Fto17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 444
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FTO17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 444
File number(s): MLG 2866 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 2 June 2022 Catchwords: MIGRATION – review of a decision of the Administrative Appeals Tribunal – refusal of protection visas – whether the Tribunal took into account an irrelevant consideration or failed to consider evidence – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5J, 36
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)
Cases cited: Ballantyne v Workcover Authority of New South Wales (2007) 5 DDCR 97
Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council (2009) 168 LGERA 71
Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd (1986) 162 CLR 24
NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of hearing: 2 June 2022 Place: Sydney The Applicants appeared in person Solicitor for the Respondents: Mr K Sypott of Australian Government Solicitor ORDERS
MLG 2866 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FTO17
First Applicant
FTP17
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
2 JUNE 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application filed on 28 December 2017 is dismissed.
3.The first applicant and second applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in the amount of $5,835.
4.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN:
By an application to show cause filed with the Court on 28 December 2017, the applicants seek review of a decision of the Administrative Appeals Tribunal (Tribunal) which was made on 30 November 2017 affirming a decision of a delegate of the Minister (delegate) to refuse to grant them protection visas.
BACKGROUND
The applicants are Malaysian nationals who arrived in Australia on 15 October 2014 (Court Book (CB) 119). The first applicant (applicant) and second applicant are husband and wife respectively.
On 10 July 2015, the applicants applied for the visas (CB 10-90). Their claims for protection can be summarised as follows:
(a)the applicants and their friends invested in a business that performed poorly. These friends blamed the applicants for their financial losses relating to the business and insisted that the applicants repay them as soon as possible. If the applicants did not repay them, they would find and “give a threat” to him, his wife, his family and his in-laws (CB 39, 74);
(b)the disgruntled investors have shamed the applicants on Facebook and sent them threatening SMS messages (CB 39, 74);
(c)the applicants ticked “no” to boxes asking if they had been harmed in, or would be harmed or mistreated upon return to, Malaysia. However, they said that the disgruntled investors would “try disturb my family” (CB 40-41, 75-76);
(d)the Malaysian authorities cannot protect them, because “this case involve the money” and if they interfered “they will also sufer (sic)” (CB 41, 76); and
(e)the applicants cannot relocate within Malaysia, because the disgruntled investors will try to find them (CB 40, 75).
On 30 October 2015, the delegate refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (Act) (CB 119-132).
On 24 November 2015, the applicants lodged an application for review of the delegate’s decision with the Tribunal (CB 133-135).
On 16 June 2016, the applicants appeared before the Tribunal for a hearing. They were assisted at hearing by an interpreter in the Malay language (CB 172-174).
On 30 November 2017, the Tribunal affirmed the delegate’s decision (CB 198-210).
Tribunal decision
The Tribunal accepted that the applicants had been involved in a “pyramid scheme” and that their friends had invested money with them as part of that scheme ([56]).
The applicants provided evidence of text messages sent to the second applicant enquiring about the applicant’s whereabouts and asking for the return of money. The Tribunal considered Facebook posts and messages from a disgruntled investor asking for money, stating that he would be happy to see the applicant dead and making threats to the applicants and also about their child. The Tribunal accepted that that these messages and threats occurred. The Tribunal also noted evidence from the second applicant’s sister that her brothers and their friends were also disgruntled investors, and that she believed that may kill the second applicant ([57]).
However the Tribunal did not accept that disgruntled investors, including family and friends of the applicants who had invested in the scheme would seek to harm the applicant including because:
(a)the threats had never eventuated in further action against the applicants or their families, despite the applicant’s claim that the disgruntled investors could find him in Australia ([58]-[59]);
(b)the friends of the second applicants brother were angry, but they had not taken out their anger on the brother, so it was highly unlikely that they were would be perpetrators of violence or harm amounting to serious or significant harm towards the applicant ([58]); and
(c)time had passed since the investment loss and there was no indication that the applicant had actually mislead the investors instead they invested “knowingly and willingly” ([59]).
The Tribunal found that the disgruntled investors would also not seek to harm the second applicant, for largely the same reasons. It also noted that the second applicant’s sister was “keen to understand when [the second applicant] could return home to Malaysia”; this evidence was seen to be inconsistent with this witness’ evidence that she feared that the second applicant could be killed upon return to Malaysia ([60]).
