2022
Catchwords:	MIGRATION – Protection Visa – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – where no error established in Administrative Appeals Tribunal’s – application dismissed
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	49
Date of last submission/s:	5 July 2022
Date of hearing:	5 July 2022
Place:	Brisbane
Counsel for the Applicant:	The Applicant appearing on their own behalf with the assistance of an interpreter
Solicitor for the First Respondent:	Clayton Utz

ORDERS

MLG 2700 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FJZ17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	5 JULY 2022

THE COURT ORDERS THAT:

1.The application filed on 11 December 2017 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,467.

3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

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 VASTA

INTRODUCTION

1. On 30 November 2017, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision not to grant the Applicant, FJZ17, a protection Visa.  On 11 December 2017, the Applicant asked this Court to review that decision.

2. It was not until eight months later that the matter was given a first court date.  On 22 August 2018, Registrar Allaway made the usual orders regarding the filing of documents and provision of material including written submissions.  He ordered that the matter proceed to a final hearing on 23 September 2020.

3. The matter did not proceed on that date and was then subsumed as part of the National Migration Docket.  The Registrar listed the matter before me at 2:15 PM on Tuesday, 5 July 2020.  The hearing proceeded on that day with the Applicant appearing unrepresented but assisted by an interpreter.

4. This means that the Applicant has had to wait over 4 ½ years for this Court to finally hear his application. I, on behalf of the Court, apologise to the Applicant for the inordinate delay in finalising his matter.  It was part of the reason for me giving the decision ex tempore. 

5. During my reasons, the interpreter interrupted and told me that he needed to go to another booking in 10 minutes and would be unavailable to continue the matter.  I then pronounced the orders and gave very short reasons.  I announced that I would deliver the full reasons at a later time but as quickly as possible.

   Background

6. The Applicant is a citizen of the Federation of Malaysia.  He came to Australia on 15 May 2016 as the holder of a visitor visa.  He made an application for the present protection Visa before the visitor visa expired.

7. The application consisted of written claims.  He expanded upon those claims before the delegate but also, more importantly, before the AAT in November 2017.

8. His claims can be summarised as following.  The Applicant is of Indian ethnicity and is a Hindu who speaks, reads and writes in Malay, Tamil and English.  He has a mother who is living in Kuala Lumpur.  In his written application, he said that his father had passed away but told the Tribunal that his father left the family around 2005 and that the Applicant had not had any contact with his father since that time.

9. He has a brother and a sister who live elsewhere but he lives with his mother and another sister.  He said that he is the breadwinner of the family.

10. The Applicant said that he had been the victim of discrimination in Malaysia.  He said that the country is run by Muslims and that Muslims or native Malays are given preferential treatment ahead of Indian Hindus.

    The Claims of the Applicant

11. The Applicant said that he left Malaysia because he was not able to obtain permanent employment after he left high school.  He said he had applied for many jobs in Malaysia but was turned down because Malays are given first priority.  He said that he tried to attend university but he couldn’t because he was not able to afford the tuition fees and he couldn’t get a student loan from the government because he was an Indian Malay.

12. The Applicant said that an agent named Eddy contacted him.  He was promised a job and that he would be able to study in Australia.  He said that upon the promises made by Eddy, he took out a loan and paid to Eddy 10,000 Malay currency.

13. The Applicant said that the job did not eventuate.  The Applicant said that he complained to Eddy that he had not been given full-time employment and not given the opportunity to study.  He said that Eddy told him that if he wanted to remain in Australia to study he would have to pay an additional $4,000 for a student visa. 

14. The Applicant said that he felt misled by Eddy and demanded a refund of his money so that he could return to Malaysia.  The Applicant claimed that Eddy then threatened the mother of the Applicant in Malaysia.  The Applicant said that as a result of this threat, his mother advised him to stay in Australia.

15. The Applicant travelled to Melbourne and his roommate in Melbourne told him that he could apply for a protection Visa and an accompanying bridging Visa so that he could work and get enough money to study.  At the time of the application before the AAT, the Applicant had commenced work in a motor wrecker’s business and commenced an automotive technology course at an education provider.

    Country information

16. The Tribunal utilised country information.  Looked at the economic overview of Malaysia and noted that it was ranked 54 out of 168 countries in the corruption perception index.  The country information was that there had been a significant reduction in poverty and that 0.28% lived below the poverty line.

17. As far as employment was concerned the country information was that there was a labour force participation rate of 67.8% and an unemployment rate of 3.3%.

18. As far as Indian Malays were concerned, country information was that Indian Malays constitute the third largest ethnic group in Malaysia.  There were no laws or constitutional provisions that directly discriminate against this group.  This group also represents a high proportion of professionals including 38% of the entire medical workforce.

19. Country information revealed that Hindus represented 6.3% of the Malaysian population and that the majority of Hindus are Malays and Indians.  Hindus are normally able to practice their religion without interference and do not face official or societal discrimination on a day-to-day basis.

