GKF18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1081
•23 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
GKF18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1081
File number(s): MLG 3747 of 2018 Judgment of: JUDGE CUTHBERTSON Date of judgment: 23 October 2024 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – Tribunal affirming delegate’s decision not to grant a visa – protection claim relating to loan sharks – adverse credibility findings – no arguable case of jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 65, 476 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
Gill v Minister for Immigration and Border Protection [2016] FCAFC 142
Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Maharajan v Minister for Immigration and Border Protection [2017] FCAFC 213
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Re Minister; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189
SZHYH v Minister for Immigration and Border Protection (No 3) [2019] FCA 589
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of last submission/s: 17 September 2024 Date of hearing: 17 September 2024 Place: Melbourne First Applicant: In person Second Applicant: In person Counsel for the First Respondent: Ms N. Bosnjak Solicitor for the First Respondent: Mills Oakley Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 3747 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GKF18
First Applicant
GKG18
Second Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CUTHBERTSON
DATE OF ORDER:
23 OCTOBER 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The name of the second respondent be amended to “Administrative Review Tribunal”.
3.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 10 December 2018 is taken to have been amended so as to seek a writ of mandamus.
4.Pursuant to rr 1.07 and 7.02 of the Rules, the Court dispenses with the need for the amended application referred to in Order 2 above to have the amendment physically made, filed or served.
5.The application filed on 10 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 10 December 2018, the applicants filed an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (the Act) of the decision of the Administrative Appeals Tribunal (the Tribunal) made on 30 November 2018 (application). By that decision, the Tribunal affirmed a decision of the delegate of the first respondent (the Minister) to refuse to grant the applicants protection visas (visa) under s 65 of the Act. The applicants’ protection claims relate to debts due to unlicensed money lenders.
The Minister opposes the application. For the reasons that follow, I have found that the applicants have not established that the Tribunal’s decision is affected by jurisdictional error. The application for judicial review is, therefore, dismissed.
BACKGROUND
The applicants are husband and wife. Both are citizens of Malaysia (CB 92, 117). The first applicant (applicant) arrived in Australia on 1 April 2014 as the holder of an Electronic Travel Authority (ETA). The applicant’s ETA expired on 1 July 2014 (CB 177). The second applicant arrived in Australia on 30 September 2015 also as the holder of an ETA. Her ETA expired on 30 December 2015 (CB 178).
Visa applications
On 4 April 2016, the applicant lodged an application for the visa which was dated 12 March 2016 (CB 1-54). The second applicant lodged her application for the visa on 11 April 2016 (CB 148). On 10 June 2016, the applicant was advised by the then-named Department of Immigration and Border Protection that his visa application was invalid (CB 55-58). On 10 October 2016, the Department received further visa applications dated 5 October 2016 (CB 59-142).
Accordingly, two separate sets of visa applications have been lodged by the applicants in respect of their protection claims. In his initial application, the applicant explained his reasons for claiming protection so that he did not have to return to Malaysia as follows (CB 30-32):
Why did you leave that country?
I leave that country because I want to get protection from Australia. My life are not safe, i have debt that ruin my whole life. Me and my friend owe sum money from black market called Along (sic) at that time to setup a business, but then he misuse the money. He took the money and gambling until lost. I have to repay the debt but the interest getting higher everyday. My friend has runaway and left me with the debt until I got warn if I didn't pay the money on time with full amount, they will kill me and my family. I have moved my parents to other part of that country to make them safe and my parents ask me to stay away from Malaysia for the time being until they got money to repay back.
What do you think will happen if you return to that country?
If i return back to that country, my life and my parents life will getting worst. I don't want to go back for the meantime, the black market people did warning me, if i didn't repay the debt on time, i need to work with them in black market group or else they will kill me.
Do you think you will be harmed or mistreated turn to that country?
Yes, i don't want to live in the fear and chaos environment, if in return back to that country.
Do you think the authorities of that country can and will protect you if you go back? Give details about why you think the authorities could not, or would not, protect you
No.
For now i don't think authorities at that country will protect me because everyone in that country, they just ease to stay away from those who in trouble.
