Federal Court of Australia

FQK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1389

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    The appellant, FQK17, appeals from the orders and judgment of a judge of the Federal Circuit and Family Court of Australia (Division 2) (the primary judge), made and pronounced on 25 August 2022. The primary judge dismissed an application made in accordance with s 476(1) of the Migration Act 1958 (Cth) (the Act) for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 5 December 2017. In its decision, the Tribunal affirmed an earlier decision of a delegate of the Minister for Immigration and Border Protection (as the first respondent to this appeal, the Minister, then was) not to grant the appellant a Protection (Subclass 866) visa.

Background

2    The appellant is a national of Malaysia. She arrived in Australia on 21 March 2016 as the holder of an Electronic Travel Authority (Subclass 601) visa.

3    On 15 June 2016, she applied for a Protection (Subclass 866) visa. The claims advanced by the appellant in support of her application can be summarised as follows:

(a)    She had recently filed for bankruptcy in Malaysia due to the existence of an historical debt with Public Bank Berhad, and the bankruptcy was causing her many problems, including a considerable deal of stress.

(b)    Her family members were “torturing [her] for money”.

(c)    She feared harm from her brother because the “bankruptcy file” was also under his name.

4    On 21 July 2016, the delegate refused to grant the visa.

5    The delegate concluded that the appellant’s fear of persecution was not for any of the reasons stated in s 5J(1)(a) of the Act, as drawn from Art 1A(2) of the Convention relating to the Status of Refugees, signed 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954). Accordingly, he found that the appellant was not a refugee as defined in s 5H, and the criterion in s 36(2)(a) was not satisfied.

6    The delegate also concluded that the appellant did not have any fear of “significant harm”, as defined in s 36(2A) of the Act. He found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being returned to Malaysia, there was a real risk that she would suffer significant harm. Accordingly, the criterion in s 36(2)(aa) was not satisfied.

7    It followed that the appellant was found not to be a person in respect of whom Australia had protection obligations under s 36(2)(a) or (aa) of the Act.

The Tribunal’s decision

8    On 3 August 2016, the appellant lodged with the Tribunal an application for review of the delegate’s decision.

9    A hearing of the application was held on 22 November 2017. The appellant attended the hearing in person, without representation. She was assisted by a Tamil interpreter.

10    On 7 December 2017, the Tribunal notified the appellant that it had decided to affirm the decision under review. It gave reasons dated 5 December 2017, which may be summarised as follows:

(a)    The Tribunal summarised the protection claims raised by the appellant in her visa application, along with further claims raised at the hearing in relation to her second husband. She claimed that the reason that she had come to Australia was that her second husband was abusive and she did not feel safe with him. She told the Tribunal that she had divorced her second husband since coming to Australia, and feared harm from him upon her return to Malaysia because he was “angry and ashamed” that they had divorced. The appellant also elaborated to some extent on her claim that she feared harm from her brother, explaining that he was upset that her financial circumstances had affected him — specifically, by resulting in the bank commencing proceedings against them both.

(b)    The Tribunal accepted a great deal of the appellant’s oral evidence in relation to her fear of harm from her ex-husband, notwithstanding the fact that it was sometimes “very vague”. It accepted that the appellant was verbally mistreated by her ex-husband, and that they quarrelled over his treatment of her son. It accepted her evidence that, on two occasions, her ex-husband had gone to hit her. However, it noted that he did not actually do so. Having regard to this conduct, it accepted that the appellant’s ex-husband had threatened her in some way in the past and that the appellant did not feel safe with him. However, it did not accept that his conduct amounted to “torture”, as defined in s 5(1) of the Act.

(c)    The Tribunal further found that the appellant’s evidence about her claim that her ex-husband would harm her upon her return to Malaysia was “vague and limited”. It did not accept that he had threatened her at any time after her arrival in Australia. It took account of her claims in relation to her ex-husband’s attitude towards her following their divorce, but it did not accept that the evidence before it supported the conclusion that her ex-husband intended to harm her in any way in the future. On this point, the Tribunal also took into account the fact that 18 months had elapsed since the appellant’s departure from Malaysia, and her last contact with her ex-husband was six months ago, at which time he had indicated his wish to have no further contact with her. In these circumstances, given the passage of time, the Tribunal considered that the risk of harm to the appellant from her ex-husband was remote. It did not accept that she had a well-founded fear of persecution or that she faced a real risk of significant harm on this basis.