    The decision of the Tribunal

20. The Tribunal accepted the basis of the claims of the Applicant.  The Tribunal accepted that the Applicant came to Australia for a better future.  The Tribunal accepted that the Applicant paid an agent 10,000 Malay currency to travel to Australia on the expectation that he would be given regular employment and be able to study in Australia.

21. Having referred to country information, the Tribunal had to consider whether the Applicant’s claims amounted to him having a real chance of serious harm arising from “economic destitution”.  The Tribunal found that the Applicant was considerably useful; he was fit and able enough to locate work in Australia and enrolled in an order technology course to advance his own skills.  The Tribunal found that this strongly indicated that the Applicant had a good work ethic and that he would be able to find employment anywhere in Malaysia.

22. The Tribunal accepted that there is a level of discrimination against Indian Malays when attempting to gain entry into the state tertiary system or the civil service.  However, the Tribunal pointed out that an Indian Malay has been appointed as chief of police in Kuala Lumpur.  This illustrated that Indian Malays were able to fulfil important roles in Malaysians society.

23. Whilst the Tribunal acknowledged that the Applicant would face difficulties and challenges arising in finding work if he were to return to Malaysia, it did not accept that the Applicant would not be able to access paid employment given his overall motivation and work experience acquired in Australia.  The Tribunal acknowledged that the Applicant feared that he had the burden of generating an income for his mother and sister and that he had genuinely personally had a fear regarding the cost of living being too high and the remuneration too low if he were to work in Malaysia.  But these circumstances did not amount the Applicant facing the harm that would amount to serious harm.

24. The Tribunal found that the Applicant’s claims of suffering economic harm because he is Hindu was not supported by the country information.

25. The Tribunal found that the Applicant did not face a real chance of serious harm now into the reasonably foreseeable future for any reason.  This meant that the Applicant had failed to satisfy the refugee criteria.

26. The Tribunal then looked at the complementary protection criteria.  The Tribunal found that there was no real risk of the Applicant been significantly harmed upon his return to Malaysia.

27. Having made those findings, the Tribunal affirmed the decision not to grant the Applicant a protection Visa.

    The present application

28. The grounds of the application are a series of statements.  However, the grounds numbered five, six, seven and eight disclose matters different to that which was put before the Tribunal.

    5.I applied for protection Visa on the basis of discrimination due to race and religion.  Malaysia is a Muslim country and Muslims are majority in my own country and we Hindus are minority and get treated as we do not belong to this country.  We are treated as different in our own country and we are forced to live the way Muslim live and we are not free to practice our own religion.  We are discriminated even when employment opportunities are considered.  This has led to myself borrowing money wrong people and when I was unable to pay back I was intimidated and threatened to kill at different occasions.

    6.I have been in contact with my family and people I borrowed money from a threatening my family as well to pull money from them and they have also threatened my family saying they will target my (sic) when I return back.  This is clear indication that my life would in danger upon return.

    7.Upon return I would have forced to pay back and upon failure to pay I would be harmed and my life would be in danger.  AAT has made an error in law when they interpret definition of well-founded fear and also definition of refugee when claim that my life is not in danger and I won’t need protection upon return my home country.  Information published by Royal Malaysians police is not entirely accurate when it comes to law and enforcement saving poor and venerable people who are exposed to race and religion discrimination.

    8.We are discriminating every day on the basis of my religion and race and ethnic background.  I have genuine fear for my life and would like to make an application to FCC to seeking new orders and replace old orders made by AAT.

29. The only allegation of jurisdictional error made out in these grounds is that the AAT made an error in law when they interpreted the terms “well-founded fear” and “refugee”. 

30. Having gone through the reasons of the Tribunal, it is clear that the Tribunal did correctly identify what it needed to find to be satisfied that there was a “well-founded fear of persecution” and the definition of “refugee” pursuant to the Migration Act.

31. Because the applicant is unrepresented, I have looked at any other arguments that could have been mounted.

32. There may have been an argument that the AAT did not deal with an allegation that the life of the applicant would be put in danger if he returned to Malaysia because of threats made by Eddy.  This allegation was not part of the claims of the applicant when he made his application in July 2016 (see CB 38 and 39).  The later claim (see CB 109) included an allegation that Eddy blackmailed the mother of the applicant that “he will do something to me in Australia and when I come back to Malaysia… In a fear that he will do something to me, my mother asked me not to come back”.  However, I am not of the view that this amounts to a “claim for protection”.

33. The allegation is that the person Eddy would do something to the applicant in Australia and when he came back to Malaysia.  This means that the threat to do harm by Eddy existed whether the applicant remained in Australia or went back to Malaysia.  For this reason, it is doubtful that this circumstance amounts to “a claim” because the complaint is that the threat exists both in Australia and Malaysia. 

34. The AAT acknowledged that this was part of the applicant’s narrative at paragraph 22 of their reasons.

35. The AAT did not specifically refer to this aspect again but rather spoke, at paragraph 42 of their reasons, to say that they had considered the applicant’s claims to have a real chance of serious harm arising from his economic destitution for any of the reasons mentioned in s.5J(1)(a), if he were to return to Malaysia in the foreseeable future.