The Tribunal noted that the applicants’ claims for protection did not disclose a ground for protection of a kind relating to a Refugees Convention ground (i.e. race, religion, nationality, membership of a particular social group or political opinion) ([61]). Further, it had regard to country information from the Department of Foreign Affairs and Trade about the competence of the Royal Malaysian Police (RMP) and was satisfied that the Malaysian State was willing and able to provide state protection to the applicants ([62]). Accordingly, it was not satisfied that the applicants were owed refugee protection under s 36(2)(a) of the Act ([64], [66]-[67]).
In respect of complementary protection under s 36(2)(aa) of the Act, the Tribunal found that the applicants did not face a real risk of suffering significant harm as a necessary and foreseeable consequence of their return to Malaysia. It did so on the basis of the following findings:
(a)the applicants did not report the threats to the RMP, which indicated that they were not significant in nature;
(b)there was a lengthy delay between the applicants’ arrival in Australia and their application for protection, and the Tribunal did not consider their explanation that they were not legally represented to be an adequate one; and
(c)the applicants had failed to attend a protection visa interview with the Department, and claimed that they had not done so because they thought it was optional. The Tribunal considered that this indifference to the interview was not consistent with the applicants facing a real risk of significant harm ([63]).
The Tribunal noted that there was no suggestion that the applicants satisfied s 36(2) of the Act on the basis of being members of the same family unit as a person who satisfied ss 36(2)(a) or (aa). Accordingly, it concluded that ss 36(2)(b) and (c) were not satisfied ([70]-[71]).
APPLICATION TO THIS COURT
By their application to show cause, the applicants seek judicial review of the Tribunal’s decision under s 476 of the Act and raise a single ground of review with two particulars as follows (errors in original):
1.THE TRIBUNAL DID NOT MAKE IT’S DECISION ON 30/11/17 ACCORDING IN LAW, IN THAT:
1)THE TRIBUNAL COMMITED JURISDICTION ERROR BY TAKING INDOOR ACCOUNT IRRELEVANT CONFIDERATION.
2)THE TRIBUNAL HAS MADE DECISION WITHOUT LOOKING FIT THE EVIDENCE OF THE APPLICANT.
On 3 October 2018, a Registrar of this Court made orders by consent which provided for the applicants to file and serve an amended application and their written submissions 28 days before the final hearing. Neither document was forthcoming in time or at all. The Minister filed written submissions in accordance with the Court’s orders. Also on 3 October 2018, the applicants filed a Notice of Address for Service which provided an updated postal address and provided two new email addresses in place of the email address which had been included on the originating application. Those email addresses used the respective usernames which appear to be one for each of the applicants and each of which end in yahoo.com (Yahoo Addresses).
On 22 March 2022, the parties were sent a listing notice notifying them of today’s hearing which was sent to the applicants utilising each of the Yahoo Addresses. On 1 June 2022, the Court sent the parties an email with a link to today’s Microsoft Teams hearing. This was again sent to each of the Yahoo Addresses.
At 10.15 am today, which was when the matter was listed, the applicants were not present in the online hearing forum. I delayed the commencement of the hearing by five minutes to give them an opportunity to connect. At approximately 10.21 am, the applicants were still not present in the online hearing forum, and the hearing commenced. I had the matter called outside the courtroom in Sydney out of an abundance of caution, and there was no appearance by, or for, the applicants in Sydney either. Accordingly, the solicitor for the Minister made an application that the matter be dismissed for want of appearance pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), in support of which the affidavit of Keith Maxwell Sypott, affirmed 19 May 2022, was read.
Moments before I determined the application for dismissal for want of appearance, I received a communication from the Court’s Melbourne Registry to indicate that the applicants had attended the Melbourne Registry in person, notwithstanding the fact that they had yesterday been informed that the hearing would take place via Microsoft Teams. I adjourned the matter so that we could explore the possibility of utilising a courtroom in the Melbourne Court building. However, due to the listing demands of that Registry, the applicants were accommodated in a conference room and were able to connect to the Microsoft Teams hearing via telephone.
