FQK17 v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2022] FedCFamC2G 695

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FQK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 695    

File number: MLG 2795 of 2017
Judgment of: JUDGE LADHAMS
Date of judgment: 25 August 2022
Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant protection visa – whether Tribunal misunderstood or misapplied relevant law – whether Tribunal decision is illogical or irrational – no jurisdictional error – application dismissed.
Legislation: Migration Act 1958 (Cth) ss 5J, 36, 476, 477
Cases cited:

Bala v Minister for Immigration and Border Protection [2019] FCA 600

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774

WZATH v Minister for Immigration and Border Protection [2014] FCA 969

WZATH v Minister for Immigration and Border Protection [2014] FCCA 612
Division: Division 2 General Federal Law
Number of paragraphs: 46
Date of hearing: 22 August 2022
Place: Perth
Applicant: In person
Counsel for the First Respondent: Ms G Ellis
Second Respondent: Submitting appearance, save as to costs
Solicitor for the Respondents: Sparke Helmore Lawyers

ORDERS

MLG 2795 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

FQK17

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE LADHAMS

DATE OF ORDER:

25 AUGUST 2022

THE COURT ORDERS THAT:

1.The application 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 LADHAMS:

INTRODUCTION

  1. By application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act), the applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal). On 20 December 2017 the Tribunal affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.

  2. For the reasons explained below, I find that there is no jurisdictional error in the Tribunal decision. I therefore dismiss the application for judicial review.

    BACKGROUND

  3. The applicant is a citizen of Malaysia who entered Australia in March 2016 on an Electronic Travel Authority.

  4. On 15 June 2016 the applicant lodged an application for a protection visa. The applicant claimed to fear returning to Malaysia because she had filed for bankruptcy due to a historical debt with a public bank and her family was torturing her for money causing her mental stress. The applicant also claimed to fear harm from her brother in Malaysia because the bankruptcy file included his name.

  5. On 21 July 2017 a delegate of the Minister made a decision not to grant the applicant a protection visa. The delegate found that the applicant’s fear of persecution was not for any of the reasons in s 5J(1)(a) of the Migration Act, and there would not be a real risk that she would face significant harm. Accordingly, the applicant did not meet the criteria for a protection visa.

  6. On 4 August 2016 the applicant lodged an application to the Tribunal seeking review of the delegate’s decision.

  7. The applicant attended a hearing convened by the Tribunal on 22 November 2017 to give evidence and present arguments. The applicant raised an additional claim for protection at the Tribunal hearing, claiming that she came to Australia because her then-husband was abusive and she did not feel safe with him, and she fears harm from him if she returns to Malaysia as he is angry and ashamed because they are now divorced.

  8. On 5 December 2017 the Tribunal affirmed the delegate’s decision.

    TRIBUNAL DECISION

  9. The Tribunal accepted that the applicant was verbally mistreated by her ex-husband and that they quarrelled over his treatment of her son. The Tribunal also accepted the applicant’s evidence that on two occasions, her ex-husband went to hit her but did not actually hit her. The Tribunal accepted that the applicant had been threatened by her ex-husband at some point in the past and that she did not feel safe with him. However, the Tribunal did not accept the applicant’s claim that this conduct amounted to ‘torture’ and the Tribunal did not accept that the applicant’s ex-husband had threatened her after her arrival in Australia. The Tribunal considered that any chance or risk that the applicant would face harm from her ex-husband upon return to Malaysia would be remote, noting that her evidence was ‘vague and limited’ and that the ex-husband’s past conduct did not indicate that he intended to harm the applicant in any way. The Tribunal also observed that during the hearing, the applicant had said that her reason for coming to Australia was to escape her ex-husband and asserted this to be her only fear of harm and concern if returned to Malaysia. The Tribunal considered that if this was the case, the applicant would have mentioned this claim in her protection visa application. The Tribunal found that the applicant’s claims in relation to her ex-husband did not engage Australia’s protection obligations under the refugee criterion or the complementary protection criterion.

  10. The Tribunal accepted that the applicant and her brother took out a housing loan in a joint account in 2002 and bought an established house which they soon came to realise had problems with termites which caused leakages that could not be repaired. The Tribunal accepted that when the applicant’s first husband passed away she was unable to continue to pay the mortgage and that the bank sold the property at a lower price than she had paid and that she continued to owe a sum of money to the bank. The Tribunal noted that following clarification of the applicant’s evidence, the applicant indicated that she had not been declared bankrupt. Rather the bank had initiated insolvency proceedings before negotiating an arrangement with the applicant that she make payments to the bank of a certain amount per month. Based on this evidence, the Tribunal did not accept that the applicant was already a bankrupt. The Tribunal considered that the applicant had demonstrated experience and skills in the workforce in both Malaysia and Australia and would be able to earn an income from employment on return to Malaysia. The Tribunal acknowledged that the applicant may experience some financial hardship if she returns to Malaysia, but considered that she would have the means to continue making payments as agreed to the bank. The Tribunal did not accept that the applicant would face bankruptcy proceedings on this basis. While the Tribunal accepted that the applicant may encounter a degree of financial hardship, the Tribunal did not accept that the applicant would experience severe economic hardship that threatened her capacity to subsist or that she would be denied the capacity to earn a livelihood. The Tribunal considered that the applicant would not face a real chance of serious harm or a real risk of significant harm as a result of the money she owes to the bank.

