Aop17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 192

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AOP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 192

File number(s):	MLG 273 of 2017
Judgment of:	JUDGE VASTA
Date of judgment:	23 September 2021
Catchwords:	MIGRATION – Protection Visa – whether Administrative Appeal Tribunal decision affected by jurisdictional error – where no error established in Administrative Appeal Tribunal’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth), s 425
Division:	Division 2 General Federal Law
Number of paragraphs:	31
Date of last submission/s:	23 September 2021
Date of hearing:	23 September 2021
Place:	Brisbane
Counsel for the Applicant:	the Applicant appearing on their own behalf with the assistance of an interpreter
Solicitor for the Applicant:	Sparke Helmore

ORDERS

MLG 273 of 2017

 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) 

BETWEEN:

AOP17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	23 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The Application filed on 13 February 2017 be dismissed.

2.The Applicant pay the First Respondent’s cost of and incidental to the proceedings fixed in the sum of $5,000.00.

3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

NOTATION:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
(Ex tempore)

JUDGE VASTA

1. On 6 February 2017 the Administrative Appeals Tribunal (“the AAT/Tribunal”), affirmed a decision not to grant the Applicant, AOP17, a protection visa.  On 13 February 2017, the Applicant asked this Court to review that decision.  The matter did not have a first court date until six months later, when Registrar Ryan made the usual directions and listed the final hearing in early 2019 on a date to be advised before Judge Hartnett, as she then was.  Her Honour, Judge Hartnett, was appointed to Division 1 of this Court, as it is now known, in early 2019, and therefore she could not hear this matter. 

2. As such, the matter stayed in the Melbourne registry until the national migration team, headed by the migration registrars, started sifting through matters as part of the new national docket. Earlier this year this matter was listed before me, and it has proceeded today, over four and a-half years after the Applicant first lodged his application.  This is a blight on this Court that the application could not have been heard earlier, and, on behalf of the Court, I apologise to the Applicant for the inordinate delay in hearing his matter.

3. The background to this matter is that the Applicant is a citizen of Taiwan.  He first came to Australia on a working holiday visa on 24 November 2012.  That visa was valid for a year, and expired on 24 November 2013.  It would seem, before the visa expired, he applied for another working holiday visa, and this was granted.  The new visa allowed him to stay in the country until 24 November 2014.  On 6 November 2014, some 18 days before that visa was to expire, the Applicant made the application for the protection visa. 

4. The Department considered this claim and interviewed the Applicant.  On 20 April 2015, the Minister refused to grant the protection visa.

5. The Applicant then asked the AAT to review that decision.  The Applicant appeared before the Tribunal on 2 February 2017 to give evidence and to present his arguments, and, as I have said, on 6 February 2017 the Tribunal affirmed the decision. 

6. The AAT had a problem with the credibility of the Applicant.  The application for the protection visa detailed that the Applicant left Taiwan to avoid persecution by financial creditors and debt collectors.  He said that he experienced intimidation, continued harassment, and was forced to change jobs and addresses while he was in Taiwan.  He said that he had been abused mentally and physically, and he feared for his safety.

7. That application stated that his parents resided in Taiwan, but he gave no details of any siblings, or even his marital status.  But the application particularised a little more what his fears were.  He said that he feared harm from his own father, and from creditors and debt collectors.  He said that he and his sister suffered family violence constantly because his father was a violent person.  He said that the police were not able to stop him from being violent towards himself and his sister when they were children.

8. In the application, he said that after he completed school he left his father, but his father would continually contact him and come to his address looking for money because the father had many unpaid debts.  He said when he did not give his father any money, his father would abuse him physically.  He said that the creditors, or debt collectors, who came to collect money from him, when he was unable to pay the money, would constantly come to his workplace or to his home to harass him, and even physically attack him, for the purposes of collecting debts from his father.  The Applicant said that each time either his father, or the debt collectors, visited him he was physically harmed by them.

9. Whilst this was the gist of the claims that the Applicant made, the Tribunal looked at some ancillary matters in coming to a conclusion that the Applicant had poor credibility.  The Tribunal looked at the marital status of the Applicant.  As earlier recounted, the Applicant gave no details on the visa application form about his marital status.  In the interview with the delegate, the Applicant was asked if he was married, and he told the delegate he was separated and had married his wife in China, but the relationship failed, though he had never divorced his wife. 

