GGW18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 970
•2 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GGW18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 970
File number(s): MLG 3652 of 2018 Judgment of: JUDGE CUTHBERTSON Date of judgment: 2 October 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming decision not to grant a visa – protection claim relating to loan sharks – whether the Tribunal was required to consider evidence not raised – adverse credibility findings – no arguable case of jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 1.07, 7.01, 7.02
Cases cited: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589
Division: Division 2 General Federal Law Number of paragraphs: 56 Date of last submission/s: 3 September 2024 Date of hearing: 3 September 2024 Place: Melbourne The Applicant: In person Counsel for the First Respondent: Ms N. Bosjnak Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3652 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GGW18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
2 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.Pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), the application filed on 3 December 2018 is amended so as to seek a writ of mandamus.
3.Pursuant to rr 1.07 and 7.02 of the Rules, the Court dispenses with any requirement to make, file or serve an amended application as ordered in Order 2 above.
4.The applicant’s application for judicial review filed on 3 December 2018 as amended 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 CUTHBERTSON
INTRODUCTION
On 3 December 2018 the applicant filed an application pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) for judicial review of a decision of the second respondent (the Tribunal) made on 31 October 2018 (application). By its decision, the Tribunal affirmed a decision of a delegate of the first respondent (the Minister) dated 21 March 2017 refusing the applicant a Protection (Class XA) (subclass 866) visa (the visa). The Minister opposes the application. For the reasons that follow, the application is dismissed.
BACKGROUND
The applicant is a citizen of Malaysia (Court Book (CB) 14, 38). She arrived in Australia on 16 December 2016 on a tourist visa (CB 23, 44).
The applicant applied for the visa by an application dated 12 January 2017 and received by the then named Department of Immigration and Border Protection on 17 February 2017 (visa application) (CB 1-38).
The applicant's claim for protection set out in her visa application was as follows (CB 32):
The reason i leave Malaysia because i had debt with shark loan with huge amount. They tend to force me to pay the money in short time. Besides, they blackmailing to kill me if I not pay the money as soon as possible. Since I cannot fulfil their request, I decided to run away far from Malaysia.
No further details of her claim for protection were provided in the application form.
On 21 March 2017, a delegate of the Minister (the delegate) refused to grant the applicant's visa (CB 40-52) (delegate’s decision). The applicant was notified of this decision by letter the same day.
On 28 March 2017, the applicant applied to the Tribunal for a review of the delegate's decision (CB 53-67). On 31 March 2017, the Tribunal wrote to the applicant acknowledging receipt of her application for review. In that letter, the Tribunal advised that if the applicant wished to provide material or written arguments for it to consider, she should do so as soon as possible (CB 68-70).
On 12 January 2018, the Tribunal wrote to the applicant advising that it was unable to make a favourable decision on the information contained in the application alone. The letter invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in her case on 15 February 2018. The letter also requested that the applicant read, complete and return an enclosed ‘Response to hearing invitation - MR Division’ form. She was also asked to use this form or attach any additional information if she had any requests or new information which she wished the Tribunal to consider (CB 71-76). There is no record of the applicant providing a completed form to the Tribunal prior to the hearing of her application for review.
The Tribunal’s hearing was conducted on 15 February 2018. The applicant attended in person with the assistance of an interpreter in the Malay language. The hearing record indicates that no documents were received during the course of the hearing. The hearing commenced at 3:28pm and concluded at 4:15pm (CB 78-80).
On 31 October 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant's visa (CB 84-97). The applicant was notified of the decision by email dated 1 November 2018 (CB 82-83).