Do you think you would be able to relocate within that country? Give details about why you are unable to relocate
No, i need a shelter to protect my self and to start new life so that I can keep my family and repay back the black market money after they cool down.
Did you experience harm in that country?
Yes, i had experienced harm in that country. Those black market people had burned my stall, smashed my car with baseball wood, send me black letter to kill me.
Did you seek help within the country after the harm? Give details (including the name of the person/organisation/authorities you asked for help, and if they helped you, what they did)
Yes, i did tried moved to other part of that country with my family but my parents ask me to stay away from Malaysia because they does not want me to get killed and getting worst.
Did you move, or try to move, to another part of the country to seek safety? Give details (including where you tried to move, why you were unable to move or where you moved to and what happened)
Yes, i don't want to live in the fear and chaos environment, if in return back to that country.
In his later application, the applicant explained his reasons for seeking protection as follows (CB 110-112):
Why did you leave that country?
Me and my wife's life in danger. One day I borrow money from a money lender to start a business. But I couldn't start my business planned. The money lender started to torture me asking for money, but I can't pay back the money. He started to give us a lot of problem. He whacked me very badly and also beat my wife infront me. I went to the police to make a report but the police didn't help us. They just ignored us. Things got worst, when the money lender send some gangsters to kill me and my wife. We were both very scared and ran away from there to save my life.
What do you think will happen to you if you return to that country?
They will torture and kill both of us.
Did you experience harm in that country? Give details (including the type of harm you experienced, the person/people responsible for the harm and why they harmed you)
Yes. We were whacked very badly and their tried to kill us.
Did you seek help within the country after the harm? Give details (including the name of the person/organisation/authorities you asked for help, and if they helped you, what they did)
Yes, we went to the police but they didn't help us.
Did you move, or try to move, to another part of that country to seek safety? Give reasons for why you did not try to move to another part of the country
No, they will find us no matter where I go within the country.
Do you think you will be harmed or mistreated if you return to that country? Give details (including the type of harm or mistreatment you are likely to experience, the person/people who would be responsible for the harm or mistreatment, why they would harm or mistreat you)
Yes we were beaten and tortured, they also want to kill us.
Do you think the authorities of that country can and will protect you if you go back? Give details about why you think the authorities could not, or would not, protect you
No. They will not help people who don't have money like us.
Do you think you would be able to relocate within that country? Give details about why you are unable to relocate
No. No matter where we go within that country also they can find us by using the Mycard system in that country.
The second applicant referred to her husband’s claims in her own application (CB 135-137).
Delegate’s Decision
On 6 January 2017, a delegate of the Minister (the delegate) refused to grant the applicants visas (CB 143-163). The delegate found that the applicants were not persons in respect of whom Australia has protection obligations as set out in ss 36(2)(a) or (aa) of the Act. The delegate also found they were not members of the same family unit as a non-citizen in respect of whom the Minister was 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 (c) of the Act).
In reaching their conclusion regarding the complementary protection criteria, the delegate stated (CB 162):
34. I note that the applicants have outlined their situation in minimal detail and with no supporting evidence. I also note the delay in which it took for the applicants to lodge a protection visa, particularly in reference to Applicant l. Applicant l arrived in Australia on l April 2014 and lodged an application for protection on 10 June 2016, more than two years after his arrival. While Applicant 2 applied some 15 months after her arrival. I consider it reasonable to expect that individual in the applicants' circumstances would seek to engage Australia’s protection obligations as soon as possible. Overall, I consider that such a delay tends to weigh strongly against the sincerity, or at least the depth, of their stated fear of being harmed in their home country.
Application for review to the Tribunal
On 3 February 2017, the applicants applied to the Tribunal for review of the delegate’s decision (CB 164-170). By letter dated 8 February 2017, the Tribunal acknowledged receipt of the applications. The applicants were advised that if they wished to provide material or written arguments for the Tribunal to consider, they should do so as soon as possible (CB 172-173).
