ABT16 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

ABT16 v Minister for Home Affairs [2019] FCA 836

Appeal from: ABT16 & Anor v Minister for Immigration & Anor [2018] FCCA 1084
File number: NSD 932 of 2018
Judge: PERRY J
Date of judgment: 5 June 2019
Catchwords: MIGRATION – appeal from Federal Circuit Court dismissing application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) – where AAT affirmed delegate’s decision refusing to grant the appellants a protection visa – whether AAT failed to consider an essential component of the claims to fear harm, being the accrual of interest on unpaid debts and/or significant delay in repayment – where appellants did not claim that these aspects of the claims bore upon the risk of harm or led evidence to that effect – where s 5AAA, Migration Act 1958 (Cth), imposes responsibility on visa applicants to specify claims and lead evidence – whether AAT’s reasoning was legally unreasonable – where an aspect of the AAT’s reasoning was illogical and irrational but the error was not material – appeal dismissed
Legislation:

Migration Act 1958 (Cth) s 5AAA

Migration Amendment (Protection and Other Measures) Act 2015 (Cth)
Cases cited:

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496

EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780

Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220

Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Date of hearing: 21-22 November 2018, 7 May 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 38
Counsel for the Appellants: Mr J F Gormly
Solicitor for the Appellants: Labour Pains Legal
Counsel for the First Respondent: Mr P M Knowles
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The Second Respondent filed a submitting notice

ORDERS

NSD 932 of 2018
BETWEEN:

ABT16

First Appellant

ABU16

Second Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

PERRY J

DATE OF ORDER:

5 JUNE 2019

THE COURT ORDERS THAT:

1.The…

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Details
Case
[2019] FCA 836
Decision Date

CaseChat Overview and Summary

In the case of ABT16 v Minister for Home Affairs, the applicants, a mother and her son, sought a judicial review of a decision by the Administrative Appeals Tribunal (AAT) affirming the delegate’s refusal to grant them a protection visa. The applicants argued that the AAT failed to consider an essential component of their claims to fear harm, specifically the accrual of interest on unpaid debts and significant delays in repayment. The applicants contended that these aspects of their claims bore upon the risk of harm if they were to return to China. The primary legal issue before the court was whether the AAT had failed to consider an essential component of the applicants’ claims and whether this failure constituted a material error.

The court noted that it is well established that a failure to consider an essential component of an applicant’s claims to fear harm may result in jurisdictional error. However, the court found that the applicants did not claim that the accrual of interest on unpaid debts or significant delays in repayment bore upon the risk of harm or lead evidence to that effect. The court also highlighted that section 5AAA of the Migration Act imposes a responsibility on visa applicants to specify their claims and lead evidence. The court concluded that the AAT’s reasoning, while containing an illogical and irrational aspect, did not result in a material error as the applicants could not establish that the AAT’s failure to consider the accrual of interest and delays in repayment could have led to a different decision.

The appeal was dismissed with costs. The court granted leave to amend the notice of appeal and raise new grounds, but ultimately found the appeal to be without merit. The serious consequences of an unsuccessful appeal were considered in granting leave, but the court held that the applicants could not demonstrate that the AAT’s failure to address the accrual of interest and delays in repayment was material to the decision.