THE DELEGATE’S DECISION
In their decision dated 21 March 2017, the delegate found that the applicant was not a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) or (aa) of the Act and was not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant: ss 36(2)(b) and 36(2)(c) of the Act (CB 59). An assessment in relation to s 36(2C) was not made given that the delegate was not satisfied the applicant was a person in respect of whom Australia has protection obligations (CB 66). In arriving at that conclusion, the delegate made the following findings:
(a)the applicant is a national of Malaysia and Malaysia is their receiving country (CB 61);
(b)the applicant does not have the right to enter and reside in a country other than Malaysia, meaning s 36(3) of the Act does not apply (CB 61);
(c)the applicant's claim of fear of harm because of an inability to repay her loan and the threats of blackmail and death if she did not repay the money did not constitute a claim of fear of harm because of their race, religion, nationality, political opinion or being a member of a particular social group. The delegate was not satisfied that there was a real chance of persecution in Malaysia for one or more of the reasons mentioned in s 5J(1)(a) of the Act. The applicant, therefore, did not meet the definition of a refugee according to s 5H of the Act and s 36(2)(a) of the Act was not satisfied (CB 61-62);
(d)the delegate noted that the applicant's claims were identical to two others and that she had outlined her situation in minimal detail and provided no supporting evidence to corroborate her claims. The delegate considered it reasonable to expect a person who genuinely feared harm in their country of nationality to present their case in sufficient detail for the decision maker to be satisfied of the genuineness of the fear. The delegate also noted that the applicant did not indicate whether she had sought protection from the authorities following the threats she received. The delegate noted that when considering the issue of adequacy of state protection, according to case law, a state is not required to provide “absolute protection” of an individual. The delegate also considered that it could not be said to be a failure of state protection where a government has not been given an opportunity to respond to a request for protection. The delegate considered the country information and accepted that there were inadequacies in policing practices in Malaysia. The evidence before the delegate, however, did not suggest that the Malaysian government would fail to provide the applicant with protection against any threats she faced from illegal money lenders. She had not presented any information that would suggest that the authorities would fail to protect her. The country information did not indicate the applicant would not be given state protection if she returned to Malaysia. The delegate found that the applicant could obtain from an authority of Malaysia protection such that there would not be a real risk that the applicant would suffer significant harm pursuant to s 36(2B)(b). As a consequence, the delegate found absent a real risk that the applicant will suffer significant harm, she was not a person in respect of whom Australia has protection obligations pursuant to s 36(2)(aa) of the Act (CB 62-66).
THE TRIBUNAL’S DECISION
The Tribunal’s decision record first set out the relevant criteria for a protection visa (CB 85-86, [3]-[7]). The decision then records that the Tribunal, in accordance with Ministerial Direction No. 56, had taken into account to the extent relevant to the decision under consideration policy guidelines prepared by the Department of Immigration - ‘PAM3 Refugee and humanitarian - Complementary Protection Guidelines’ and ‘PAM3 Refugee and humanitarian - Refugee Law Guidelines’ - and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes (CB 86, [8]).
The Tribunal noted the information provided by the applicant in her protection application. It was noted, however, that other questions on the application form were left blank including “what do you think will happen to you if you return to that country?”, “did you seek help within the country after the harm”, “did you move or try to move to another part of that country to seek safety”, “do you think that you will be harmed or mistreated if you return to that country”, “do you think the authorities of that country can and will protect you if you go back?”, and “do you think that you will be would be able to relocate within that country?” (CB 86, [10]-[11]).
The Tribunal’s decision outlines at [12]-[66] the questions asked of the applicant and the evidence given during the course of the Tribunal hearing in considerable detail. In summary, the applicant said she took out a loan and could not afford to repay it. She borrowed money for her family who had financial problems. She explained her younger sister wanted to continue her studies but at that time only herself and her mother were working. Her father had just retired.
The applicant said she borrowed 10,000 ringgit from a loan shark. When asked the name of the loan shark, the applicant provided a name which she stated was from what she could remember. She told the Tribunal he was recommended to her by a friend who was a work colleague. She said she was desperate for money and had told her friend of her situation. The Tribunal asked the applicant why she was desperate for money. She responded that she wanted to help her sister. She said her father had financial problems at the time and the bank was looking for him. When asked why she was desperate to borrow money to pay for someone else's education she responded, “she is my sister”. The applicant told the Tribunal she is the oldest and is responsible. She told the Tribunal the money was needed for culinary art studies. Later in her evidence she added that she was not really helping her sister with the money - she was in fact helping other members of her family. When asked what the money was spent on, the applicant replied it was for daily expenses as her mother's salary alone was not enough.
The applicant told the Tribunal she had never been in trouble with the police or the law, nor had anyone else in her family. She explained that her father's financial difficulties related to a lot of credit cards with debts that he could not repay. She said her father had been declared bankrupt and has been blacklisted, and that she was helping him. The Tribunal’s decision records that it was put to the applicant that it seemed that she was originally helping her sister but now she was helping her father. She responded that out of the 10,000 ringgit borrowed from the loan shark, the applicant gave some of the money to the father.