On 27 July 2018, the Tribunal wrote to the applicants inviting them to attend a hearing on 22 August 2018 to give evidence and present arguments relating to the issues arising in their case (CB 179-181).
On 22 August 2018, the applicants appeared before the Tribunal with the assistance of a Malay interpreter (CB 189-191). The hearing record records that the hearing commenced at 9:09 AM and concluded at 11:05 AM. It also records that “no documents were submitted during preliminaries”.
On 27 September 2018, the Tribunal wrote to the applicants inviting them to comment on or respond to certain information which it considered would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decisions under review (CB 192-202). The particulars of the information were as follows:
· In his first application for a protection visa (later deemed invalid), lodged on 4 April 2016, [the first applicant] claimed that after he and a friend borrowed some money from the black market money lender called A Long, his friend took the money and gambled and lost it. His friend then ran away and he had to repay the debt, but the interest rose every day. [The first applicant] claimed that "I get warn if I didn't pay the money on time with full amount, they will kill me and my family. I have moved my parents to other part of that country to make them safe." He said that he did experience harm in Malaysia. "Those black market people had burned my stall, smashed my car with baseball wood, send me black letter to kill me." In his second application, lodged on 7 October 2016, [the first applicant] did not mention a friend with whom he borrowed money or any threats to his family. He said he borrowed money to start a business but couldn't start the business as planned. The money lender started to torture him asking for money, but he couldn't pay back the money. The money lender started to give 'us' a lot of problem. "He whacked me very badly and also beat my wife in front of me." He also claimed that things got worse ''when the money lender send some gangsters to kill me and my wife. We were both very scared and ran away from there to save my life."
· In her application for a protection visa lodged in October 2016, [the second applicant] referred to her husband's claim and claimed that she experienced harm in Malaysia because ''we were whacked very badly and they try to kill us.' She also later claims: "we were beaten and tortured, they also want to kill us".
· At hearing, [the first applicant] gave evidence that he met [the second applicant] in Malaysia before he came to Australia in 2014, but they became closer and married whilst in Australia. He gave evidence that the money lenders did not threaten or beat her in front of him at any stage or threaten to kill 'him and his wife' at any stage, as they had not married before he left Malaysia in 2014.
· At hearing, [the second applicant] also gave evidence that she met and married [the first applicant] in Australia but said she did not know him at all before she came to Australia. She gave evidence that she has never been threatened or beaten by the money lenders as claimed in her application for protection. [The second applicant’s] visa history indicates that she arrived in Australia on 30 September 2015.
· All claim forms have the questions "Did you seek help within the country after the harm ? .. Give details (including the name of the person/authorities you asked for help, and if they helped you, what they did)." In his first claim, [the first applicant] responded "Yes, I did tried to move to other part of that country with my family but my parents ask me to stay away from Malaysia because they does not want me to get killed and getting worst." He does not mention reporting the matter to the police. In his second claim, [the first applicant] responded "Yes we went to the police but they didn't help us." [The second applicant’s] application for protection lodged in October 2016 contained the same words as [the first applicant’s] second application.
· At hearing [the first applicant] gave evidence that he went to the police after he was physically assaulted. The police talked to him at the counter, and he made a report and was told that they would investigate. However, they didn't help and didn't care. [The second applicant’s] evidence, as noted above, was that she did not know [the first applicant] at that time, despite the information in her written claim.
· At the Tribunal hearing, [the first applicant] gave evidence that he and a friend borrowed money about one month before he left Malaysia. His evidence is that they repaid it for about two weeks until his friend abandoned him, though he was not sure how much they paid or even how often. He later said that he moved when the money lender started harassing him and was in his new address for about one month before departing for Australia, and was not located by the money lenders in his new address. At that time, he said he was living in [Location A], where he had lived for about two years with the friend referred to in his claims. The timing in the claims/evidence given at each stage about the alleged loan, repayments, lapsing repayment and [the first applicant’s] departure from Malaysia appears internally inconsistent.
· In his first application for protection [the first applicant] claimed that he lived in [Location B] from birth to March 2014). In neither application does he provide any information about residence in [Location A], despite his evidence at hearing that he lived there for more than two years.