10. But on the application form for the two working holiday visa applications, the Applicant had marked that he was married.  The Applicant told the delegate, in his interview, that there were limited options on the form to reflect his marital status, but he had travelled to China to meet his wife and they were married.

11. When the Tribunal asked the Applicant about his marital status, he said to the Tribunal that he was unmarried.  When the Tribunal noted to him that he had said that he was married on the working holiday visa application forms, the Applicant told the Tribunal that he had been told by a friend that it would be easier to get a visa if he said he was married.  When the Tribunal asked him why he would provide false information to the Department, he answered that he had not made a promise to tell the truth when he completed the application forms.

12. The Tribunal said to the Applicant that, when he had been interviewed by the delegate, he had told the delegate that he was married to a woman from Fujian.  The Applicant then said to the Tribunal that he had been telling lies, and that he actually was married to a woman from Fujian, but this occurred because his financial situation was poor, and he went to Fujian to marry someone, and he was paid 50 or 60 thousand Taiwanese dollars to do so.  The Applicant told the Tribunal that the marriage was false, and it was only for the purposes of allowing the woman to obtain residence in Taiwan.

13. As the Tribunal noted, this meant that the Applicant admitted to deliberately breaching Taiwan’s immigration laws.  The Tribunal noted that the Applicant had been willing to provide false information to the Tribunal during the hearing and only altered that information when the inconsistencies were put to him.

14. The next aspect of his evidence that eroded his credibility to the Tribunal, was that he had spoken about his father to the delegate.  He told the delegate that he had been abused by his father, and he left home for boarding school, and was beaten by his father, and debt collectors began harassing him when he was 16 or 17 by coming to the place where he was working.  Before the Tribunal, the Applicant said that he was first approached by debt collectors while he was at the professional training school, and that he was about 20 years of age. 

15. The Applicant told the delegate that he had paid back 600 to 700 thousand Taiwanese dollars, and that his father at one stage owed 7 million Taiwanese dollars.  The Applicant told the Tribunal that he had paid back 300,000 Taiwanese dollars, and that he did not know how much his father owed, but that it was millions.

16. When the Applicant was being interviewed by the delegate, he told the delegate that he reported the matter to the police, but they did not do anything, and the debt collectors kept coming back and assaulting him.  He said that on one occasion he was picked up by the debt collectors, taken to a deserted place in a van, tied to a chair, three men beat him with a stick, took his wallet and money, and he was abandoned in a deserted place, and an ambulance was called.  He was hospitalised because of this.  The Applicant told the Tribunal that he was assaulted five or six times and hospitalised twice.  He said that he had no records of the hospitalisation or the reports to police, but he said that the police did not assist him and that they were useless.

17. He was asked about all these inconsistencies in his evidence, and he told the Tribunal that he was unable to recall these matters because he did not want to think about the past, and that he paid some of the money to the debt collectors at different times and borrowed money, so he did not keep track of the amount.  The Tribunal said it did not accept the applicant’s explanations for the inconsistencies, and found it not credible that he would not maintain a record of how much he had paid debt collectors for his father’s debts.  The Tribunal said that those inconsistencies were indicative of the fact that the applicant’s claims had been fabricated.

18. The tribunal referred to independent evidence from the Consumer Financial Protection Bureau and from a paper from the Routledge Research on Taiwan.  That independent evidence was that debt collectors are prohibited from harassing or harming persons in relation to debts, and that there is an independent agency which assists people who have been the victim of debt collectors.  The independent evidence also indicated that gangs are involved in debt collection in Taiwan, but that the police and other crime prevention agencies take action against those involved in harassing or harming people.  With regard to that independent evidence, the Tribunal was of the view that such evidence was inconsistent with the claims of the applicant.

19. The Tribunal also looked at the timing of the lodging of the protection visa, in that it was lodged nearly two years after the applicant had first come to Australia.  The applicant’s explanation for this lengthy delay in lodging the application was that he said that he did not know anything about protection visas, and it was only after he had a chat with some of his friends that he learned that he could apply for a protection visa.