(d)    On the same point, the Tribunal noted the appellant’s statement that her ex-husband knew the location of her mother’s residence, where she would live upon her return to Malaysia, and her claim that he might find her there. However, it assessed that her ex-husband’s past conduct did not indicate that he intended to harm her in any way. It also noted that, according to the appellant, her family home was a long distance from her ex-husband’s home.

(e)    The Tribunal proceeded to express some scepticism about the appellant’s claims in relation to the risk of harm from her ex-husband. It noted that the point had not been raised in her written reasons for claiming protection, despite the fact that she had evidently understood the questions in Part C of the visa application and been able to give clear responses. It also pointed out that, noting that the appellant did not appear to have experienced any difficulty in advancing claims about her financial circumstances, it expected that she would have mentioned her claim about her ex-husband — given that, as she said, she had left Malaysia because she feared harm or mistreatment at his hands, and this was her only, or main, concern about returning to Malaysia. The Tribunal did not accept the appellant’s explanation for her failure to make the claims concerning her ex-husband in her written visa application. It concluded that her claimed fear of harm from her ex-husband had been concocted.

(f)    Ultimately, on the basis of the evidence before it, the Tribunal found that there was not a real chance that the appellant faced serious harm from her ex-husband. It found that the appellant did not have a well-founded fear of persecution for this reason. It also did not accept that there were substantial grounds for believing that there was a real risk that she would suffer significant harm if removed from Australia to Malaysia.

(g)    In relation to the appellant’s original claims regarding her financial circumstances, the Tribunal accepted that she and her brother had in 2002 taken out a mortgage or housing loan in a joint account with Public Bank Berhad. It accepted that the appellant had been unable to pay the loan and that the bank had sold the property at a lower price than she had paid, after which time she and her brother still owed a substantial amount as joint mortgagees. Importantly, the Tribunal did not accept the appellant’s written claim that the bank had already decided to pursue her in bankruptcy, which had been contradicted by her oral evidence. After considering her work history in some detail, it acknowledged that she may experience some financial hardship if she returned to Malaysia, but nevertheless concluded that she would have the means to continue making payments to the bank in accordance with a prior agreement that she had reached with it. It did not accept that she would face bankruptcy proceedings.

(h)    The Tribunal did not accept that the appellant would experience severe economic hardship that would threaten her capacity to subsist. It also did not accept that she would be denied the capacity to earn a livelihood, that she would be denied access to basic services, or that she would be subject to any other form of serious harm listed in s 5J(5) of the Act. Accordingly, it found that the appellant did not have a well-founded fear of persecution on account of the matters raised in her claims. Based on the same findings and reasons, it also did not accept that there were substantial grounds for believing that there was a real risk that the appellant would suffer significant harm if removed from Australia to Malaysia.

(i)    In relation to the same claims, the Tribunal also considered whether the appellant had a well-founded fear of persecution or faced a real risk of significant harm in the event that she did not make payments as previously negotiated with the bank. Having regard to certain country information and evidence given by the appellant, it found that, even if she was declared bankrupt in Malaysia, she would still have the capacity to subsist. It was not satisfied that the potential for bankruptcy proceedings to be commenced against her gave rise to a well-founded fear of persecution or meant that she faced a real risk of significant harm.

(j)    The Tribunal regarded the appellant’s claims about her fear of harm from her brother as “purely speculative”. It did not accept that she faced a real prospect of serious harm from him, or that any well-founded fear of persecution arose from these claims.

(k)    The Tribunal found that the appellant’s claim that her family was “torturing her for money” did not arise for any of the reasons set out in s 5J(1)(a) of the Act. Her fear of persecution was therefore not well-founded. It did not accept that the appellant’s family had mistreated or harmed her for any reason. Similarly, it did not accept that her family had tortured her for money or for any other reason. Accordingly, there were no substantial grounds for believing that there was a real risk that she would suffer significant harm upon her return to Malaysia.