· [The first applicant] gave evidence at hearing that he was required to make daily payments on a loan of 20,000 Malaysian Ringit, and that interest alone was 100 ringit per day at least. He could not recall how much he was required to pay or how often. He could not recall ever being sent a 'black letter'. He said he was only assaulted on one occasion. On that occasion, they grabbed him by the throat and threatened that if he didn't pay, they would kill him. This caused him to move his home.
· [The first applicant] gave evidence during the hearing that he did initially try to repay the loan from Australia, but he had no knowledge or job when he arrived. He is unaware how much is outstanding. He later said that he has not actually paid or tried to pay the loan at all since he came to Australia.
· [The first applicant] and [the second applicant] each said at hearing that they believed that the money lenders were active and could track them throughout the country. However, as noted above, [the first applicant] gave evidence that the money lender did not find him in his new home where he lived for about one month before leaving Malaysia and also that they have not located his family in [Location B] or made enquiries of them about his whereabouts since he left the country.
· [The first applicant] arrived in Australia on 1 April 2014. He first applied for protection on 4 April 2016. This significant delay in seeking protection might be considered to suggest that [the first applicant] was not in fear of harm from any person in Malaysia at the time he arrived in Australia.
The Tribunal explained they considered there were significant concerns with the evidence given by both applicants, including inconsistencies within and between the written and oral claims made by them both. The Tribunal also considered the applicant had not explained the reason for his delay in seeking protection. It noted this information was relevant to the review because the apparent inconsistencies within and between evidence could, subject to the applicants’ comments, lead the Tribunal to conclude they had not been truthful in their evidence in relation to these matters. The letter went on to say that the Tribunal may conclude they had not been truthful about the applicant borrowing money from a money lender, failing to make repayments on a loan and receiving threats of harm from the money lender. They were warned this could lead the Tribunal to not accept the evidence in relation to the existence of the loan, the non-repayment of the loan, and the attack on the applicant and his property and the receipt of threats of harm from a money lender. They were also told that it could lead the Tribunal to question their credibility generally, which in turn could cast doubt over other parts of their evidence as well. They were warned this could lead the Tribunal to find they were not persons to whom Australia owed protection obligations under the Refugees Convention and under the complementary protection criterion. If that was the case, it would be the reason or part of the reason for affirming the decision of the delegate under review.
The applicants were invited to give comments on or respond to the information in the letter in writing by 11 October 2018. They were advised they would need to apply for an extension of time if they were unable to comply with that time frame. They were further advised that if the Tribunal did not receive their comments or response within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain their views on the information. In that case, they would also lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments (CB 192-202).
On 1 October 2018, the second applicant responded to the Tribunal’s invitation to comment by email as follows:
I …. wish to state that whatever has been explained during a previous hearing on the hearing of the visa protection case is true and there is no contradiction in the information.
It has been informed to you that when I applied for a written visa beforehand requesting assistance from a friend to fill out the visa form and continue to submit the application without examining the similarity of the reason as it happens, because it is less fluent in reading, speaking and writing in English, because this weakness makes me very difficult to deal with.
I myself do not know what is written as what we are supposed to say and we do not even stay together when the form is written,
I have handed the matter to my friend completely because of the weakness as stated
My delay is to apply for a visa because while in the country where I do not know directly and is not concerned about the existence of a protected visa or how to apply, yet no one told me about this, not because I purposely did not want to apply, as I explained I was too weak in English.
I know of any of these protection visas when I get acquainted with this friend and are notified of a visa protection, otherwise my friend offers help to help me apply for the visa possibly until today I do not have a visa
So humbly and beg for your mercy so that you can consider this application to be fully accepted and trusted without any doubt
This is a statement from me and my husband …
(CB 203-204).
THE TRIBUNAL’S DECISION
On 30 November 2018, the Tribunal affirmed the delegate’s decision not to grant the applicants protection visas (CB 206).