20. At paragraph 21 of their reasons, the Tribunal said that, having considered all of the evidence, they did not accept any of the applicant’s claims.  The Tribunal did not accept that the father beat the applicant, or that the father owed money to creditors, or that debt collectors or creditors ever harassed, harmed or pursued the applicant in relation to those debts.  The Tribunal did not accept that the applicant would be harassed, or harmed, or subject to serious harm, from any persons upon his return to Taiwan.  The Tribunal found that there was not a real chance that the applicant would suffer serious harm if he returned to Taiwan.  The Tribunal found that the applicant did not have a well-founded fear of persecution if he returned to Taiwan now or in the reasonably foreseeable future.

21. Having disposed of the refugee criteria, the Tribunal then looked at the complementary protection criteria.  Having looked at the same evidence, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Taiwan, that there was a real risk that the Applicant would suffer significant harm.

22. Having come to those conclusions, the Tribunal affirmed the decision not to grant the Applicant a protection visa.

23. The application had three grounds. 

    ·The first ground is that the Tribunal fell into jurisdictional error by a failure to take into account a relevant consideration. 

    ·The second ground is that the Tribunal fell into jurisdictional error by breaching the mandatory provisions of s 425 of the Migration Act 1958 (Cth) (“the Act”).

    ·The third ground was that the Tribunal fell into jurisdictional error in its consideration of whether the Applicant would face a well-founded fear of persecution or a real risk that he would suffer significant harm.

24. The Applicant appeared before me today unrepresented, but with the assistance of an interpreter in the Mandarin language.  The Applicant was reminded, by me, of the grounds of his application.  He did not seek to expand on those grounds, but made other submissions instead.  Still, I need to adjudicate upon those grounds.

25. With respect to ground one, a relevant consideration is a consideration that is mandatory for the Tribunal to consider.  There was no identification of what relevant consideration the Tribunal failed to take into account.  Realistically, the complaint is that the considerations, which were taken into account by the Tribunal, resulted in conclusions that were contrary to the conclusions that the Applicant hoped the Tribunal would make.  That does not illustrate any jurisdictional error, and so this ground fails.

26. With respect to the second ground, s 425 of the Act is headed “The Tribunal Must Invite the Applicant to Appear”.  It is obvious that the Tribunal did invite the Applicant to appear before the Tribunal to give evidence and present arguments, and that he actually did do that.  There is no circumstance identified that would, or could, be said to breach those mandatory provisions.  This ground also fails.

27. The third ground is an invitation for merits review.  It is clear that the Tribunal did consider whether the Applicant would face a well-founded fear of persecution, or a real risk that he would suffer significant harm.  There has been no jurisdictional error even alleged, let alone identified, as to the Tribunal’s consideration.  The lengthy recitation of the Tribunal’s reasoning shows that there was no jurisdictional error in that consideration, therefore, this ground also fails.

28. In the Applicant’s oral submissions to me today, he said to me that the AAT did not process the hearing properly, and that he was in danger if he returned to Taiwan.  The Applicant said to me that “it is up to them to believe me, and they need to seek proof of what I said.”  He said that “I think they should have researched and investigated what I said.”  This is, unfortunately for the Applicant, a misapprehension of the role of the Tribunal.  It is for the Applicant to make his case to the Tribunal, and not for the Tribunal to do the investigation to make the Applicant’s case for him, or to disprove what he has said.

29. When I pointed out to the Applicant the contents of paragraph 19 of the Tribunal’s reasons, where they had actually relied upon independent country information, the Applicant’s response to me was that “The debt collectors did harm me.  They would beat me, and if I reported it to the police, the police would go after them, but after a while they (the debt collectors) would come back and harm me.”  The complaints that the Applicant made in this regard do not stand up to scrutiny.  The Applicant said that “The AAT said it was safe to return, but I know that this is not the case.”  This is no more than a disagreement with the conclusion that the AAT has made and could never be sufficient to amount to a jurisdictional error.

30. The Applicant said to me that he did not want to return to Taiwan, that it was hard after the COVID pandemic, and that he had gotten used to life in Australia.  As sympathetic as one may be to those sorts of concerns – especially noting as most people who live in this country do believe that it is the best place in the world to live – those sentiments cannot be the basis for the provision of a protection visa. 

31. Having thoroughly reviewed the decision of the AAT, I have found no jurisdictional error, therefore, I dismiss the application with costs fixed in the sum of $5000.  I will also order that the name of the Minister be amended to the current iteration of that role.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       23 September 2021