  11. The Tribunal also considered whether the applicant would have a well-founded fear of persecution or a real risk of significant harm in the event that she fails to make the payments negotiated with the bank. The Tribunal accepted that if the applicant did become bankrupt, she may experience some limitations such as being unable to leave Malaysia without permission, she may have to sell property and may be unable to obtain further credit or finance. However, the Tribunal noted that the applicant would be able to continue to work and was not satisfied that there was a real risk that the applicant would face serious harm or a real risk of significant harm as a consequence of any bankruptcy proceedings. Further, the Tribunal considered that the application and enforcement of the law under the Bankruptcy Act 1967 (Malaysia) would apply to the population generally in circumstances where people did not meet their financial obligations.

  12. The Tribunal had serious doubts about the credibility of the applicant’s claim to fear harm from her brother. The Tribunal did not accept that the applicant’s brother had been declared bankrupt, or was unable to work because of any bankruptcy. The Tribunal considered the applicant’s claim that her brother would harm her in Malaysia to be purely speculative and did not accept that the applicant had a real chance of serious harm from her brother. The Tribunal also did not accept that the applicant would face a real risk of significant harm from her brother if she returned to Malaysia.

  13. The Tribunal took into account that the applicant feels under pressure to contribute to her family because of the financial difficulties her family has experienced since her father died, but was not satisfied that these claims arose for one or more of the reasons set out in s 5J(1) of the Migration Act. While the Tribunal acknowledged that the applicant may find her own and her family’s financial circumstances stressful, it did not accept that her family have mistreated or harmed her for any reason.

  14. The Tribunal concluded that the applicant did not meet the criteria for a protection visa and affirmed the delegate’s decision.

    PROCEEDINGS BEFORE THIS COURT

  15. The applicant filed her application for judicial review on 20 December 2017 which is within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.

  16. The application sets out a single ground of review:

    The decision of the AAT is affected by jurisdictional error.

    Particulars

    a.The tribunal has erred when it concluded the applicant does not have a well founded fear of persecution or a real risk of significant harm from her ex husband.

    b.The tribunal has erred by concluding that the applicant does not meet the criteria in s 5J(1) (a) of the Act.

    c.The tribunal has also erred when it concludes that she will not suffer significant harm as a consequence of any bankruptcy proceedings that are brought against her.

    d.The tribunal has erred in its assessment of the complementary protection criterion in s 36(2) (aa).

  17. On 5 October 2021 a Judge of this Court made an Order requiring the applicant to file and serve any amended application with particulars of the grounds of the amended application, any affidavits, supplementary court book and written submissions by 5 December 2021. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions on 4 February 2022 in accordance with the Order.

    CONSIDERATION

    Need to establish jurisdictional error

  18. The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3, where the Full Court said at [17]:

    … an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

  19. In order to be entitled to relief, the applicant must establish that the Tribunal decision is affected by jurisdictional error.

  20. Jurisdictional error was explained by Nettle and Gordon JJ in the High Court’s decision in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA), where their Honours said at [81] (footnotes omitted):

    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. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf [(2001) 206 CLR 323 at 351 [82]]:

    “What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.” (emphasis added)

  21. To amount to a jurisdictional error, any error by the Tribunal must be material, in the sense that the error could realistically have deprived the applicant of the opportunity of a successful outcome: SZMTA at [45].

  22. The Court has no jurisdiction to consider the merits of the Tribunal decision or to decide for itself whether the applicant meets the criteria for a protection visa: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].

    Matters raised by the applicant at the hearing

  23. The applicant did not address in her oral submissions the grounds raised in her written application.

  24. Rather, in her oral submissions, the applicant claimed that she faces a life threatening situation and needs protection from Australia because she is a single mother who needs to look after her son, she ran away from her second husband and is scared to go back. She said in her reply submissions that she did not mention her fear of her ex-husband in her protection visa application because she did not understand what she was applying for at the time and was scared. She said that she explained to the Tribunal that she had run away from her ex-husband and does not know why the Tribunal did not accept it. She is trying to improve herself in Australia by engaging in study and has one year of study to go and wishes to see her son again but fears that something will happen to her and her son if she returns to Malaysia.

