Aae18 v Minister for Home Affairs

[2018] FCCA 3459

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAE18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3459

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.36

Cases cited:

SZNOE v Minister for Immigration [2012] FCA 96

Applicant: AAE18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 4 of 2018

Judgment of: Judge Driver

Hearing date: 27 November 2018

Delivered at: Sydney

Delivered on: 27 November 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms M Butler of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 4 of 2018

AAE18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 7 December 2017.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 20 November 2018. 

3. The applicant, an ethnic Tamil citizen of Malaysia, arrived in Australia on 12 January 2017, travelling on an Electronic Travel Authority (class UD) (subclass 601) visa.[1]

   [1] Court Book (CB) 49

4. On 9 March 2017, the applicant applied for the visa in issue.[2]  Her claims were based on economic and social grounds:  she relied on her poor financial position, her attempts to gain employment, and the economic recession and unbalanced political and social situation in Malaysia.  She also claimed that she was “unable to relocate within the country Malaysia because I think it was more better to go abroad and grab a good opportunity to improve life”.[3]

   [2] CB 1

   [3] CB 31-33

5. On 16 June 2017, the delegate refused to grant the visa.[4]  On 22 June 2017, the applicant sought review in the Tribunal.[5]  The applicant expanded on her claims in a letter received by the Tribunal on 8 November 2017.  She claimed to have borrowed money from “illegal money lenders” and subsequently from relatives and friends to pay the interest on the loan.  When the applicant was delayed in making repayments, the money lenders verbally and physically assaulted her and verbally assaulted her mother, and told them that they would put their lives in danger if they contacted the police.  The applicant’s mother forced her to leave the country for her safety.[6]

   [4] CB 49

   [5] CB 59

   [6] CB 99

6. The applicant successfully applied for postponement of the Tribunal hearing on two occasions before appearing at a hearing on 15 November 2017 with the assistance of a Tamil interpreter.[7]  On 7 December 2017, the Tribunal affirmed the decision under review.[8]

   [7] CB 102

   [8] CB 107

Tribunal's proceedings

1. The Tribunal commenced by considering the applicant’s Convention-based claims.  It did not accept that victims of loan sharks were a particular social group, but did accept that borrowers and members of their families were.  However, the Tribunal found that the essential and significant reason for the claimed harm feared by the applicant was not her membership of such a group (or her race, religion, nationality or political opinion), but for what she had done; that is, borrow money and fail to repay it.[9]

   [9] CB 111, [30]

2. Further, the Tribunal was not satisfied that the applicant was a witness of truth, noting that she did not raise her fear of harm from loan sharks in her protection visa application, and found that this claim was a late invention made to overcome inconsistent evidence.[10]  Nor did the Tribunal accept that the applicant borrowed money from her family or that her family sought to harm her.[11]  The Tribunal found that even if it were to accept the applicant’s claims, it did not accept that being required to pay money amounted to serious harm for a Convention reason.[12]

   [10] CB 111, [31]-[34]

   [11] CB 112, [35]

   [12] CB 112, [38]

3. The Tribunal was satisfied that the applicant had not suffered serious harm in Malaysia in the past, including as an ethnic Tamil Malay,[13] and went on to consider whether she would suffer serious harm on return as an ethnic Tamil woman.[14]

   [13] CB 112, [36]; CB114, [54]

   [14] CB 112, [37]

4. The Tribunal found that the applicant was able to access police protection as an ethnic Tamil.[15]  It also considered the situation for minorities in Malaysia more generally.[16]  The Tribunal was not satisfied that the police would fail to act, if requested, to offer ethnic Tamil Malays protection from loan sharks or any other criminals who sought to harm them.[17]  It was satisfied that effective state protection was available to the applicant.[18]

   [15] CB 112, [39]-[44]

   [16] CB 113, [46]

   [17] CB 113, [48]

   [18] CB 113, [49]

5. The Tribunal recorded that it had considered the applicant’s claims and evidence individually and cumulatively, and found that the applicant did not have a real chance of suffering persecution on return to Malaysia.[19]