The applicant claimed she completed the appeal application form herself and that it was in her own writing. She said a friend in Malaysia also helped her. The Tribunal pointed out to the applicant that none of the claims made during the hearing were included in her written claims to the Department. The applicant was asked why there was such a difference in detail between the two applications. The applicant said that “this is what he said to me”. The Tribunal put to the applicant that she was blaming the person who filled the form for her, yet the form in fact counts as her form which contains her claims. The Tribunal’s decision also records it being pointed out to the applicant that the form had her name and signature in it but that she did not seem to know its contents. She did not respond to this information.
The applicant told the Tribunal she had paid back part of the loan shark debt, but not completely because she had other financial commitments. According to the applicant, 6,000 ringgit is still outstanding. She told the Tribunal the loan shark is still looking for her and her family, and that after she arrived in Australia the applicant's younger siblings told her that a Chinese man was looking for her and had come to the house. This took place a week after she flew to Australia. She was asked whether the loan sharks had previously been to her house. She told the Tribunal this had occurred three times. She said she was not there at the time but at work. The first time they came they splashed paint. The second time they again splashed paint on a car. On the third time they met the applicant's younger sister and asked her about the applicant's whereabouts and said they wanted their money back.
The applicant told the Tribunal she did not report this to the police. She said that she knew what she had done was wrong. When it was put to her that borrowing money from loan sharks is not illegal, the applicant said she did not think that she could repay the money within the stipulated time. The Tribunal suggested that this did not affect the fact that something wrong had been done to her and her family. She was asked why she did not go to the police if she felt threatened. The applicant’s reply was the same as contained in her earlier statement - that she done something wrong and she was afraid.
The Tribunal’s decision records that it was put to the applicant that police are there to protect people against criminals and that the Country information suggests the Royal Malaysia Police is a professional police force with 102,000 officers there to help people suffering from the effects of crime. The applicant was asked why one of these 102,000 police officers could not help her. The applicant replied that from what she had read and what she watched on television, these matters were never settled. She was asked why she did not go to the police rather than go to Australia. The applicant responded that she might be charged because she had borrowed money from someone that she should not have dealt with.
The applicant was asked why she stopped paying the loan shark. She told the Tribunal that her salary and her mother's salary was not enough. She was earning 1,800 ringgit per month, and spending her salary on transport, groceries and repaying her study loan. She was asked why she was paying the loan shark at one point but not at other points. She told the Tribunal her younger brother at one stage had begun to work and had been helping with payments however he then resigned and the applicant was “caught”.
The applicant told the Tribunal she stopped paying the loan shark in November 2016. Prior to then she paid the loan shark in cash. She would visit the loan shark with her friend and give him the money. The applicant told the Tribunal she has evidence of these payments, but the information is on her laptop. She was asked whether there was any evidence of the loan sharks threatening the applicant’s sister. She said that she had it but that was also on her laptop. She told the Tribunal her laptop crashed and had to be reformatted so it will take some time to extract the relevant information.
The Tribunal’s decision records that the applicant then provided further details about the loan shark. She told the Tribunal that he did not come to the doorstep but sent his men instead. She stated she was embarrassed about borrowing from loan sharks. The applicant confirmed that she had only borrowed money for her family. She told the Tribunal her family's attitude at first was disagreement, but they later realised they had no other choice. She told the Tribunal she wished she had another choice but had to borrow the money. She said the family's attitude towards her moving to Australia was that she had come to Australia to help her family settle their problems.
She applicant told the Tribunal she had paid back 4,000 ringgit of the 10,000 total. The applicant was asked what would happen if she went back to Malaysia. She said they may start looking for her again. She said they will threaten her. She was asked what the threats would consist of. She said they were to arrest her family. When asked whether those threats would be carried out, she replied “yes”. She was asked why she would not go to the police this time if that was the case. The applicant told the Tribunal she's afraid to see the police because she knows she has done something wrong.