36. At paragraph 48, the AAT found that the applicant does not have a real chance of serious harm arising from… any other claimed reasons, if he were returned to Malaysia.  At paragraph 49 the AAT said that having assessed all of the applicant’s claims individually and cumulatively the Tribunal found that he did not face a real chance of serious harm.

37. Notwithstanding that the Tribunal did not mention the allegation that there had been a threat to the mother, other to acknowledge that this was part of the narrative, the Tribunal has said that they have assessed all claims.

38. Apart from writing this “claim” at CB 109, the applicant did not agitate this aspect at the hearing.  It was simply part of all the circumstances and is therefore subsumed in the findings made at paragraphs 48 and 49 of the Reasons.

39. Having considered the matter, I am not of the view that a jurisdictional error has been illustrated.

40. For these reasons, the grounds of the application must fail. 

    Other matters

41. In the hearing before me, the applicant attempted to totally recast his claim for protection.  The Applicant was now making a claim that he is seeking protection because of the fact that he has borrowed money to come to Australia and would not be able to pay it back.  As I have already mentioned, this was no part of any of the claims that had been made to the department or to the AAT.

42. There has never been any allegation at all of reprisals for the lack of repayment of a loan.  Realistically, the applicant has acknowledged this fact and has submitted to the court that he simply wants the opportunity to be able to put all of these arguments to the AAT.

43. The Applicant sent an email to the “migration team” on 30 June 2022.  This email had not made it onto the file but, upon the Applicant mentioning it during the hearing, the migration team were able to send it through to my Associate (who also sent it to the Minister).  That email contained a two-page statement.

44. In that statement, the applicant said that “Eddy” said that “he will do something to threaten me”.  This statement was allegedly made before the applicant made his protection Visa claims.  He said that Eddy called the mother of the Applicant and talked very angrily and told her that he would “wreck me in Australia”. 

45. The Applicant said that he called Eddy and told Eddy that he had made a report to the police (even though he hadn’t actually done this).  He said that Eddy got angry and went to his house and threatened them (without particularising who “them” actually are). 

46. The Applicant said that his roommate suggested that he should apply for a protection Visa.  He said that when they wrote the application for a protection Visa the real situation was not written down.  The Applicant said that he asked his roommate and his roommate said “we can’t, otherwise you will be in big trouble”.  The Applicant said that he agreed.

47. He said that after the AAT hearing he faced a lot of problems from Eddy.  He said that his roommate (who had helped him up till this time) then told everything to Eddy.  The Applicant said that Eddy called him and said that he (the Applicant) had put him in trouble and that he will kill the Applicant once the Applicant returns to Malaysia.

48. The Applicant said that Eddy went to his family’s house and threatened them but that the neighbour came and helped his family.  The Applicant said that Eddy told his mother that he would wait for the Applicant to come back to Malaysia.  He said that the neighbour said that they (presumably Eddy) are really bad people and the neighbour has a lot of people around and asked the Applicant not to come back to Malaysia.

49. The Applicant said that his mother has shifted house to another area but that Eddy could still find them.

50. The Applicant said that his father passed away on 4 June 2018.  The Applicant provided a death certificate.  The Applicant said to his mother that he would come back because of this but his mother told him not to come because “they” are still looking for you.  (I note that the applicant had said in his written application that his father had passed away and, in his oral evidence to the Tribunal, that he had not had any contact with his father since 2005 because his father left the family).

51. The Applicant said that Eddy saw his mother at hospital in 2020.  He said that Eddy asked his mother about him (the Applicant) and asked how long he was going to be in Australia.  He warned the mother that once the Applicant comes home, he will know and he will kill the Applicant.

52. The Applicant said that his mother became very sick on 12 August 2021 and he wanted to come to see her but that she refused and told him not to come back.  The mother was admitted to hospital and his sister told the Applicant not to come.  On 21 August 2021, the mother passed away.  I do note that, according to the death certificate, the mother passed away because of complications with COVID-19 and it would seem to me that it may have been very difficult for the Applicant to have travelled to Malaysia in those circumstances in any event.

53. The Applicant also stated that he is married and he has a four-year-old son and that he is worried about his wife and son if something happened to him. 

54. As I said to the Applicant during the course of the hearing, this information was not before the Tribunal and therefore cannot be part of my deliberations as to whether the Tribunal had committed a jurisdictional error.  The Applicant replied to me that he cannot go back to Malaysia and that he is scared for his life.  He said that he will be killed if he is returned to Malaysia.  He said that he wants an opportunity to put all of this new information to the AAT.

55. As I explained to the Applicant, that is not the function of this Court.  This Court must review the decision of the Tribunal to ascertain whether the Tribunal committed any jurisdictional error.  The Applicant seemed to concede that that the Tribunal had not committed any jurisdictional error but that he wanted the opportunity to put “the full story” before the AAT.

1. This cannot be the basis of a jurisdictional error.

   Conclusion

2. I order that the application be dismissed with costs in the sum of $7467.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       14 July 2022