  25. None of these matters assert any jurisdictional error in the Tribunal decision. Rather, the applicant is asking the Court to find that she is owed protection obligations by Australia. This is beyond the jurisdiction of the Court. As explained to the applicant at the hearing, the Court does not have the power to decide for itself whether she meets the criteria for a protection visa, or to grant her a protection visa.

    Grounds raised in written application

  26. The applicant’s single ground of application asserts that the decision of the Tribunal is affected by jurisdictional error for four reasons. Those reasons, included in the application as particulars, do not explain in any meaningful way the nature of the error asserted by the applicant. Rather, they amount to bare assertions that the Tribunal erred:

    (a)by concluding that the applicant did not have a well-founded fear of persecution or would face a real risk of significant harm from her ex-husband;

    (b)by concluding that the applicant does not meet the criteria in s 5J(1)(a) of the Migration Act;

    (c)by concluding that she will not suffer significant harm as a consequence of any bankruptcy proceedings that are brought against her; and

    (d)in its assessment of the complementary protection criterion in s 36(2)(aa) of the Migration Act.

  27. The Minister submitted that the lack of meaningful particulars in the application is a sufficient basis for the application to be dismissed, relying on WZATH v Minister for Immigration and Border Protection [2014] FCCA 612 at [60], approved in WZATH v Minister for Immigration and Border Protection [2014] FCA 969. While that may be true, it is also open to me, in circumstances where the applicant is self-represented, to decline to dismiss the ground solely on the basis that it is not particularised in a meaningful way: see, for example, Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [7]. I consider the preferable course is to consider the applicant’s ground notwithstanding that the applicant has not provided meaningful particulars.

  28. The applicant’s ground appears primarily to be an assertion of disagreement with the Tribunal decision. As indicated above, this Court does not have the jurisdiction to consider for itself the factual merits of the decision reached by the Tribunal and, to the extent that the ground invites the Court to reach a different conclusion on the factual merits, it must be dismissed.

  29. The applicant’s ground might generously be interpreted as an assertion that the Tribunal decision is illogical or irrational, or that the Tribunal has misunderstood or misapplied the relevant law.

  30. The High Court considered the circumstances in which an administrative decision might be said to be illogical or irrational in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16. Justices Crennan and Bell explained at [131] and [135]:

    131.… The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

    …

    135.… Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…

  31. The Tribunal identified the applicant’s claim to fear harm from her ex-husband in Malaysia at [16] of its reasons and carefully addressed that claim at [21]-[36] of its reasons.

  32. The Tribunal accepted at [26] of its reasons that:

    (a)the applicant was verbally mistreated by her ex-husband;

    (b)the applicant and her ex-husband quarrelled about his treatment of her son;

    (c)on two occasions, her ex-husband went to hit her but noted that he did not do this; and

    (d)the applicant’s ex-husband threatened her in some way in the past and that she did not feel safe with him,

    but did not accept that this conduct amounted to ‘torture’ as defined in s 5(1) of the Migration Act.

  1. The Tribunal also noted at [27] that the applicant’s response when questioned about the basis of her claim that her ex-husband would harm her on her return to Malaysia was ‘vague and limited’ and it did not accept that her ex-husband threatened her subsequent to her arrival in Australia. The Tribunal expressed its expectation at [33] that if the applicant left Malaysia as claimed because she feared harm or mistreatment at the hands of her ex-husband, and that this was her only or her main concern about returning to Malaysia, she would have mentioned this claim in her protection visa application.

  2. The Tribunal then found that the chance or risk of harm that the applicant would face from her ex-husband was remote and that she did not face a real risk of significant harm from her ex-husband in circumstances where:

    (a)a period of eighteen months had elapsed since the applicant’s departure from Malaysia: at [30];

    (b)the applicant’s last contact with her ex-husband was six months ago at her initiation where her ex-husband indicated a wish to have no contact with her: at [30];

    (c)the past conduct of the applicant’s ex-husband did not indicate that he intends to harm the applicant in any way: at [31]; and

    (d)the applicant would live at her family home which is a long distance from her ex-husband’s home: at [31].

  3. The Tribunal’s findings in relation to the applicant’s claim that she would face harm from her ex-husband were reasonably open to it on the evidence before it. The Tribunal provided a logical and cogent explanation for its conclusions that the applicant’s fear of harm from her ex-husband was not well-founded, and that the claimed harm was not harm that met the definition of ‘significant harm’ in s 36(2A) of the Migration Act. The Tribunal’s conclusion in relation to the applicant’s claim to fear harm from her ex-husband was not illogical or irrational. There is also nothing in the Tribunal’s consideration of the applicant’s claim to face harm from her ex-husband that would suggest that the Tribunal has misunderstood or misapplied the relevant law.