The applicant told the Tribunal she earns $800 per week packing fruit in a factory in Australia. She says she sends some money home to her family, but that it is still not enough. Some of the money has been paid to the loan shark but it is not the same amount that she was paying back in Malaysia. The Tribunal pointed out to the applicant that she was earning more money in Australia than she had been earning in Malaysia. She told the Tribunal she had only just started working and it will be some time before her finances are stable. She described having problems as some of her previous employers had not paid her wages.
The Tribunal noted that the outstanding amount of 6,000 ringgit is the equivalent of approximately $2,000 AUD. It was pointed out to the applicant that if she was earning $800 a week, it did not sound like it would be long before she would be in a position to pay off the loan. The applicant told the Tribunal this was correct but that she had other commitments. She told the Tribunal she had a study loan for her younger sister and also her father's debts. She confirmed to the Tribunal that there was no other reason why she would suffer harm if she returned to Malaysia.
The Tribunal put to the applicant that the country information from DFAT stated there had been a recent crackdown in Malaysia with more than 10,000 loan shark victim cases solved. She was again asked why the police could not solve her case. The applicant told the Tribunal that what had happened to her friends had happened to her, that some of them were like her, and they received threats and others had worse things said to them. The applicant was asked whether she could borrow money from a bank. She said it was difficult and it takes a long time.
The applicant was asked whether she had read the delegate’s decision, to which she responded that she had not. She was asked whether she had friends in identical situations, to which she responded yes. She described them as friends of friends. She told the Tribunal they had borrowed from different loan sharks from the one she used.
The Tribunal’s decision then set out some principles in respect of the assessment of credibility before recording the following assessment of the evidence and its findings:
71. I have concerns about the claims made by the applicant. She claims to have sought money from a money lender, and on being unable or slow to make repayments, was threatened. However her attempts to identify this money lender were initially sketchy where she struggled to recall the name of the lender or much information about him. Later in the hearing the lender’s second name was recalled along with his age. It is puzzling that details which early on were so obscure to the applicant, later are spoken about with ease and this evidence does not sit with the concept of spontaneously given evidence. Compounding this was a vague and uncertain description of how this lender was chosen through a referral from a friend, and a questionable dismissal of why more legitimate lenders were not approached on the grounds that that was too time-consuming and/or complicated. Little appears to have been done to deal with financial problems in a more conventional way, and if that were not possible, to explain to the Tribunal why mainstream lenders were not an option. The family’s bad credit problems may have been a reason for example, but this was not proffered. The impression left is one of obfuscation.
72. The applicant claimed to have borrowed 10,000 ringgit, and repaid all but 6,000 ringgit. The applicant has been working in Australia since her arrival in 2016. The Tribunal explored this further and ascertained that she was earning some $800 per week and suggested that the remaining debt might be paid off with relative ease because of her higher wages in Australia. The applicant attempted to deflect this by claiming that she had other outgoings and obligations but avoided any timeline of when an income of around $3,300 per month would resolve the debt of the equivalent of $2,000. Her alleged debt to a loan shark in this light did not seem an insurmountable problem to the Tribunal, but the topic was never confronted.
73. The applicant vacillated between saying that she was covering her own study costs, her father’s debts and her sister’s needs and no coherent description was maintained as to what her financial goals and purposes were. The Tribunal was left with an impression of multiple and disparate reasons being proffered as justifications (sic) not paying off a loan from the money lender. Despite an attempt to carefully explore these matters with her at hearing, the Tribunal was unable to obtain further clear information.
74. Much of the information at hearing was new when compared to an extremely minimal set of claims in her written application. When I asked for information and detail about the loan and its circumstances that were not in her written application she was unable to explain the disparity in detail levels. She alternated by saying that the original claims were all hers and that it was done by someone else and she had not read it.
75. Because of this situation I have come to the view that the applicant was not recounting her genuine experiences of taking out a loan from a loan shark in Malaysia but was simply repeating the information she had provided in his (sic) written statement and extemporising further details at the hearings.
76. I also have concern about her claim she and her family were threatened with harm and of paint being thrown on a property and vehicle, in this light. The claims were presented with little information and detail and in a desultory fashion.
77. The applicant says she has evidence of the loan shark payments but the information is on her laptop.
78. The applicant was asked whether there was any evidence of the loan sharks threatening the applicant’s sister. She said that she had it, but it was in her laptop. Her laptop crashed and it had to be reformatted so it will take some time to extract the information. The applicant has not supplied this or any other new information to the Tribunal since the hearing. The applicant has had a many months to supply this information, and has never done so. It is not the role of the Tribunal to make the applicant’s case for her and I find that this alleged information simply does not exist, because of my earlier concerns.