In its statement of decision and reasons (CB 208-217), the Tribunal first set out the criteria for protection visas (CB 208-209, [3]-[7]). The Tribunal observed it remains for the applicants to satisfy the Tribunal that they satisfy all of the required statutory elements (CB 208, [8]). It also observed that the Tribunal was not required to make the applicants’ case for them, nor was it required to uncritically accept the claims made by them. It noted that findings of fact required to be made may involve assessments of credibility. The Tribunal noted it was aware of the need for and importance of being sensitive to the difficulties asylum seekers often face, and that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all of their claims (CB 208-209, [9]-[12]). The Tribunal noted it had regard to departmental policy guidelines to the extent they were relevant as was required by Ministerial Direction No. 56 (CB 209, [13]).
The Tribunal noted both applicants attended the hearing and gave evidence with the assistance of a Malay interpreter. It referred to the 27 September 2018 letter and the response received (CB 209, [15]).
The Tribunal then set out in detail the evidence it received during the course of the review, including that given by the applicants during the Tribunal hearing (CB 209-212, [16]-[29]). In addition to the evidence referred to in the Tribunal’s letter of 27 September 2018, the statement of reasons records the Tribunal member discussed the country information with the applicant. In the course of that discussion, the applicant agreed that he could return to [Location B] but said the living conditions there were poor and he would find it hard to earn an income. He told the Tribunal he had previously gone to Singapore for about five years for that reason. He told the Tribunal his family had not been contacted by the debt collectors but he could not predict what may happen in the future. He also said he had thought about moving to live near his in-laws. He did not offer any reasons why that would not be possible. He told the Tribunal he would prefer to live in Australia (CB 211, [24]).
When giving her evidence, the second applicant, in addition to the matters noted in the 27 September 2018 letter from the Tribunal, stated that her marriage to the applicant did not have the consent or blessing of her family (CB 212, [29]).
The Tribunal then referred to its letter of 27 September 2018, setting out its contents and the applicants’ response (CB 212-215, [30]-[32]).
The Tribunal then reached conclusions and made findings as follows:
33. I conclude that any written claims which allege that the second applicant was threatened and harmed by the money lenders were false. In fact, she did not apparently even know the first applicant until 2015, and met him in Australia. I find that the second applicant has not faced any threats (direct or otherwise) from money lenders owed money by her husband at any time. I do not accept the first applicant’s evidence about him knowing the second applicant in Malaysia earlier than 2015 at all.
34. I find that the applicants have not provided any satisfactory explanation of matters of concern raised within and between the evidence they have given at various stages (and particularly about the evidence on their claims concerning the second applicant being threatened and harmed by the money lender), and that this causes me to doubt the veracity of the whole of their evidence. I do not accept that blaming the transcriber of their claims and their own lack of English skills satisfactorily explains the content of those written claims being so untruthful, given that they refer to events that were (allegedly) within their own direct knowledge and make statements which are untrue. I am prepared to accept that the first applicant may have initially been unaware of the existence of or how to apply a protection visa due to his weak English skills – however I do not accept that this explains why he waited two years to ‘discover’ or learn about and apply for this visa. That delay, in the context of the publicly available information in Australia about protection visas, does suggest that the applicant was not in fear of harm on returning to Malaysia. If he was, I consider it is reasonable to expect him to take steps to investigate his options well before the expiration of two years.
35. I also note that the first applicant was clearly changing his evidence during the hearing to fit with previous claims and demonstrated that he was prepared to lie about the extent and nature of his relationship with the second applicant to strengthen his claims. His evidence about his residence in [Location A], [Location B] and Singapore was also different at different stages of the hearing as well as from his written claims. I am unable to be satisfied about the first applicant’s work and residence history based on any of the evidence before me.
36. The first applicant said at hearing that he borrowed the money about one month before leaving the country, but also that the money lenders caused him harm only two weeks later and then that he was in ‘hiding’ at a new address for one month before leaving the country. His confused and confusing evidence about the timing of the loan and how it was to be repaid, and his lack of ability to clearly outline even the basic terms of that loan (such as interest and repayments) leads me to doubt that there ever was any loan.
