ALS17 v Minister for Immigration

[2018] FCCA 1394

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALS17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1394

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Malaysia due to a debt – applicant not believed – whether the Tribunal decision is unreasonable considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.424A

Cases cited:

Applicant WAEE v Minister for Immigration (2003) 75 ALD 630

Minister for Immigration v SZMDS (2010) 240 CLR 611
Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
SZBYR v Minister for Immigration & Anor [2007] 81 ALJR 1190

Tran v Minister for Immigration [2004] FCAFC 297

W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 and Durairajasingham

Applicant: ALS17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2810 of 2016

Judgment of: Judge Obradovic

Hearing date: 4 May 2018

Date of Last Submission: 4 May 2018

Delivered at: Parramatta

Delivered on: 8 June 2018

REPRESENTATION

Appearing for the Applicant: In person

Appearing for the Respondents: Mr Day

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application filed 6 February 2017 is dismissed.

2. The Applicant is ordered to pay the costs of the Minister fixed in the amount of $4,530.

These orders have been amended pursuant to Rule 16.05(2)(e) of the Federal Circuit Court Rules (2001).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2810 of 2016

ALS17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant is a citizen of Malaysia who arrived in Australia on 16 January 2014, holding an Electronic Travel Authority, valid until 16 April 2014. On 14 October 2014, having been unlawful in the country for six months, the applicant applied for a protection visa.

2. In support of his application for a protection visa, the applicant claimed that he feared to return to Malaysia because his life had been threatened by a person to whom he owed money to.

3. The applicant claimed as follows:

   a)He was a tiler in Malaysia[1];

   b)In January 2012, he applied for a bank loan in order to open a company and contract for projects, but was refused the bank loan.[2] 

   c)The applicant was then introduced to a man who lent money, who apparently approached him and asked him how much money the applicant needed. There was then a loan offer made to the applicant of Rm 120,000 with monthly interest of 6%, which the applicant accepted because he thought he could afford it.

   d)In March 2012, the applicant was able to obtain a sub-contract to do some tiling work. He was paid a deposit and then completed the job over a period of six months. After the job was completed, the person who contracted with the applicant to complete the job refused to pay him the balance of the agreed price. The applicant then sold his home, paid off his home loan and used the remaining money to pay off his workers. He was requested to do some rectification work, which he did, but he was still not paid for the job.

   e)Some time later, the taxation office made a request that the applicant pay taxation of a certain amount and if he did not do so then he could not run his business. The applicant was ‘very angry’ and so he decided to go to the Malaysian Chinese Association to lodge a complaint against the taxation office official on the basis that they were abusing their power. He was informed by the Malaysian Chinese Association that the officials had acted according to law.

   f)Due to cash flow difficulties the applicant could not continue his business. He still owed the man he borrowed money from, and after that man learnt that the applicant had closed his business he went to the applicant’s home often with other people to intimidate him and threaten to kill him if he did not pay his loan. The applicant felt he had to leave Malaysia, and after he did, his family was constantly harassed.

   g)He fears to return because his life has been threatened.

   [1] The applicant was born on 1 March 1983. He was married on 12 April 2013. He and his wife have a child together. That child was born on 7 September 2014. The applicant’s wife and child remain living in Malaysia.

   [2] There is a suggestion by the applicant that he was discriminated against in the loan application process due to his Chinese ethnicity

4. On 24 February 2015, the applicant was interviewed for the purpose of his protection visa application.

5. On 5 March 2015, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The applicant applied to the (then) Refugee Review Tribunal[3] for a review of that decision.

   [3] Matter ultimately being determined by the Administrative Appeals Tribunal (“Tribunal”)

6. On 15 November 2016, the applicant attended a hearing before the Tribunal. Following the hearing, on 16 November 2016, the Tribunal wrote to the applicant inviting him to comment on or respond to certain information which the Tribunal said would, be the reason, or part of the reason, for affirming the decision under review. It appears that this was purported to be a request pursuant to s424A Migration Act 1958 (Cth).

7. By way of letter dated 29 November 2016, the applicant sought an extension of time to respond to the Tribunal’s request with the Tribunal subsequently granting an extension to 20 December 2016. Except for what was contained in the letter dated 29 November 2016, the applicant did not provide any further responses to the Tribunal’s request. 

8. On 6 January 2017[4] the Tribunal affirmed the delegate’s decision not to grant the applicant a protection visa.

   [4] With a corrigendum dated 11 January 2017 being a correction relating to the date of the delegate’s decision

9. The applicant seeks judicial review of a decision of the Tribunal made on 6 January 2017.

10. In order to succeed, the applicant must establish that the Tribunal’s decision is affected by jurisdictional error.

11. In his application, the applicant sets out four grounds of review, namely:

    a)That the Tribunal, on unsubstantiated evidence, believed the applicant would not suffer any significant harm if he returns to Malaysia;

    b)That the Tribunal put little weight on the statements supporting the applicant’s claim;

    c)That the Tribunal did not consider the applicant would be harmed because of his Chinese ethnicity after he returns to Australia; and

    d)That the Tribunal put irrelevant questions to the applicant.