79. The applicant did not engage in a meaningful way on the country information on the Royal Malaysia Police which employs approximately 102,000 officers and operates 837 police stations across Malaysia. The Inspector General of Police is responsible for the RMP and reports to the Home Affairs Minister. Credible local and international sources consider the RMP to be a professional and effective police force. This was all described in the country information quoted by the delegate.
80. The delegate went on to quote about how police action against the Ah Long [loan sharks] includes a police operation in Kuching, conducted from 23 May 2014 to 23 June 2014, which reportedly resulted in 1,051 illegal advertisements and posters for illegal loans being removed in the 135 police raids conducted: In April 2014, the police and local authorities in Penang ‘pulled down 238 banners and streamers promoting illegal moneylending’. The Malaysian Communications and Multimedia Commission also disconnected the telephone lines of contacts printed on the materials. Between March and May 2015 police in Kota Kinabalu seized between 2,700 and 6,700 ‘posters, banners and name cards of illegal money lenders’.
81. This country information is in very similar terms to the latest DFAT Malaysia report of 2018 (19 April 2018).
82. The applicant’s response for not going to police seemed centred on embarrassment and a belief that she will be charged herself for dealing with loan sharks. Notwithstanding my finding that there was no such loan, my outlining of how borrowing from an Ah Long is not an offence would remove her fear of having done something wrong and therefore remove a believed fear of harm from police and possible resolution of her problem if there is police action. The applicant makes no claim of religious or ethnic discrimination by police against her and I find no reason for the police to refuse to assist her. Her embarrassment does not mean she cannot approach police based on her evidence.
83. I have considered her explanations but I do not find them convincing. These doubts cause me to have further concerns with whether the applicant did take out loans from loan sharks as she claims, and that she was threatened by them as claimed and I find that they did not occur, not were there any attacks on property, the family home nor where (sic) there threats. I find that none of these will occur to her if she return (sic) to her home country.
Conclusions on credibility
84. Above I have considered the applicant’s claims and I have found that I have serious concerns with her claims to have taken out loans from loan sharks given she was unable to provide key details. For the reasons above I do not accept these claims and find that the applicant has fabricated them before the Tribunal.
85. I find that the applicant has manufactured her claims in order to remain in Australia, and I find that the applicant is not credible or a witness of truth.
86. On this basis I find that I do not accept that the applicant borrowed money from loan sharks, for (sic) reason, I do not accept that there was any damage or threats, I do not accept that she was unable to make repayments.
Turning to the criteria pursuant to s 36 of the Act, the Tribunal concluded as follows:
Does the applicant have a well-founded fear of persecution if she returns to Malaysia?
87. The applicant said in that she would be harmed by the loan sharks or their agents.
88. Considering the situation in the future, if the applicant were to return to Malaysia, I do not accept, given my findings above, that there is more than a far-fetched or remote chance that she would be harmed for any reason.
89. I have found above that the claims of her borrowing money from loan sharks are not true. I find therefore that there is no real chance that he (sic) will be harmed by the loan sharks, their agents, or anyone connected to them, now or in the reasonably foreseeable future. I have not accepted her claims that she has been harmed or threatened with harm or that any of her family or associates have been.
90. I find that there is no real chance that the applicant will suffer serious harm amounting to persecution if she returns to have (sic) Malaysia now or in the reasonably foreseeable future from anyone for reasons of her membership of a particular social group that may be comprised of women or people with significant debts to money lenders, debtors to loan sharks or another grouping or on any other basis. She is not a refugee.
91. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
Are there substantial grounds to believe that the applicant will suffer significant harm if he (sic) is returned to Malaysia?
92. In MIAC v SQRB the Full Federal Court held that a 'real risk’ test imposes the same test as the ‘real chance’ test applicable to the assessment of ‘well-founded’ fear’ in the Refugee Convention definition.
93. As detailed above, I have not accepted her claims and find that there is no real risk that he (sic) will be harmed by loan sharks, their agents, or anyone connected to them, now or in the reasonably foreseeable future.