  4. The second basis on which the applicant claims the Tribunal decision is affected by jurisdictional error is based on its conclusion that the applicant does not meet the criteria in s 5J(1)(a) of the Migration Act. That sub-paragraph provides:

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:

    (a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; …

  5. The Tribunal rejected some, but not all, of the applicant’s claims on the basis that the claimed fear of harm was not for one of the reasons set out in s 5J(1)(a) of the Migration Act. Those claims that were rejected solely or partly on the basis that they were not for one of the reasons set out in s 5J(1)(a) of the Migration Act include the applicant’s claims that:

    (a)she will face harm from financial hardship: at [42];

    (b)her family was torturing her for money causing her mental stress, which was apparently based on the pressure the applicant felt to contribute to her family finances since the death of her father: at [54];

    (c)she has experienced personal loss in respect to her marriages: at [56]; and

    (d)separation from her current partner will be distressing: at [57].

  6. In each of these instances, it was open to the Tribunal to find that the applicant’s claim did not amount to a claim to face harm by reason of her race, religion, nationality, membership of a particular social group or political opinion.

  7. The Tribunal did not mention s 5J(1)(a) of the Migration Act in its rejection of the applicant’s claims to face harm on the basis of her possible bankruptcy proceedings or the possibility of violence from her ex-husband. However, this does not amount to error as the Tribunal had other reasons for rejecting those claims. The Tribunal rejected the applicant’s claim that she may face harm from her ex-husband on the basis that the chance of harm was remote and the applicant’s fear did not amount to a well-founded fear of persecution. The Tribunal rejected the applicant’s claim that she may face harm from bankruptcy if she does not pay the bank pursuant to the agreed arrangement because it was not satisfied she would face serious or significant harm and any bankruptcy proceedings taken against her would be based on a law of general application and would not constitute persecution for the purposes of s 5J of the Migration Act. Again, these findings were open to the Tribunal and do not disclose any illogicality, irrationality or misunderstanding or misapplication of the relevant law.

  8. The third basis on which the applicant alleges jurisdictional error is that the Tribunal erred in concluding that the applicant would not suffer significant harm as a consequence of any bankruptcy proceedings that are initiated against her.

  9. There are two relevant aspects to the Tribunal’s reasoning in relation to the applicant’s claims to face bankruptcy. The first is that the Tribunal considered that the applicant would be able to find employment and would have the means to continue paying the bank, and therefore would not face bankruptcy proceedings: see [41] of the Tribunal’s reasons. The Tribunal considered that the applicant may face economic hardship, but did not accept that she would face severe economic hardship that might threaten her capacity to subsist, or to otherwise amount to serious harm (as defined in s 5J(5) of the Migration Act) or significant harm (as defined in s 36(2A) of the Migration Act). The second aspect of the Tribunal’s reasoning is based on the counterfactual that the applicant does not make payments to the bank as agreed. The Tribunal found that even if the applicant is made bankrupt, she would still be able to work and live with her mother, and would have the capacity to subsist, and would not face treatment that would amount to serious harm or significant harm, as defined. The Tribunal further found that the relevant bankruptcy legislation was a law of general application, the enforcement of which does not constitute discrimination or amount to persecution for the purposes of s 5J of the Migration Act. The Tribunal for the purposes of s 36(2B)(c) of the Migration Act found that the application of the bankruptcy legislation is a risk faced by the population generally in circumstances where people do not meet their financial obligations.

  10. Again, there is nothing in the Tribunal reasons to suggest that it misunderstood the relevant law, and the Tribunal’s reasons were logically and rationally open to it on the evidence before the Tribunal.

  11. The fourth reason given by the applicant as to why she says the Tribunal decision is affected by jurisdictional error is that the Tribunal erred in its assessment of the complementary protection criteria in s 36(2)(aa) of the Migration Act.

  12. The Tribunal’s findings in relation to its assessment of the complementary protection criteria in 36(2)(aa) were based on the findings of fact made in relation to the refugee criteria in s 36(2)(a). There is no error in the Tribunal referring to previous factual findings made for the purpose of reaching its conclusion that the applicant did not meet the complementary protection criteria in s 36(2)(aa) of the Migration Act: see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56]. As concluded throughout this judgment, the findings made by the Tribunal in relation to each of the applicant’s claims were not illogical or irrational and these findings were reasonably open to it on the evidence.

  13. The ground in the applicant’s written application does not establish jurisdictional error.

    CONCLUSION

  14. The applicant has not established that the Tribunal decision is vitiated by jurisdictional error. It follows that the application for judicial review is dismissed.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.

Associate:

Dated:       25 August 2022

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