MZAMJ v Minister for Immigration

[2015] FCCA 2174

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAMJ v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2174

Catchwords:
MIGRATION – Judicial review of Refugee Review Tribunal decision – application for a Protection (Class XA) visa – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth) r.44.12(1)(a)

MigrationAct 1958 (Cth) ss.36(2)(a), 36(2)(aa), 424, 424A 425, 425A, 441(1A)

Migration Regulations 1994 (Cth) reg.4.35D

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) HCA 17

Applicant: MZAMJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 2116 of 2014

Judgment of: Judge Hartnett

Hearing date: 12 June 2015

Delivered at: Melbourne

Delivered on: 12 June 2015

REPRESENTATION

The Applicant:   In person

Solicitors for the First Respondent: DLA Piper Australia

Counsel for the First Respondent: Ms Maddocks

ORDERS

1. Pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) the Application filed on 21 October 2014 is dismissed.

2. The Applicant to pay the costs of the First Respondent fixed in the sum of $3,416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2116 of 2014

MZAMJ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. This matter comes before the Court on an Application filed on 21 October 2014 by the Applicant, wherein the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 18 September 2013.  The Applicant seeks in that Application an order that the decision of the Tribunal be quashed and a writ of mandamus issue directed to the Tribunal requiring it to determine the Applicant’s application according to law.

2. The grounds of the Application are unparticularised and, in essence, meaningless.  They are:-

   “1. The decision of the Tribunal:

   a) was effected by the procedural unfairness.

   b) failed to take into account relevant considerations.

   c) Gave rise to an apprehension of bias in the mind of a reasonable observer.”

3. By Response filed on 7 November 2014, the First Respondent opposed the making of the orders sought in the Application and sought costs upon any dismissal of the Application.  The First Respondent noted that the Application made unparticularised assertions of error by the Tribunal, including procedural unfairness and apprehended bias and stated that the grounds failed to raise any arguable case for the relief sought.

4. On 4 February 2015, Registrar Allaway made orders, by consent, which relevantly included that the Applicant file and serve by 11 March 2015 any amended application, including any additional grounds of review with complete particulars of each ground.  Further, the Applicant was to file and serve written submissions.  The Applicant complied with neither of those orders.

5. The Decision Record of the Tribunal is dated 17 September 2014 (‘the Decision Record’).  In that decision, the Tribunal affirmed a decision by the Delegate of the First Respondent (‘the Delegate’) not to grant the Applicant a Protection (Class XA) visa (‘the visa’).

History

1. The Applicant is a citizen of Malaysia born on 15 July 1970.  He arrived in Australia on 1 March 2010.  He applied for the visa on 22 April 2014.  His claims as set out in his Application form and as summarised in the Outline of Submissions of the First Respondent, were that he feared harm in Malaysia by loan sharks, creditors, debt collectors and gangsters as a result of money he borrowed, and his inability to repay the loan shark from whom he borrowed.  The Applicant claimed that individuals had threatened to harm his family and stalked him in the past, and that the authorities in Malaysia could not protect lending victims such as himself.

2. The Applicant was invited to a hearing of the Tribunal and gave oral evidence and presented arguments on the issues arising in relation to the review.  That hearing occurred on 10 September 2014.  Upon that hearing, the Applicant additionally claimed to fear harm from government officials and Mr Wong, a contractor with whom he had a business dispute.  The Applicant also claimed to fear harm for reason of his Chinese ethnicity.

3. The Tribunal accepted various aspects of the Applicant’s claims, including that the Applicant worked in a construction industry in Malaysia, that he had a business dispute with Mr Wong in the course of building a library and canteen for a school in Kuala Lumpur, and that he had taken out various loans to repay a fine he received after legal proceedings were commenced against him for the construction of buildings with unsuitable materials.

4. On the basis of inconsistencies in the Applicant’s evidence, the Tribunal did not accept that the Applicant had a genuine fear of harm in Malaysia from loan sharks and their associates, government officials or Mr Wong.

5. Further, the Tribunal, because of the Tribunal’s view that the inconsistencies in the Applicant’s evidence were both multiple and serious, did not accept that the Applicant borrowed money from loan sharks, or that he was ever harassed or harmed by creditors, gangs or debt collectors related to those loan sharks. 

6. Rather, the Tribunal found that the Applicant borrowed money from family members and the bank to pay the fine, and that the bank loan has been repaid in full and the loans from the family have been repaid in part.  The Tribunal did not accept that loan sharks or creditors, gangs or debt collectors associated with them therefore would seek to harm the Applicant if he returns to Malaysia, now or in the reasonably foreseeable future.

7. The Tribunal concluded that the Applicant did not satisfy the criteria for the grant of the visa in ss.36(2)(a) or 36(2)(aa) of the MigrationAct 1958 (Cth) (‘the Act’).

Consideration

Procedural fairness

1. There is nothing in the evidence before the Court which suggests that the Tribunal did anything other than afford the Applicant procedural fairness. Upon the hearing of this matter before the Court, the Applicant was invited to make submissions that might particularise this claim, but he had nothing to say in response to such invitation. It is clear that the Applicant was invited to, and did, attend the hearing before the Tribunal at which the dispositive issues on review were discussed with the Applicant. The Tribunal complied with s.424 of the Act.

2. The hearing invitation itself complied with the statutory requirements as to content and dispatch as set out in ss.425, 425A and s.441(1A) of the Act, and reg.4.35D of the Migration Regulations 1994 (Cth). There was no information before the Tribunal which enlivened its obligations under s.424A of the Act, and this ground must fail.

Failure to take into account relevant considerations

1. The Applicant failed to particularise this ground, and on the hearing of his Application before the Court, was unable to make any submissions in respect thereto.  On a fair reading of the Tribunal’s decision, it dealt with each and every of the integers of the Applicant’s claims and made findings of fact open to it on the evidence before it.  There is no merit in this ground.

Apprehended bias

1. No particularisation of this ground was forthcoming from the Application and the Court notes this is a serious allegation.  There is no evidence before the Court to found such an allegation which must be firmly established, distinctly made and clearly proved.[1] 

   [1] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) HCA 17.

2. The fact that the Tribunal made a finding adverse to the Applicant or one which the Applicant did not desire, does not reveal bias or prejudgment.  There is nothing on the face of the Decision Record, there being no transcript before the Court, to suggest that the Tribunal did not conduct the review with an open mind.  This ground also cannot be made out and it, likewise, in the absence of particulars, and a satisfaction of them, must fail.

3. The Application does not raise an arguable case for the relief sought and will be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’). Costs shall follow the event in the sum as provided for in the Rules of $3,416.

I certify that the preceding eighteen (18)paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 14 August 2015