94. It follows that I do not accept that there is a real risk the applicant will suffer significant harm from any person or for any of the reasons set out above or for any other reason evident on the claims or material as a necessary and foreseeable consequence of her being removed from Australia to Malaysia.
95. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
96. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
The Tribunal therefore affirmed the decision not to grant the applicant the visa.
APPLICATION FOR JUDICIAL REVIEW
The application sets out the following narrative as grounds of review:
I was called for hearing on 15th February 2018 by the tribunal, and on the 31.10.2018 the tribunal affirms the decision not to grant me a (sic) application for a protection visa.
The delegate had decided to refuse my application on the basis she was not satisfied with reasons mentioned in s 5J(1)(a) of the act and it not fair for me.
I was unaware I should have provided more document to a lawyer which I didn't had (sic) to support my application for an (sic) protection visa claim.
I would not be able to go back to Malaysia because the situation for me there will be at risk that I might suffer from significant harming.
Therefore the decision made by the tribunal was not fair to me and I wold (sic) want my case to be heard again in federal court circuit.
On 4 April 2024, procedural orders were made by a registrar of this Court to ready the matter for a final hearing. Those orders included that the applicant file and serve on or before 19 April 2024 any amended application with proper particulars of the grounds of the application, written submissions and any additional evidence on which she sought to rely. No further materials were filed in accordance with those orders.
On 23 April 2024, the Minister filed an outline of submissions.
HEARING ON 3 SEPTEMBER 2024
The application came before me for hearing 3 September 2024. The applicant was unrepresented. She was assisted at the hearing by an interpreter in the Malay language. The Minister’s solicitors filed an affidavit on 2 September 2024, setting out the documents they had served on the applicant prior to the hearing. I am satisfied the applicant had been provided a copy of the Court Book filed by the Minister in these proceedings on 9 October 2020 and the Minister’s outline of submissions on a number of occasions. Both documents were sent to the applicant again by email on 2 September 2024.
The materials before the Court in respect of this application are the applicant’s application for review dated 3 December 2018, a Court Book filed on 9 October 2020 (marked Exhibit R1) and the Minister’s written outline of submissions dated 23 April 2024. The applicant also filed an affidavit in support of her application. In addition to attaching the Tribunal’s decision, the applicant also stated the following in her affidavit:
1. I did not have a lawyer and advise that I could apply to federal court.
2. The decision made by the tribunal was unfair to me and I want my case to be heard again.
Noting the applicant was unrepresented, I explained the Court’s role was limited to considering whether the Tribunal had committed a serious legal (or jurisdictional) error when making its decision. I also explained I was not able to look at the facts, make a different decision and give her a visa.
During the course of hearing the application, I made orders amending the name of the first respondent in order that it conform with the relevant Minister’s current title. In addition, I made orders pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) to amend the application so as to seek a writ of mandamus.
CONSIDERATION
The Court’s task in this matter is to review the lawfulness or legality of the Tribunal’s decision. The Court does not consider the merits of the decision and it is not able to remake the decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [17]. The merits of the applicant’s claims are for the repository of the relevant power alone (in this case the delegate and the Tribunal): Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
Relief can only be granted to the applicant if she establishes the Tribunal’s decision is affected by jurisdictional error. The High Court recently explained jurisdictional error in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 at [2] as a “breach of an express or implied condition of a statutory conferral of decision-making authority” such that “it is ‘in law… no decision at all’ and is in that sense ‘void’”. The High Court noted jurisdictional error can take many different forms and that the categories are not closed. Examples of breaches by a statutory decision-maker of a condition in making a decision were identified by the High Court at [3] as including:
(a)misunderstanding the applicable law;
(b)asking the wrong question;
(c)exceeding the bounds of reasonableness;
(d)identifying a wrong issue;
(e)ignoring relevant material;
(f)relying on irrelevant material;
(g)in come cases, making an erroneous finding or reaching a mistaken conclusion;
(h)failing to observe some applicable requirement of procedural fairness.