37. The inconsistencies in and between the applicants’ oral evidence and their claims was discussed with both applicants at various stages of the hearing. I note also that they have not explained those inconsistencies when given an opportunity to do so by my notice to them. After carefully weighing the evidence before me as a whole given by each applicant, I do not accept that either of the applicants is a truthful witness. I do not accept that the first applicant borrowed money from a money lender, that he or any members of his family was threatened, physically assaulted, tortured or that his property was damaged by a money lender. I do not accept that the first applicant left Malaysia out of fear for his life or of being assaulted and having his property damaged by a money lender. In relation to the second applicant, I do not accept that she was ever threatened or is at risk of any harm from a money lender because of her relationship with the first applicant. I do not accept her evidence that her family disapproves of her marriage (or her implied suggestion that she would be rejected by them if she were to return to Malaysia).
38. For these reasons, I do not accept that either applicant faces a real chance of serious harm for any reason claimed if they return to Malaysia, now or in the reasonably foreseeable future.
39. I find that the applicants do not satisfy the criteria in s.36(2)(a) of the Act.
Complementary Protection
40. In considering whether the applicants meets the complementary protection criterion under s.36(2)(aa), I have considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that either applicant will suffer significant harm.
41. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'wellfounded fear' in the refugee definition.
42. I rely on my findings as outlined above and repeat that I do not accept that the first applicant borrowed money from a money lender, that he or any members of his family was assaulted, tortured, threatened with death, had his property damaged or that he fled Malaysia out of a fear of harm from a money lender. Similarly, I rely on my findings as outlined above in relation to the second applicant and repeat that I do not accept that the second applicant was ever assaulted or threatened with harm by a money lender or that she fears returning to Malaysia because her family disapprove of her marriage.
43. For the same reasons, I do not accept there to be a real risk that either applicant would face significant harm as a necessary and foreseeable consequence of them being returned to Malaysia. I find that there are not substantial (or any) grounds for believing that the either applicant would suffer significant harm (or any harm) if he or she was to return to Malaysia, now or in the reasonably foreseeable future.
APPLICATION FOR JUDICIAL REVIEW
The application sets out six grounds of review as follows:
1. I am applying judicial review at Federal Circuit Court under s 476 of the Migration Act 1925 related to Federal Circuit Court regulations.
2. I am submitting the Decision Record of immigration and also Tribunal Decision.
3. The AAT Member failed to conduct a review as required by s. 5j(1)(a)(b)(c) of the Migration 1958 as she not consider a claim which arose clearly from the material before her that. my and wife fear are genuine is well-founded fear persection (sic) in Malaysia. We don’t have anything left in Malaysia. I will be killed and my wife child will be on road become victims by people.
4. Also I am married in Australia, she is also applicant in my application as well.
5. Also my claims and documents true and genuine all the evidence and question will be proved in court hearing.
6. I beg the juged (sic) and registrar to help me in this matter. I don’t have much money at the moment to hire solicitor. I will hire lawyer on my behalf when my court case allocated for hearing.
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 applicants 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 they sought to rely. No further materials were filed by the applicants in accordance with those orders.
On 24 April 2024, the Minister filed an outline of submissions.
HEARING OF APPLICATION
The application initially came before me for hearing on 9 September 2024. The applicants were unrepresented. An interpreter in the Malay language had been arranged to provide assistance to the applicants during the course of the hearing. The interpreter was to appear remotely, however, after significant difficulties in contacting him, the hearing was adjourned to 17 September 2024.
On 17 September 2024, a Malay interpreter attended the hearing in person. The Minister’s solicitors filed an affidavit on 5 September 2024 setting out the documents they had served on the applicants prior to the hearing. I am satisfied the applicants have been provided a copy of the Court Book filed by the Minister in these proceedings by email on 30 September 2020, 4 and 5 September 2024 and by post on 9 May 2022. I am also satisfied the applicants were sent copies of the Minister’s outline of submissions on a number of occasions prior to the hearing: see affidavit of Alexandra Lean affirmed on 5 September 2024.