The applicants were assisted throughout the hearing before me with an interpreter in the Malay language. I explored with the applicants the possibility that they may wish the matter to adjourn if, on another occasion, they would be able to better connect to a Microsoft Teams hearing using a computer that would also enable them to appear with video. I was informed by the applicant that there would be little utility in adjourning because the applicants do not have a computer at home, that they would in any event reconnect on another occasion using telephone only, and that it was their preference that the matter would proceed today as listed. Accordingly, we proceeded with the hearing this morning.
Given that there are two applicants, I asked whether or not they would each wish to address the Court. The first applicant indicated that he would speak on behalf of each of the applicants. I indicated that this was acceptable but that if at any time the second applicant wished to address me, she should let the interpreter know. The second applicant did not seek to address the Court at any time. I reinvited the second applicant to do so again at the time of submissions in reply. She did not take up this opportunity.
From the Court’s perspective, the connection has appeared clear throughout the entirety of the hearing without any technical difficulties. At a certain juncture the solicitor for the Minister indicated that he was having difficulty with the connection and that his screen was freezing, and I adjourned briefly to enable him to reconnect by telephone only. I am satisfied that the parties and the interpreter have not had any difficulty in understanding one another, nor engaging with the Court.
Turning to the grounds of review, the first particular to the ground of review can be taken as an assertion that the Tribunal made a decision which took into account irrelevant considerations. Jurisdictional error in this regard would be made out where either expressly or by implication a decision-maker takes into consideration something which they are forbidden or prohibited from taking into account. This is in contrast to the concept of failing to take into account a relevant consideration. The former is prohibited, while the latter is mandated: see Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40, per Mason J (as his Honour then was); Ballantyne v Workcover Authority of New South Wales (2007) 5 DDCR 97 per Basten J at [113] and Minister Administering the Crown Lands Act v Illawarra Local Aboriginal Land Council (2009) 168 LGERA 71 per Hodgson J at [80]. The extraneousness of the consideration is to be viewed within the context, scope of purpose of the relevant statute: NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277.
When asked to speak to this ground, the applicant said that the Tribunal made a conclusion the evidence he had provided was untrue. I indicated to the applicants, because they had not advanced by reference to the scope or purpose of the Act which irrelevant consideration the Tribunal was said to have taken into account, that they should do so at the hearing. In doing so, I explained to the applicants that I was not in a position to assess their claims for myself and that the jurisdiction of the Court was limited to assessing whether or not there was a serious legal error in the decision of the Tribunal.
I asked the applicant what conclusions had been made by the Tribunal that the evidence that he provided was untrue and what that evidence was said to be. I also noted that, in contrast to that submission, the Tribunal had actually accepted the applicants’ claims, insofar as they accepted that the applicants had been involved in a pyramid scheme into which they had inveigled friends and family, and that they had received threats as a result of the failure of that scheme. The applicant told me that the Tribunal had failed to accept that if the applicants were to return to Malaysia, they would face harm. The applicant said that the Tribunal had referred “to a system of safety” whereby it claimed that Malaysia had “a good system of safety”, but that he disagrees with this. The applicant said that there are many cases in Malaysia involving safety which are resolved after the event. The applicant further said that, while the Tribunal found that he and his wife would be safe in Malaysia, because it is a large country, and that they could go to another part of Malaysia, the people who had joined the pyramid scheme are “all around Malaysia and can locate them based on the evidence given”.
In this regard, and notwithstanding the fact that the applicants indicated they understood that the Court cannot assess their claims, the above submissions go largely to the merits of the applicants’ protection visa claims and their general disagreement with the findings of the Tribunal. Moreover, they do not particularise which are the irrelevant considerations which the applicants say the Tribunal took into account.
A reading of the Tribunal’s decision in total reveals that it considered each and all of the applicants’ claims against the relevant statutory criteria which fell for consideration in relation to the protection visa. The Tribunal considered whether the applicants feared persecution by reference to s 5J(1)(a) of the Act and also, whether they satisfied either of ss 36(2)(a) or (aa) of the Act. By reference to the context, scope and purpose of the Act, in my view the Tribunal did not take into account any irrelevant considerations as alleged, or at all, and this aspect of the ground of review is not made out.