Orders

Orders of the court

1. The application for an extension of time within which to appeal is treated as an appeal.

2. Leave is granted to file the amended notice of appeal and to raise the new issues.

3. The appeal is dismissed.

4. The appellants are to pay the first respondent’s costs as agreed or assessed.

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

Background

Background to the litigation

For the reasons set out below, leave is granted to amend the notice of appeal and to raise the new grounds of appeal but the appeal must be dismissed with costs.2. BACKGROUND2.1 The protection visa application and delegate’s decision In her protection visa application, the mother claimed to fear harm from “[t]he authorities, the creditors and the debt collectors” (AB 20). In response to the following question, “Why do you think this will happen to you if you go back”, the mother relevantly claimed that:The perverted government officials colluded with the property developers having deceived our investment money. The property developer needed money for the development project by way of raising money in our area. I thought it would be a good investment opportunities and then I have borrowed money from my friends and villagers. In return, I have to pay higher interest than the interest of loan in the bank. But, the project did not exist or collapsed, I have got nothing back from the investment. I thus was not able to return the money I have borrowed.If I return to China, the creditors and the debt collectors will after me for their money. It will endanger the safety of my life.(without alteration) The mother raised additional claims in her interview before the delegate as to the harm feared by her if she were returned to China. Relevantly, as summarised by the delegate, the mother claimed that:… she had borrowed $35,000 from two of her friends which she invested in a real estate project which eventually fell through. She was unable to return the money which she borrowed on high interest rates. She further explained the friends from whom she borrowed the money threatened that they would take action against her if she did not return the money. After she explained to them that she was unable to return the money they asked her to go to the police station with them as they wanted the Police to arrest her. She continued saying that the police actually came to her residence and arrested her and put her to jail for one week until a friend of hers came and bailed her out from custody. …The applicant went on saying that due to her not being able to repay her loan the Government confiscated one acre of her land, which could be used for housing development. However she was not given any money for compensation, neither did the Government give any money to her lenders from whom she had borrowed the money.(Delegate’s reasons at AB 59) Based upon adverse credibility findings, the delegate did not accept that the mother was detained due to her being in debt, or that she has a genuine fear of returning to China and would face charges relevantly by reason of her debts (AB 60). 2.2 The Tribunal’s decision In its reasons, the Tribunal described the mother’s evidence about the loan to invest in the real estate development project and an earlier loan at the Tribunal hearing relevantly as follows:g. The [mother] left China because many things happened. She was sued. She fears she will be arrested if she returns to China because she had such a big debt and the government took away her land.h. Her land was taken [in] 2007 because she borrowed money from her friend. The government and her friend took the land. The [mother] had been farming the land. She could have built a property on the land or had a shop on it. The Government told the [mother] that they took the land because she owed money to two friends. The government build a property on her land. This was while the [mother] was still in China.i. The two friends the [mother] owed money to … lived in the [mother’s] town. … She borrowed [several hundred thousand] yuan from them for one year in 2006. She had to repay them interest of 50,000 [yuan]. The [mother] used the money she borrowed to invest in real estate. j. Her two friends were doing the real estate so the [mother] borrowed money from them. They said she could have a bonus from them. Her two friends gave her the money and she then gave it to them. She gave them the money and they lost it. They lied to her. They told her they can lend her some money and she could make money but they didn’t make money and they didn’t give her one cent. She doesn’t know what happened because she always stayed at home and didn’t know what happened outside.k. The [mother] owes money to her sisters and friends and neighbours. Her husband was a farmer and didn’t make much money. At an earlier stage the [mother] ran a small business, a grocery shop, but she lost money. She borrowed money … from her three sisters [and from friends]. … Her elder brother asked his wife to borrow money from her father to lend to the [mother]. She ran the grocery shop for one year. It made a loss so she sold the business. With the money from the sale of the business her husband started a construction business, but it also suffered a loss. She did not repay the people who lent her money even though they wanted their money back. …(Tribunal reasons at [20])