Applicant’s submissions
The applicant was asked to explain what the Tribunal had done wrong when hearing and deciding her application for review. As to the complaint in her grounds that the decision was not fair to her, I asked her to explain whether she meant the process or the decision itself. The applicant told the Court the Tribunal did not hear her problems. She referred to the Tribunal putting to her that her matters could be attended to by Malaysian police if she returned to Malaysia and lodged a report. She told the Court that she was still fearful “they [money lenders] will come looking for her” and she did not accept the Tribunal’s suggestion for her safety. She told the Court she had heard from a lot of sources with similar cases where they had made reports and their matters had not been attended to.
The applicant stated that she was unable to provide evidence at the time of her Tribunal hearing as the evidence was no longer available. She told the Tribunal her laptop had crashed and that she tried to reformat it. She told the Court she had tried to get the evidence but that her family were not cooperating.
I asked the applicant to explain how it was unfair of the Tribunal to make the findings it did. She explained that it was because she did not have any evidence. In respect of not repaying the outstanding loan amount, the applicant explained when she first arrived in Australia she intended to pay the amount. She said her family told her to come go back home but she did not want to because of her fear of people. She explained her mother said she could come back and marry a man she had chosen who could help solve her financial problems. She told the Court she did not want to do that. She felt her family were making all the decisions. She acknowledged she had not told the Tribunal of these issues.
The applicant was again asked what she thought the Tribunal had done wrong. The applicant responded that she did not think the Tribunal listened to her very well, particularly when she explained that if she returned to Malaysia she would be under threat. She stated that she thought her lack of evidence led the Tribunal to not believe her, but that these events did occur. She claimed to have not had enough time to prepare for the hearing. She told the court she had attempted to ask her family for information. She stated she no longer felt the debt was her responsibility, she was not going to repay it, and it was now up to her family.
In reply to the Minister’s submissions, the applicant told the Court that the Tribunal could have asked her again for information and given her more time to get the evidence. She told the Court her family did not want to help her because they knew she was in Australia as a member of the LGBTQ community. She repeated they had tried to force her to come home to marry. She told the Court she cannot marry a person she does not want to marry, and that her family no longer accepts her because she is a member of the LGBTQ community. She does not wish to return to Malaysia because she now has a partner in Australia. She told the Court that she really did not want to go home. She said her mother will want her to get married and may even force her to get married, that will cause issues and she may lose her mind. She said her mother will not accept her because same sex relationships are sinful under Islam. She said she did not think she would be able to manage things if she returned. She said there would be pressure, there would be nothing there for her and she would be excommunicated from her family. The applicant agreed that none of this information was before the Tribunal.
The Minister’s submissions
The Minister submitted that the grounds set out in the application are more of a narrative than proper grounds of review. To the extent the narrative contends the Tribunal’s decision was unfair, the Minister submitted that the ground was not made out. The Tribunal’s decision reflects that it clearly outlined and considered the available evidence and the applicant's claims. It arrived at a decision which was reasonably open to it and complied with its procedural fairness obligations under the Act. The applicant was invited to a hearing which she attended. The Tribunal raised issues with the applicant during the course of that hearing and gave her an opportunity to comment on them before making its decision.
In respect of the applicant’s contention that she was unaware she should have provided more documents in support of her application, the Minister pointed out the hearing invitation made clear the applicant could provide further information prior to the hearing. The Tribunal referred in its decision to the applicant’s claim to have information on her laptop. Given that the decision was made over 8 months after the hearing, it was appropriate for the Tribunal to observe that the applicant had further and significant time to provide any evidence to support her claims. The Minister also submitted the Tribunal was correct to state that it was not its role to make the applicant’s case for her: Kioa v West (1985) 159 CLR 550; [1985] HCA 81, at 587 per Mason J.
In respect of the applicant’s further claims regarding her sexuality and the reaction of her family, the Minister submitted these matters were not before the Tribunal. As the Tribunal was not apprised of those matters, no error was involved in failing to consider them. They were not relevant to its consideration.
In short, the Minister submitted that the Tribunal considered all of the applicant’s claims and the material before it. The Tribunal correctly applied the law, however, due to credibility issues, it did not accept the applicant's claims. That finding was open on the material before the Tribunal. There was nothing put to the Court to indicate that the decision was legally unreasonable or that the applicant was denied procedural fairness. Ultimately, the applicant merely disagreed with the Tribunal’s findings and is seeking impermissible merits review.