   [19] CB 113, [50]

6. The Tribunal concluded that the applicant did not have a well-founded fear of persecution for the reasons claimed[20] and went on to consider whether she met the complementary protection criterion[21] due to the economic and political situation in Malaysia.[22]

   [20] CB 113, [50]

   [21] CB 114, [51]

   [22] CB 114, [51]

7. Based on country information which did not suggest that ethnic Tamil women suffered discrimination in employment in Malaysia, the Tribunal did not accept that the political and economic situation would prevent the applicant from finding a job.  Based on its anterior credibility findings, the Tribunal also did not accept that the applicant lost her job or that she would be unable to find a job in Malaysia.[23]  The Tribunal was satisfied that any threat or harm the applicant would face would not amount to significant harm and that the applicant could obtain protection sufficient to reduce the likelihood of harm to something less than a real risk.[24] The Tribunal concluded that the applicant did not satisfy the requirements of the complementary protection criterion and affirmed the delegate’s decision.[25]

   [23] CB 114, [53]

   [24] Section 36(2B)(b) of the Migration Act 1958 (Cth); CB 114, [54]

   [25] CB 115, [60]

The present proceedings

1. These proceedings began with a show cause application filed on 2 January 2018.  The applicant continues to rely upon that application.  There is one ground in it: 

   1.The AAT erred in law by not considering the correct social group to which the applicant belongs

   Particulars

   The applicant is a young female, ethnic minority viz Tamil, victim of shark loan, intimidated and harassed by lenders and the police failed to protect her .. The Tribunal did not consider the correct social group and the ramifications it may have on the applicant in the event of his return to Malaysia.

   (errors in original)

2. The application is supported by a short affidavit filed with it which I received as a submission.  I have before me as evidence the court book filed on 8 March 2018. 

3. I invited further oral submissions from the applicant this morning.  She drew attention to a small error at [5] of the Minister’s submissions relating to the detail of her claim to have been assaulted in the presence of her mother by money lenders.  The applicant was not, however, in a position to advance the claim of jurisdictional error.

4. While her ground of review focuses on an assertion in relation to a particular social group claim, the simple fact in this case is that the Tribunal rejected the factual basis for the applicant’s claim for protection.  The applicant conceded in oral argument that she had no problem with the rejection of that factual claim.

5. The Minister’s submissions otherwise deal appropriately with the ground of review advanced.  I agree with those submissions.

6. The Tribunal found that the applicant was not a witness of truth and on that basis, rejected her claim that she borrowed money from loan sharks who sought to harm her.[26] It also accepted that the applicant was an ethnic Tamil,[27] and considered the risk of harm to her as a Tamil woman.[28]  As for the other characteristics said to make up “the correct social group”, the applicant did not claim to fear harm as a “young female” and no such claim arose squarely on the material.  To the extent that the Tribunal accepted the applicant’s claims, it confirmed that it considered them cumulatively.  Given the nature and extent of the claims before the Tribunal, the Tribunal’s reasons disclose an adequate consideration of the same and do not reveal any jurisdictional error. 

   [26] CB 112, [34]

   [27] CB 111, [29]

   [28] CB 112, [37]; CB 113, [43]-[47]

7. In any event, where the Tribunal rejected the applicant’s factual claims arising out of the borrowing of money, and did not consider she faced any well-founded fear of persecution, it was unnecessary for it to consider whether she would suffer harm due to her membership of a particular social group of borrowers and their families, let alone consider whether she was a member of the purported social group “young female Tamil victims of shark loans”.[29]

   [29] SZNOE v Minister for Immigration [2012] FCA 96 at [78]

Conclusion

1. It is clear that the applicant is unable to advance an arguable case of jurisdictional error by the Tribunal. I will order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the scale as it applied when the application was filed.  The applicant referred to her unemployment, but her capacity to pay was not the issue in relation to costs, but rather whether the costs have been reasonably and properly incurred.  I am satisfied that they have been.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       28 November 2018