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Based upon adverse credibility findings, the delegate did not accept that the mother was detained due to her being in debt, or that she has a genuine fear of returning to China and would face charges relevantly by reason of her debts (AB 60). 2.2 The Tribunal’s decision In its reasons, the Tribunal described the mother’s evidence about the loan to invest in the real estate development project and an earlier loan at the Tribunal hearing relevantly as follows:g. The [mother] left China because many things happened. She was sued. She fears she will be arrested if she returns to China because she had such a big debt and the government took away her land.h. Her land was taken [in] 2007 because she borrowed money from her friend. The government and her friend took the land. The [mother] had been farming the land. She could have built a property on the land or had a shop on it. The Government told the [mother] that they took the land because she owed money to two friends. The government build a property on her land. This was while the [mother] was still in China.i. The two friends the [mother] owed money to … lived in the [mother’s] town. … She borrowed [several hundred thousand] yuan from them for one year in 2006. She had to repay them interest of 50,000 [yuan]. The [mother] used the money she borrowed to invest in real estate. j. Her two friends were doing the real estate so the [mother] borrowed money from them. They said she could have a bonus from them. Her two friends gave her the money and she then gave it to them. She gave them the money and they lost it. They lied to her. They told her they can lend her some money and she could make money but they didn’t make money and they didn’t give her one cent. She doesn’t know what happened because she always stayed at home and didn’t know what happened outside.k. The [mother] owes money to her sisters and friends and neighbours. Her husband was a farmer and didn’t make much money. At an earlier stage the [mother] ran a small business, a grocery shop, but she lost money. She borrowed money … from her three sisters [and from friends]. … Her elder brother asked his wife to borrow money from her father to lend to the [mother]. She ran the grocery shop for one year. It made a loss so she sold the business. With the money from the sale of the business her husband started a construction business, but it also suffered a loss. She did not repay the people who lent her money even though they wanted their money back. …(Tribunal reasons at [20]) Based upon the information she presented and confirmed at the hearing, the Tribunal summarised her claims as follows at [25] of its reasons:•She was unhappy with her neighbours raising the height of their home as it caused some water damage to her home.•A section of her land was taken by the government to build or widen a road and she was not compensated for the loss of this land.•She has borrowed money from friends and family from time to time which she has not repaid.•Two of her close friends provided a sum of money to be invested by them in real estate on the [mother’s] behalf, with the promise she would receive high percentage bonus payments, on the condition that she “repay” the initial sum invested for her plus interest. She did not receive any bonus payments and she could not make any repayments.•Her farm land has been confiscated by the government because of her debt.•She will be arrested and imprisoned by the government because she owes money to people.

Ratio Decidendi

Legal Principle Established

I indicated at the hearing on 7 May 2019 that I would grant leave to amend the notice of appeal and to raise the new grounds for the reasons that the Minister could not point to any prejudice which could not be addressed by an order for costs (cf Minister’s supplementary submissions at [6]) and that, viewed from a reasonably impressionistic level, the proposed grounds of appeal were not without merit. As to the latter, first, the loans in question had been outstanding for a very substantial period of time. Yet this aspect of the mother’s claims was not, at least expressly, considered by the Tribunal. Furthermore the fact that the mother’s sister and friend had not sought to enforce the first set of loans for the mother’s business otherwise than by repeated requests for repayment logically says nothing about how different people who lent the mother money at a high interest rate for an investment in a failed or non-existent real property project would respond to the mother’s failure to repay that loan. In deciding that it was appropriate to grant leave to amend to raise the new grounds, I also took into account the seriousness of the likely consequences to the appellants in the event that they are unsuccessful on the appeal. 4. CONSIDERATION4.1 Did the Tribunal fail to consider an essential component of the mother’s claims to fear harm (ground 1)?4.1.1Relevant principles First, it is well established that if the Tribunal fails to consider an essential component of an applicant’s claims to fear harm, it may fall into jurisdictional error because it will have failed to undertake a review as required by s 414(1) of the Act. As the Full Court recently held in EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214:36. Undoubtedly, a failure to consider a relevant component integer of a claim may, in appropriate circumstances, constitute a jurisdictional error: BZAFB v Minister for Immigration and Border Protection [2018] FCA 995 at [9] per Flick J. Necessarily the decision maker is also required to consider the claims and the integers thereof which are not expressly articulated but which necessarily arise on the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [61]. Secondly, any such failure must be “material” in the sense that “compliance with the condition could have resulted in the making of a different decision”: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 at [31] (Kiefel CJ, Gageler and Keane JJ); see also at [41] (Nettle J) and [66]‑[72] (Edelman J). In the present context, the requirement that the failure to address a contention is “material” means that the contention must be one which if accepted, might have established that the applicant had a well-founded fear of significant harm for the purposes of s 36(2)(aa): see by analogy WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (WAEE) at [46] (the Court).