Discussion
I have carefully considered what the applicant has said in support of her application in the context of the Tribunal’s decision. The applicant’s visa application contained little detail. The Tribunal appears to have spent much of the hearing time teasing out the detail of the applicant’s claim. Ultimately, her claim for protection was not accepted at a basal factual level. That conclusion flowed from adverse credibility findings.
In the ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174, the Full Court of the Federal Court stated at [83]:
Many of the relevant legal principles which guide the review or a judicial review of findings concerning credibility were recently discussed by the Full Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [36]-[44] per McKerracher, Griffiths and Rangiah JJ. They may be summarised as follows:
(a) McHugh J’s oft quoted comments in Ex parte Durairajasingham … to the effect that a finding on credibility is the function of the primary decision-maker (or Tribunal) par excellence, does not mean that such findings are not susceptible to review for jurisdictional error on several potential grounds;
(b) the issue whether or not a credibility finding is tainted by jurisdictional error is “a case specific inquiry” and it is not one which should be analysed by reference to fixed categories or formulas (SZRKT at [77] per Robertson J);
(c) in each case, what the decision-maker has decided must be analysed in detail in order to determine whether or not a jurisdictional error has occurred (SZRKT at [77] per Robertson J); and
(d) without derogating from what is said above regarding the danger of relying too heavily on “fixed categories or formulas” (which includes the danger of blindly repeating McHugh J’s comments in Ex parte Durairajasingham), adverse credibility findings might involve jurisdictional error on recognised grounds such as:
(i) failure to afford procedural fairness;
(ii) reaching a finding without a logical or probative basis;
(iii) unreasonableness; and/or
(iv) other grounds as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; 233 FCR 451 at [20]-[21] and in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31], as referred to approvingly by the Full Court in CQG15 at [40]-[42].
In SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589, Allsop CJ explained at [40]:
It can be accepted that credit findings have a particular andimportant place in decision-making, whether of courts or tribunals: see theremarks of McHugh J in Re Minister; Ex parte Durairajasingham [2000]HCA 1; 168 ALR 407 at [67]. For this reason, no doubt, a court exercisingthe power of judicial review should be cautious in its approach to decidingwhether the decision-maker, in dealing with the factual material, includingthe oral evidence of the applicant, has failed to exercise its statutory task byan approach which can be criticised as seriously irrational, illogical orlacking material foundation in important aspects. There is no formulainvolved. Careful attention must be paid to the reasons and approval of thedecision-maker: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Allsop CJ, Robertson and Mortimer JJ) notfor the purpose of ascertaining the facts, but for the purpose of decidingwhether the approach of the tribunal was sufficiently lacking in foundation,rationality, or logical coherence in a way that could have affected theoutcome so as to be legally unreasonable. It can be accepted that reasonabledifferences of views as to material are insufficient to found legalunreasonableness. The flaw in the fact-finding or treatment of the evidencemust be sufficiently seriously illogical, irrational or groundless as tocompromise the decision, in that the credit finding can be seen ascompromised. See the Full Court decisions which deal with the review ofcredit findings: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109; ASB17 v Minister for Home Affairs [2019] FCAFC 38; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175. I referto what I said in CWR16 v Minister for Immigration and Border Protection [2018] FCA 859 at [60]- [65].
In my view, the Tribunal did not fall into jurisdictional error when arriving at its credibility findings. The Tribunal’s decision record clearly outlines the matters put to the applicant during the course of the hearing which demonstrates problems with the claim were identified by the Tribunal and the applicant was given an opportunity to address those issues. The findings were clearly open on the evidence. It was open to the Tribunal to have concerns about the evolving nature of the applicant’s evidence particularly in the context of the absence of detail in the initial visa application and the failure to provide corroborative evidence. The basis for rejecting the applicant’s evidence was explained. That explanation could not be said to be unreasonable, irrational or illogical.
As to the issues raised by the applicant relating to being forced to marry and her sexuality, those matters were not raised with the Tribunal and did not otherwise arise on the materials. The Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [61], per Black CJ, French and Selway JJ.
Summary
The application fails to identify any jurisdictional error. In addition, I have also carefully considered the materials before me and am satisfied that the Tribunal did not fall into jurisdictional error when affirming the decision not to grant the applicant the visa.
CONCLUSION
For the above reasons, I dismiss the application.
I will hear the parties as to costs.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 2 October 2024
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