The materials before the Court in respect of this application are the applicants’ application for review dated 10 December 2018, the Court Book filed on 29 September 2020 (marked Exhibit R1), the Minister’s written outline of submissions dated 24 April 2024. The application was filed with an affidavit of the applicant which annexed the Tribunal’s reasons for decision. The reasons for decision are contained in the Court Book.
As the applicants were 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 the applicants visas.
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 applicants’ 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 applicants if they establish 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 some cases, making an erroneous finding or reaching a mistaken conclusion;
(h)failing to observe some applicable requirement of procedural fairness.
Applicants’ submissions
The applicant was asked to explain what he thought the Tribunal did wrong in reaching its decision. The applicant understood the Tribunal had identified as an issue that the two visa applications contained inconsistencies. He told the Court the first application was one prepared by a fellow Malaysian who has since returned home. He said he was merely asked to sign it and did not know its contents. As to the second application, he said he was “merely following instructions”. The applicant said they paid a person to prepare the application for them. The person was a Malaysian of Indian descent who the applicant used to work for and whose name the applicant has now forgotten. The applicant says there was incorrect information in the application. He first told the Court there were parts put in the application without informing the applicants. The incorrect parts identified were that the applicants had met and married in Malaysia. When asked if there was anything else incorrect, the applicant told the Court he did not remember the exact details. He said the problem with the loan sharks was correct, but that his wife had nothing to do with it and did not face loan shark problems in Malaysia. The applicant then told the Court they were aware the information in the application was incorrect and that they now wanted to correct it.
The applicant said they were not making any accusations against the Tribunal. The Court asked if the applicants disagreed with the Tribunal’s conclusions. The applicant stated they did not disagree, but wanted to explain the discrepancies to the Tribunal which were the result of information added to the applications to strengthen the applicants’ claim. The applicant said this additional information led to the applicants being confused during the hearing as they could not explain all the inconsistencies. The applicant then said they initially went along with the reasons for seeking the visa set out in the application form. The applicant said they decided to go along with it during the hearing. He also said they knew there was incorrect information in the application at the time it was submitted but they were told they added strength to the claim.
Minister’s submissions
The Minister submitted grounds one, two, four and six of the application state background information rather than allege jurisdictional error and should be dismissed.
As to ground two, the Minister submits that insofar as it is alleged the Tribunal failed to consider the evidence about the applicants’ fear of persecution, the contention ought to fail. The Minister accepts the Tribunal was required to consider and engage with the claims and evidence put forward by an applicant which could have some bearing on its decision, which involves a real consideration of the evidence and the weight and significance to be given to it: Gunatillake v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 387 at [74] per Murphy J. The Minister submits the Tribunal did this. It was submitted the reasons for decision demonstrate the Tribunal was aware of the relevant law. It also set out all of the applicants’ evidence and material, clearly engaging with it before finding it was unnecessary to proceed to consider whether either applicant had a well-founded fear of persecution as it did not accept either of the applicants were truthful witnesses, rejecting their claims as a matter of fact at an anterior stage.
The Minister submits the contention that the applicants’ claims and documents were true and all evidence will be proved in Court as set out in ground five is an invitation to the Court to engage in impermissible merits review: Liang at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ. The Minister otherwise submits the Tribunal correctly considered and applied the law. It considered the evidence and materials before it. It complied with its procedural fairness obligations. It gave the applicants opportunities to address the inconsistencies in the evidence. Ultimately, its decision was open on the material before it.
Discussion
The applicants’ submissions were not directly related to the grounds of the application. Those submissions were essentially directed at seeking a second chance to only put truthful material before the decision maker and withdraw any false claims.
To the extent the grounds set out in the application allege the Tribunal “failed to conduct a review” or failed to consider s 5J of the Act, they are not made out. The Tribunal was clearly aware of and referenced the relevant statutory criteria which were required to be met in its reasons for decision (CB 208, [3]-[7]; 209, [13]). Those reasons set out in detail the evidence and materials before the Tribunal and the opportunities given to the applicants to address those during the hearing and by way of response to its invitation to provide comment (CB 209-215, [16]-[32]). The applicants’ explanation for those inconsistencies (to the extent they were conceded) was considered but not accepted by the Tribunal (CB 21-216, [34]-[37]). The reasons for rejecting that explanation were explained by the Tribunal. It did not consider the applicants’ claims against the refugee or complementary protection criteria any further as it did not accept at a factual level that the basis for them was made out. That conclusion flowed from adverse credibility findings.