In relation to the second particular, the applicants allege that the Tribunal made the decision without looking at the evidence of the applicant. When asked to speak to this ground and particularise it, the applicant made submissions to the effect that the Tribunal had said that this issue they faced would resolve over time. The applicant said that what was concerning to him was his reputation and the reputation of his wife, and he said that he was traumatised and depressed and ashamed to return to Malaysia.
In relation to which evidence was said to have not been considered, the applicant drew the Court’s attention to page 139 of the Court Book which is one of many screenshots of threats which had been made to the applicants, this one in particular on Facebook. The applicant said again that he would be very ashamed if he had to return because of his reputation and that he believed that, if he was to return to Malaysia, something bad would happen to him, his wife and his children.
In submissions in reply, the applicant also said that he understood and accepted that there were many reasons why he needed to depart Australia, but there was one very strong basis upon which he should be entitled to remain. This was said to be that, even if there is an impressive police force in Malaysia, “we all know that, because of money, there are money people in this world who cannot think clearly, and who will do many things to get satisfaction.” The applicant said that, at the moment, there are people in Malaysia who “are taking excessive measures and planning to take action” on his return and that they know that the applicant has had protection in Australia. The applicant said that he admits that the RMP is extensive and impressive, but there are many reports of deaths in Malaysia and the police cannot protect everyone all the time.
In relation to these submissions, the solicitor for the Minister said they reiterate the underlying protection claims of the applicants and do not disclose any error in the decision of the Tribunal. I agree. In relation to the allegation that the Tribunal made the decision without looking at the evidence of the applicants, again, a review of the decision of the Tribunal reveals no such error. The applicants’ claims were accurately set out at CB 201 at paragraphs [17] to [20] and considered thereafter. The Tribunal also set out the evidence given at the hearing under a heading “Submissions to the Tribunal and evidence taken at hearing”. There, the Tribunal first summarised written submissions which had been provided before, and another at the hearing, at CB 202 at paragraphs [23] to [28]. This included evidence which had been submitted by the applicants in written submissions and also various screenshots, all of which is referable to parts of the Court Book. Thereafter, the Tribunal detailed the oral evidence which was given by the applicants who both attended the hearing to give evidence and present arguments, at paragraphs [29] to [55] of the decision. In addition, the Tribunal took evidence from the second applicant’s sister whom, at paragraph [53], it records telephoning. This was at the specific request of the applicants in their response to the Tribunal’s hearing invitation.
That the applicants are dissatisfied with the Tribunal’s decision, and in particular, its findings after considering their evidence, does not constitute a jurisdictional error. The Tribunal accepted the background to the claims of the applicants, the claims themselves and the threats that they had received but it was not satisfied that the applicants faced harm for a Convention reason, and in any event, found that they could seek protection if required, relying on independent information regarding the RMP, at paragraphs [61] to [62]. Those findings were open to the Tribunal and contrary to what was submitted for the applicants today, what is required in an assessment of whether or not effective state protection can be accessed is not a guarantee against harm. The Tribunal was also not satisfied that the applicants met the complementary protection criterion for similar reasons, and these findings were also open to it on the material before it. There is no evident failure on the part of the Tribunal to have considered all of the evidence before it. Accordingly, the second component of the ground must also fail.
Absent a jurisdictional error, the decision is therefore a prohibitive clause decision and should be dismissed. I will so order.
Consequent upon the dismissal of the matter, the solicitor for the first respondent seeks, inter alia, an order that the applicants pay the first respondent’s costs. The amount sought is $5,835, which I note is approximately $2,000 less than the Court’s present scale. There is nothing in the present matter that would warrant, in my view, a departure from the ordinary rule that costs should follow the event and I am further satisfied that the amount sought is reasonable, having regard to the work done in the matter and similar matters by reference to the Court scale.
The applicant, in submissions in relation to this, asked if the costs could be further reduced, and also asked for a period across which this amount could be paid. I explained to the applicants that they will receive correspondence from the solicitors for the Minister, which will indicate to them with whom at the Department they can discuss these matters. However, I am satisfied that the amount sought is reasonable.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 16 June 2022
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