12. Even though the applicant was ordered to provide written submissions to support those grounds he has not done so. At the hearing, the Court invited the applicant to make oral submissions in support of his application which opportunity the applicant accepted. 

Determination

1. A decision affected by jurisdictional error is, as a matter of law, no decision at all. A jurisdictional error in the requisite sense of these proceedings can be understood as an error which has led the Tribunal to somehow fail to fulfil its duty and function of reviewing the decision of the delegate.

Grounds 1 and 2

1. The applicant’s submissions at final hearing in respect of the first two grounds can be summarised as follows:

   a)The Tribunal did not consider factors which were relevant from the applicant’s point of view;

   b)The Tribunal did not believe the applicant when he said that he would be facing threats of harm if he returned to Malaysia.

   c)It was unfair that the Tribunal did not believe the applicant.

   d)That at the hearing before the Tribunal the applicant was able to say what he wanted, even though the hearing lasted for a short period of time.

   e)That the Tribunal gave the applicant’s statement(s) little weight.

2. In determining grounds 1 and 2, it is necessary to consider the reasons of the Tribunal, which may in turn be summarised as follows:

   a)The applicant was not found to be a truthful or credible witness.[5]

   [5] CB 91 at [15]

   b)The applicant’s claim that he left Malaysia because he was being threatened by a money lender or that he feared that he would be harmed by the money lender were not accepted by the Tribunal.[6]

   [6] CB 91 at [15]

   c)The failure by the applicant to apply for a protection visa in a timely manner[7] was found to be a strong indicator that the applicant was not fearful of serious harm if he was to return to Malaysia.

   [7] CB 91-92 at [16]-17].

   d)The Tribunal found that the applicant’s evidence regarding the business he operated, his debt and the problems this caused him was confused and contradictory:[8]

   [8] CB 92 [19] – [22] for the particulars of the confused and contradictory evidence leading the Tribunal to find that the applicant’s explanations for the inconsistencies were not accepted, that the applicant did not provide honest evidence and that he was not a credible witness.

   i)In written and oral submissions to the Department, the applicant claimed that his business was subcontracted to do work in 2012. In his statement to the Department he indicated the work began in March 2012 and took 6 months. During his February 2015 interview he said he was contracted in late 2012, and completed the work in March/April 2013. At the hearing before the Tribunal he said he worked from early 2012 until August/September 2012.

   ii)On 15 October 2014 the applicant claimed he was paid a deposit of Rm 100,000 and at hearing his evidence was that the deposit he was paid was Rm 30,000.

   iii)On 15 October 2014 the applicant claimed he was forced to sell his house to pay his workers at the end of the contract, at the hearing he said he paid his workers and all expense during the project and that at the completion of the project the only money he owed was to the lender.

   iv)In his written and oral evidence to the Department the applicant claimed after he closed his business the money lender came to his home and threatened him and that after he left for Australia his wife and child continued to be threatened and were forced into hiding. At hearing he said he paid interest on the loan until mid-2013 and after that he moved from place to place to avoid problems. He also said his wife was living with family and that her family continued to make the payments to the money lender after the applicant’s departure to Australia.

   v)These and other discrepancies were put to the applicant in writing on 16 November 2016. His very limited explanation for the inconsistencies was not accepted by the Tribunal.

   e)The Tribunal did not accept that the applicant borrowed a large sum of money from a money lender prior to leaving Malaysia, and it therefore followed that the Tribunal did not accept that he or anyone else in his family had been threatened or harmed or harassed by money lenders at any time.[9]

   f)The Tribunal found that there was no credible evidence which suggested that the applicant faces a real chance of being persecuted for a Convention reason if he was to return to Malaysia, and therefore the Tribunal was not satisfied that the applicant’s fears were well founded.

   g)The Tribunal rejected the application for complementary protection on the same basis.

   [9] CB 93 at [23]

3. In reality, the applicant’s contentions in relation to these ground do not rise above a strong disagreement with the Tribunal’s reasoning and decision. In essence, the applicant complains that the Tribunal did not believe him. The applicant did not at hearing before this Court identify which particular matters the Tribunal failed to consider, but which the applicant asserted were relevant from his point of view.

4. The Tribunal’s findings that the applicant was not a credible witness were open to it on the material before it and for the reasons it gave. Those reasons largely centred on inconsistencies in the applicant’s evidence which the applicant had subsequent to the hearing been invited to comment upon but did not. The Tribunal’s reasons disclose a logical chain of reasoning between the established facts and the conclusions drawn by the Tribunal from them. The Tribunal analysed the applicant’s evidence in support of his claim and found it wanting.

5. The Tribunal is not required to accept uncritically any and all claims made by the applicant. The Tribunal is not required to have rebutting evidence to make its findings. The applicant needs to establish his claim.

