AZY18 v Minister for Home Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of the appeal, such costs to be taxed in default of agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The appellant has appealed the decision of the Federal Circuit Court of Australia ("Federal Circuit Court") (AZY18 v Minister for Home Affairs & Anor [2018] FCCA 1637) dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal ("the Tribunal"). The Tribunal had affirmed a decision of a delegate of the first respondent refusing to grant the appellant a Protection (Class XA) visa. 2 The appellant is a citizen of Malaysia. In his visa application, the appellant claimed to fear harm by reason of being indebted to a loan shark from whom he borrowed money to pay for his father's medical expenses and who had kidnapped, mistreated and threatened the appellant when he fell behind in his repayment of the loan. He claimed that he left Malaysia fearing that his life was in danger because he would not be able to meet the loan shark's demands and that he fled to Australia to earn money to repay the loan completely and assist his family. The Tribunal accepted that the appellant's claims and evidence at face value appeared generally plausible and consistent with country information. However, the Tribunal considered that the appellant's evidence at the hearing appeared vague, sometimes confused and lacking in context. The Tribunal formed the impression that the appellant was drawing on his personal experience to some extent in describing his family's financial pressures and the toll of his father's illness and death on the family but found other aspects of his evidence "problematic" such as his asserted "prominent role" in funding his father's treatment, the loan shark's alleged pursuit of him and, in particular, the claimed kidnapping and torture and his efforts to avoid future harm. The Tribunal considered that these aspects cast doubt over the circumstances that led him to leave Malaysia for Australia and more generally his need for protection. In light of its concerns about the appellant's evidence, the Tribunal did not accept that the appellant had borrowed money from the loan shark, or that he was kidnapped, mistreated and threatened when failed to make repayments or that he was pursued throughout Malaysia or that they continued to pursue him. The Tribunal was not satisfied that the appellant had a well-founded fear of persecution if he returned to Malaysia and found he was not a refugee as defined by s 5H of the Migration Act 1958 (Cth) ("the Act") nor that there was a real risk that the appellant would suffer significant harm on return to Malaysia having regard to its factual findings. Accordingly, the Tribunal affirmed the delegate's decision. 3 The appellant's judicial review application to the Federal Circuit Court raised three grounds. The first ground simply asserted that the Tribunal's decision was affected by jurisdictional error. The primary judge correctly stated that the bare assertion of alleged error is not capable of making out a jurisdictional error. The primary judge nonetheless considered whether the reasoning of the Tribunal disclosed jurisdictional error and concluded that the Tribunal's findings were open to it on the evidence and material and the findings were not illogical, irrational or unreasonable. The primary judge reasoned as follows (at [14]-[17]): In making the adverse credibility findings, the Tribunal took into account that the applicant's evidence as to the exact terms and duration of the loan, was less than certain. The Tribunal found much of the applicant's claim in relation to the loan sharks to be lacking in detail and context and found this cast doubt on whether he was subject to any targeting at all. The Tribunal found the applicant provided little insight as to why the gang kidnapped and detained him for 10 days only to change their minds and release him to allow him to earn money to repay the loan. The Tribunal also had concerns about the applicant's evidence of fleeing to another part of Malaysia and found the applicant gave confused evidence about what, if anything, happened during his two or three day stay there. The Tribunal found the applicant's ability to keep his job and return to work in Selangor, which is where the gang evidently knew to find him, rather than explore other options in Malaysia, added to the Tribunal's doubts. The Tribunal also took into account country information in relation to State protection and relocation. The Tribunal explored with the applicant the medical evidence relating to his claimed abduction and the Tribunal found the applicant's confused evidence about what occurred in Pahang and his eventual return to Selangor strongly suggested that he was drawing from some short-term visit to Pahang, rather than attempting flight from harm. The Tribunal found the applicant's details of his personal experiences gave [rise] to multiple concerns as to whether he was speaking from personal experience regarding his protection claims. Those adverse credibility findings by the Tribunal were logical and rational on the face of the material before the Court. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review. As ground 1 is not supported by any particulars, ground 1 cannot make out any jurisdictional error. No jurisdictional error is made out by ground 1. 4 The second ground alleged that the Tribunal's decision was "made without solid proof". The primary judge rejected this ground, reasoning that the generalised assertion that the Tribunal is required to have solid proof did not reflect any obligation imposed upon the Tribunal by law. The primary judge stated that the Tribunal was not required to make the appellant's case for him nor required to accept the appellant's case and evidence uncritically, and that the Tribunal did not need rebutting evidence before holding that the appellant's claims were not made out. The primary judge further reasoned that the Tribunal's adverse findings were the subject of logical reasons for not accepting the appellant's claims. 5 The third ground requested that the appellant's application be sent to the Tribunal for consideration. The primary judge observed that this ground was not a proper ground of review and simply invited impermissible merits review by the Court. 6 The appellant's notice of appeal raised two grounds. 7 Ground 1 alleged that the primary judge failed to consider that the Tribunal had no jurisdiction because its "reasonable satisfaction" was not arrived at in accordance with the provisions of the Act. This ground appears to be a template ground that does not engage with the reasons for decision of the Federal Circuit Court from which the appellant has appealed. The appellant did not file written submissions in support of that ground and when asked in oral submissions what he wished to submit in support of that ground he stated "nothing". However, I will treat this ground as a challenge to the finding of the Federal Circuit Court that the Tribunal's adverse credit findings were open to it on the evidence. Adverse credibility findings may involve jurisdictional error on recognised grounds such as the legal unreasonableness of reaching a finding without logical or probative basis (ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109 at [83]) but, in this case, no jurisdictional error is apparent in the reasoning of the Tribunal for not accepting the appellant's claims. The Federal Circuit Court was correct to hold for the reasons given that the Tribunal gave cogent reasons for not accepting the appellant's claims based on the vague and confusing aspects of his evidence concerning key events which the Tribunal considered did not have plausibility, such as his claim to have been kidnapped and detained and his account as to why he fled to another part of Malaysia. Error was not disclosed in the primary judge's finding that the Tribunal's adverse findings were open and were not irrational, illogical or unreasonable. 8 Ground 2 alleged that the "learned judge has dismissed the case without considering the legal and factual errors contained in the decision of the [Tribunal]". The appellant also filed no written submissions in support of that ground and, when asked at the hearing if he had any oral submissions in support of that ground, he said "nothing". The appellant was unable to assist the Court in identifying the asserted legal and factual errors in the decision of the Tribunal and as the alleged "legal and factual" errors are not identified, the ground is meaningless and cannot succeed: SZTOG v Minister for Immigration and Border Protection [2018] FCA 112 at [23]-[31]. 9 The only matter advanced by the appellant in support of his appeal was that he has debts to pay in Australia which he cannot pay if he returns to Malaysia. Whether or not he has debts in Australia is not a matter that is relevant to the disposition of this appeal, which is concerned with whether there was any error in the decision of the Federal Circuit Court in dismissing his application for review. As a review of the Tribunal's reasons does not disclose any apparent jurisdictional error, the appeal must be dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.