The merits of the applicants’ applications for visas were for the delegate and the Tribunal: see Liang at [31]. Making findings on credibility is the function of the primary decision maker or the Tribunal: Re Minister; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407 at [67], per McHugh J. Nevertheless, Courts have recognised that adverse credibility finding might involve jurisdictional error: ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [83]. 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’s credibility findings were in no way irrational, unreasonable, illogical or groundless. The Tribunal’s reasons demonstrate it engaged in an active consideration and assessment of the evidence before it. It afforded the applicants procedural fairness. No jurisdictional error is evident in the Tribunal’s approach to the factual material before it.
To the extent the grounds of review seek to “prove” the claims are “true and genuine”, as noted above, assessment of the merits of the claim, including making findings of fact, are not the province of this Court. As was explained to the applicants, judicial review of a decision of the Tribunal does not present an occasion for a redetermination of the application including its underlying factual basis.
The applicants’ explanation that matters were included in the visa application (or applications) by others that were not true requires further comment. Clearly the inconsistencies between the contents of the applications and between the applications and the evidence given to the Tribunal formed part of the reason for the Tribunal’s rejection of the applicants’ claimed basis for seeking protection.
The second applicant raised this issue with the Tribunal in their response to the invitation to comment in the following terms:
It has been informed to you that when I applied for a written visa beforehand requesting assistance from a friend to fill out the visa form and continue to submit the application without examining the similarity of the reason as it happens, because it is less fluent in reading, speaking and writing in English, because this weakness makes me very difficult to deal with.
I myself do not know what is written as what we are supposed to say and we do not even stay together when the form is written,
I have handed the matter to my friend completely because of the weakness as stated.
Although the response from the second applicant concludes by saying “[t]his is a statement from me and my husband”, it is not clear whether this explanation is one that only relates to her application or to both. This explanation also does not indicate whether the information in one or other of the applications was incorrect.
The Tribunal noted the following in respect of this explanation:
·At [22], the applicant “blamed the errors in the claim on the person who assisted them with their applications for protection”;
·At [34]: “I do not accept that blaming the transcriber of their claims and their own lack of English skills satisfactorily explains the content of those written claims being so untruthful, given that they refer to events that were (allegedly) within their own direct knowledge and make statements which are untrue”;
·At [37]: “I note also that they have not explained those inconsistencies when given an opportunity to do so by my notice to them”.
The explanation provided to this Court has a different flavour to that provided to the Tribunal. The applicant told the Court the information was included by the person assisting with the applications with the express purpose of strengthening the claim. This explanation is not the subject of any formal evidence. Given the applicants are unrepresented, I have considered whether to provide them an opportunity to put on evidence about this issue with a view to identifying if there was conduct such that the decision of the Tribunal was induced or affected by fraud.
I have decided not to do so. The explanation provided to the Court was somewhat inconsistent, but ultimately I understood the applicant to suggest he was aware when the visa applications were submitted there was incorrect information in them which had been included for the purpose of strengthening their claims for protection. Further, I was told the applicant “decided to go along with” that incorrect information when submitting the applications and when appearing in the Tribunal because they wanted a bridging visa. Such explanations suggest at least indifference to the provision of incorrect information. On that basis, there is no occasion to consider whether the Tribunal’s decision has been vitiated by fraud in the sense explained in decisions such as SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189, Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 or Maharajan v Minister for Immigration and Border Protection [2017] FCAFC 213.
The application fails to identify any jurisdictional error on the part of the Tribunal when affirming the decision not to grant the applicants visas.
CONCLUSION
For the above reasons, I dismiss the application.
I will hear the parties as to costs.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cuthbertson. Associate:
Dated: 23 October 2024
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