6. Grounds 1 and 2 in effect invite the Court to engage in impermissible merits review and are not made out.[10]

   [10] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259, 272 per Brennan CJ, Toohey, McHugh and Gummow JJ

Ground 3

1. The applicant conceded at hearing that before the Tribunal he argued that he feared harm, not because of his Chinese ethnicity, but because he owed money to a money lender and was not able to pay the debt.

2. This is consistent with the Tribunal’s decision, namely that the applicant did not press his claim, as contained in his visa application, that he feared he would be prosecuted because of his Chinese ethnicity and political opinion.

3. This ground is therefore not made out.

Ground 4

1. The applicant’s submissions can be summarised as follows:

   a)The applicant said that he was asked many repetitive questions.

   b)The applicant would answer these questions but then they were asked again, and therefore they were irrelevant questions.

2. When the Court pressed the applicant to give a specific example of a question which he asserted was irrelevant, the applicant said that he was asked an example of such a question was to the effect of “how come he borrowed money and what would happen to him if he returned to Malaysia”. He submitted he was asked these questions, he would then answer them and he was asked the question again. Once again, the applicant submitted that therefore the questions were irrelevant.

3. While on the face of the applicant’s application for judicial review, this ground may well have established jurisdictional error, the submissions made by the applicant at hearing illuminated his complaint and clearly showed that his complaint was not about being asked irrelevant questions, (or rather the Tribunal taking into consideration irrelevant matters) but about being asked the same questions more than once and/or not being believed in the answers he gave to those questions.

4. The Tribunal was entitled, as it did, to put to the applicant the inconsistencies in his evidence and/or to invite him to answer questions in the manner it did.

5. This ground is an invitation to the Court to engage in merits review, which is not permissible. For similar reasons as explained in respect of grounds 1 and 2, this ground is not made out.

Letter of 16 November 2016

1. As noted earlier, following the hearing, on 16 November 2016, the Tribunal wrote to the applicant inviting him to comment on or respond to certain information which the Tribunal said would, be the reason, or part of the reason, for affirming the decision under review. It appears that this was purported to be a request pursuant to s424A Migration Act 1958 (Cth).

2. However, for this information to be susceptible to the provisions of s.424A Migration Act 1958 (Cth) it must refer to evidentiary material or documentation and not to the Tribunal’s thought processes or the existence of doubts, inconsistencies or the absence of evidence.[11]

   [11] SZBYR v Minister for Immigration & Anor [2007] 81 ALJR 1190[2] at [18].

3. It was submitted on behalf of the Minster that even though the Tribunal invited the applicant to comment on certain identified information, and considered the applicant’s response[12], it was not obliged to do so as the identified information was not information pursuant to s424A(1). It was submitted that the information did not directly undermine the applicant’s application for refugee status. The applicant did not, in any event, submit that the Tribunal failed in its obligations in this regard.

   [12] CB 91 at [12], 92 at [19]-[20]

4. What was of concern to the Court, was a particular finding of the Tribunal in light of the wording of the letter dated 16 November 2018. The Tribunal found:

   23.    I do not accept that the applicant borrowed a large sum of money from illegal money lenders prior to leaving Malaysia.

5. The letter read as follows:

   This is relevant information because it could cause the Tribunal to conclude that you have not provided credible evidence regarding being at risk of harm from a money lender to who you owe a substantial amount of money and to affirm the decision to no grant you a protection visa. (emphasis added)

6. On one reading of the letter, it infers that the Tribunal accepted that the money was owed by the applicant to the money lender, exactly the assertion which the Tribunal did not accept in its final decision. However, this is placing a too restrictive reading on part of the letter. It must be read as a whole. The letter puts to the applicant certain inconsistencies in his evidence and asks him to explain those matters.[13] It is not information for the purposes of s424A of the Act. Furthermore, Pt 7 Div 4 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters the Tribunal deals with.

   [13] The delegate made a similar finding: CB

Conclusion

1. The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. Therefore, the application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 8 June 2018

However, the Tribunal’s reasons are confused and factually incorrect in this regard. At [9] the Tribunal notes that “The applicant obtained an Electronic Travel Authority and arrived in Australia on 16 January 2014. His visa expired on 14 October 2014. He applied for a protection visa on the same day.” This is not correct. The applicant’s visa expired on 16 April 2014. He was an unlawful citizen until a bridging visa was granted on 16 October 2014, after he applied for a protection visa on 14 October 2014. At [17] the Tribunal’s reference to the applicant’s failure to apply for protection until “some five months after arriving in Australia” is both in contradictory to [9] of the decision and factually incorrect. There are not five months between January and October. He applied for a protection visa some 9 months after arriving in Australia and 5 months after his visa expired. However, these factual inaccuracies, if anything, are in the applicant’s favour.
Furthermore, the reasons at [16] incorrectly note that the applicant was given an additional 30 days to respond to a request for information. This is not so. The letter granting the extension was dated 6 December 2016 and it granted an extension to 20 December 2016, with the original information to be supplied by 30 November 2016. This is an extension of 20 not 30 days. However, nothing seems to turn on this, as the applicant never provided any further explanations, either within 20 or 30 days.