(l)    In relation to the appellant’s personal circumstances, the Tribunal acknowledged that she had experienced personal loss in respect of her marriages. However, it found that these circumstances had not arisen for one or more of the reasons set out in s 5J(1)(a). It found that the appellant’s fear of persecution was not well-founded. The personal loss that she had experienced was also found not to constitute significant harm, as defined in the Act. While the Tribunal acknowledged that the appellant had developed strong ties in Australia, and that separation from her current de facto partner in Australia would be distressing, it again found that these circumstances were not connected with any of the reasons set out in s 5J(1)(a). Her fear of persecution was found not to be well-founded and the difficulties that she would face did not amount to a real risk of significant harm.

(m)    Having regard to all of the appellant’s claims, both individually and cumulatively, the Tribunal did not accept that she had a well-founded fear of persecution upon her return to Malaysia, now or in the foreseeable future. It did not accept that there were substantial grounds for believing that there was a real risk that she would suffer significant harm as a necessary and foreseeable consequence of her being returned to Malaysia. Accordingly, it was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(a) or (aa) of the Act. The delegate’s decision was affirmed.

The application to the Federal Circuit and Family Court of Australia (Division 2)

11    On 20 December 2017, the appellant filed an application in the Federal Circuit Court of Australia (as it was at that time), seeking judicial review of the Tribunal’s decision. Her application contained one ground of review, which was (in its own words) as follows:

1.    The decision of the AAT is affected by jurisdictional error.

Particulars

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

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

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

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

12    On 22 August 2022, the appellant appeared at a hearing before the primary judge. As noted in her Honour’s judgment, the appellant did not address in her oral submissions the grounds raised in her written application. Instead, the appellant repeated a number of the claims that she had raised before the Tribunal. The primary judge found that she was effectively “asking the Court to find that she is owed protection obligations by Australia”. This was beyond the jurisdiction of the Court.

13    The primary judge proceeded to deal with the single ground upon which the application was brought, and the four reasons for which the Tribunal’s decision was said to have been affected by jurisdictional error. After a thorough analysis of those reasons, notwithstanding the lack of particulars to support them, the primary judge concluded that the sole ground in the appellant’s written application did not establish jurisdictional error on the part of the Tribunal.

The appeal to this Court

14    The appellant filed a Notice of Appeal on 21 September 2022. She attended at the hearing of the appeal on 8 November 2023 without representation, but with the assistance of an interpreter.

15    Despite being informed at the hearing that the essential questions before the Court were whether the Tribunal had erred in the process by which it reached its decision and whether the primary judge had erred in upholding the Tribunal’s decision, the appellant addressed, almost exclusively, the merits of the Tribunal’s decision. She asserted that the Tribunal’s findings were erroneous, and she sought to add to the evidence that was before the Tribunal in relation to various issues of fact.

16    It is well established that this Court has no authority to review the Tribunal’s findings of fact in order to determine, in effect, whether it would have made different findings in the circumstances. Nor can it receive additional evidence of the kind raised by the appellant. As a result, despite the conviction with which they were expressed, the appellant’s oral submissions did not materially advance her case.

17    The observation that the appellant was unable to make submissions that were relevant in the context of the present appeal is not meant as a criticism. The limited scope of an appeal from a refusal to grant a remedy on an application for judicial review frequently proves difficult for litigants without legal training to understand. Nevertheless, the fact remains that this Court is, in the present circumstances, able to consider only grounds of appeal that relate to an alleged jurisdictional error in the Tribunal’s decision, and a corresponding error in the decision of the primary judge. The appellant, regrettably, did not raise any such grounds.

18    It is convenient to address the appellant’s written material before turning to consider her oral submissions.

Determination

19    The appellant’s Notice of Appeal raises what appear to be new allegations of error on the part of the Tribunal. The single ground of appeal in the Notice of Appeal is expressed (in its own words) as follows:

1. The decision of the Federal Circuit Court is affected by jurisdictional error in that;

Particulars

(a) the tribunal erred by not considering whether the Applicant had a well founded fear of persecution or a real risk of significant harm and the court by affirming that decision has also erred in its finding.

(b) The tribunal has not properly considered the alternative criterion in s.36(2)(aa), that is, whether there are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia, there is a real risk that the applicant will suffer significant harm and the court has erred by affirming that finding.

20    To the extent that the appellant now seeks to raise alleged errors by the Tribunal that were not the subject of the application for judicial review before the primary judge, she requires the leave of the Court: see, generally, VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588, 598 – 599 [46] – [48]; Francuziak v Minister for Justice (2015) 238 FCR 332, 335 [11]; Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12 [105]. Leave may be refused on the basis that the new allegations lack merit: Han v Minister for Home Affairs [2019] FCA 331 [8]; EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 129 [5].

21    There is some prima facie reason to believe that the points expressed in the appellant’s Notice of Appeal do amount to allegations of error on the part of the Tribunal that were not advanced before the primary judge. Giving the appellant the benefit of the doubt, however, it might be observed that paragraph (a) of the particulars raises an alleged error that is similar to the error asserted in paragraph (a) of the particulars to the single ground of the application before the primary judge. Likewise, paragraph (b) of the particulars raises an alleged error that is similar to the error asserted in paragraph (d) of the particulars to the ground advanced before the primary judge.

22    There are nevertheless two critical difficulties with the appellant’s ground of appeal in this Court.

23    First, the ground of appeal and its particulars contain no more than undetailed assertions of error. The appellant has not put on any written submissions in support of the ground, despite having had the opportunity to do so. The material before this Court accordingly lacks meaningful particularisation. It does not identify with sufficient specificity any error on the part of the Tribunal. The failure to particularise a ground of review is itself a sufficient basis upon which to dismiss it: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 [37].

24    Secondly, and in any event, there is nothing in the Notice of Appeal that justifies overturning the primary judge’s conclusion that no jurisdictional error was committed by the Tribunal. At its highest, the Notice of Appeal seems to invite the Court to rehear the arguments originally put before the Tribunal; that is, in other words, to engage in a review of the Tribunal’s decision on the merits. This is impermissible: see Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35 – 36, quoted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.

25    A review of the Tribunal’s reasons, as summarised above, shows that it carefully considered all of the appellant’s claims and applied the correct tests in assessing whether the criteria in s 36(2)(a) and (aa) of the Act were satisfied. Its conclusion that they were not satisfied was available to it on the material, including the appellant’s written and oral evidence. That conclusion was also available as a logical and rational result of the reasons that it gave.

26    The contention in paragraph (a) of the particulars to the appellant’s ground of appeal must be rejected. It is clear from the Tribunal’s reasons that it did consider, comprehensively and in detail, whether the appellant had a well-founded fear of persecution or would face a real risk of significant harm upon her return to Malaysia.

27    The contention in paragraph (b) of the particulars must also be rejected. Again, it is clear from the Tribunal’s reasons that it did properly consider the criterion in s 36(2)(aa) — that is, that there are “substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm”. References to this criterion are perceptible throughout the Tribunal’s reasons. It is not possible to identify what exactly it is that the appellant alleges was improper about the consideration devoted to the criterion by the Tribunal.

28    At the hearing, the appellant contended that she would suffer harm if she returned to Malaysia. However, she supported this contention only by repeating aspects of the evidence that she had given before the Tribunal — albeit with some elaboration. She claimed that her ex-husband may kill her, and explained how his past abusive behaviour had caused her to leave Malaysia. She also claimed that she may be killed because of her financial troubles in Malaysia. She pointed out that she was a single mother and that, if she was killed, no one would be there to look after her son. The need to care for her son also limited her ability to work in Malaysia, which made it practically difficult for her to attempt to resolve her financial concerns.

29    These issues were addressed by the Tribunal, as identified above. The appellant’s claims before this Court only challenged the Tribunal’s findings of fact and, in this way, invited this Court to engage in merits review. Again, this is impermissible. In the end, the appellant was unable to identify any relevant jurisdictional error in the Tribunal’s decision. Consequently, she was unable to demonstrate any error in the primary judge’s decision.

Conclusion

30    It follows that there was no error in the decision of the Tribunal, or in the decision of the primary judge. The appeal should be dismissed with costs.

Associate:    

Dated:    14 November 2023